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LM (A Child and Protected Party by his Father and Litigation Friend SM) v Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC 2279 (QB) - Richard Baker, 7BR

In the Queen’s Bench Division before Mrs Justice Cox.

The Claimant, a man now aged almost 19-years, alleged that he suffered severe brain damage because of breach of duty at the time of his delivery and birth. Liability issues were compromised in 2013 and judgment entered on the 24th June 2013 for damages to be assessed at 50% of the full value of the claim.

The Claimant suffered a challenging combination of disabilities with bilateral tetraparetic cerebral palsy co-existing with severe cognitive, social and communication impairments and profound autism. The Claimant’s parent’s separated when he was a young boy and he was cared for by his father for a number of years before he went to live with his mother and her new partner. He lived with his mother and step-father at the time of trial, who were assisted by carers and a case manager

Although a number of issues were agreed before trial There remained significant disputes between the parties, particularly concerning the Claimant’s future care and case management as well as his future needs in relation to occupational therapy, equipment, transport and accommodation. The nature and extent of the claimant’s difficulties and manageability, both current and future, was at the core of these disputes.

Addressing the issues as they appeared within the judgment:

Vehicles:

The Defendant raised significant issue with the decision of the Claimant’s parents to purchase a Land Rover Discovery, a decision made with the agreement of the Deputy and on the advice of an Occupational Therapist. The vehicle was not an approved vehicle under the Motability Scheme, however it was accepted that the Defendant could not insist that a vehicle was purchased through that Scheme. However, the Defendant argued that the Land Rover was unsuitable and inappropriate for the Claimant’s needs and constituted an unnecessary extravagance, thereby contending that the Claimant’s parents had behaved unreasonably in purchasing it. Mrs Justice Cox considered that it was implicit in the cross-examination of the Claimant’s parents that they had deliberately decided to opt for a substantially more expensive car than was needed, and that they were motivated by greed. She vehemently rejected this suggestion by the Defence, highlighting that the Claimant’s Mother felt uncomfortable owning a car she regarded as “above our station” because of her son’s disability. Her Ladyship found that the car was a reasonable purchase since it could be readily adapted to suit the Claimant’s needs, represented a good investment and was purchased in adherence to professional advice. This decision reflected evidence given at trial by the Deputy, who was cross-examined on the issue, that the retained value of the Land Rover meant that it was more economical to purchase that, than a similarly sized Ford or Volkswagen, which would experience greater depreciation over their lifetime.

Interest

The Defendant contended that the Claimant should have given credit for the interim payment from the interest payable on general damages, rather than special damages. An argument that might potentially have saved them thousands of pounds in interest. Cox J. concluded that the interim payment should be set off against interest on special damages. In reaching this decision she considered that it was significant that the Defendant had not sought an agreement to offset against interest on general damages at the time of negotiating the interim payment and she made commented that it would normally be assumed that the purpose for which an interim payment was sought would be to fund expenditure which thereafter becomes part of the special damages claim, applying Cobham v Eeles [2009] EWCA Civ 204.

Multipliers

It was agreed that the Claimant would have a reduced life-expectancy. The parties disagreed, though, as how this should be reflected within the multipliers. In particular, dispute arose as to whether Table 28 is the correct Ogden Table to use or whether Table 1 is more appropriate. It was held that Table 28 was the correct table, adopting the approach of Swift J in Whiten v St George’s Healthcare [2011] EWHC 2066 (QB) and Foskett J in Reaney v University Hospital of North Staffordshire NHS foundation Trust [2014] EWHC 3016 (QB) and reiterating their reasoning and their conclusions. It was therefore appropriate for the Claimant to apply a multiplier for a fixed term relating to the number of years life that he had remaining, rather than by undertaking the less favourable approach of adapting the Table 1 life-multipliers.

Pension

The Judgment considered the assessment of future loss of earnings and raised an important issue regarding pension loss in such cases. The Defendant made no allowance for loss of pension. It was held that the claimant was entitled to damages for loss of pension. He was entitled to his full loss of earnings, which included any additional financial contributions his employers would make towards a future pension. Her ladyship made reference to the fact that employers are obliged to make such contributions in compliance with the requirements of recent pension legislation. The Claimant therefore recovered an additional 3% on his lost-earnings, representing those contributions.

Care, OT and AT

As might be expected, the Claimant’s care, equipment and AT needs represented a major area dispute between the parties. In her assessment of each matter, Cox J. emphasised that a primary consideration was ensuring that the Claimant had a real quality of life and that therefore if the item claimed will enhance his quality of life he is entitled to such, provided the costs are reasonable. When considering whether the Claimant needed one or two carers she had particular regard to the evidence of the Claimant’s Educational Psychologist, that the Claimant’s day should be filled with activities to stimulate him, which necessarily required two people so that one could prepare an activity whilst another was occupying the Claimant with a different activity. The care provision reflected similar provision of 2:1 support at the Claimant’s school, and also took into account the risks arising spontaneously in certain environments because of the Claimant’s combination of severe learning difficulties and autism.

Likewise, the court favoured the more generous provision of equipment made by the Claimant’s OT and AT experts on the basis that these would provide the Claimant with a positive, therapeutic and educational environment in the future and thus afford his reasonable quality of life. She rejected the very basic provision by the Defendant’s OT expert as wholly inadequate.

Holidays

The Claimant claimed regular business class flights on the basis that he had relations in Jamaica and had enjoyed travelling there in the past. The Claimant argued that his behavioural difficulties and his incontinence made it difficult to manage him safely and with dignity in economy. Cox J considered that the claimant’s particular behavioural difficulties and symptoms of his severe condition, including his unpredictability regarding strangers in close proximity to him, all warranted the extra costs and supplementary space and facilities that travelling business class offers. The costs of business class travel for the claimant, one carer and one carer/parent were all permitted.

Accommodation

The Claimant’s natural parents lived separately. They therefore claimed the costs associated with the purchase and adaptation of two property the first being the principal home where he would reside with his mother, stepfather and younger siblings, and the second a property where he can stay with his natural father which would also accommodate his carers. The Defendants wholly disputed the claim for the second property, though did not advance any principled argument save that such an award would amount to a wholly unjustified extravagance and that the type of award required exceptional and compelling reasons that were absent from this case.

The Claimant’s position was that he had a right to family life and frequent contact with his natural father. In the context of this case, the Claimant’s natural father had devotedly cared for his son for the first seven years of his life, and had continued to share that care with the Claimant’s mother until September 2013.

Cox J. concluded the wishes of the natural father to resume contact with his son and restore the relationship to be entirely genuine. She accepted that the costs of purchasing and adapting a property should meet no resistance in principle. She further accepted the analogies drawn with a claim for adjustment to an existing family home or replacement holiday home. She observed force in the point that if parents who were divorced and living separately yet shared the care of a child had to then endure a severe and negligently inflicted injury to that child, necessitating adaptation to their respective properties or the purchase of properties for adaptation, it would appear to be implausible that that child would be denied a claim for those adaptations or purchases for either parent. Importantly, she concluded that the Claimant was entitled to the costs of the second property. The factors of consequence were the significant history of shared care, the natural father’s extensive involvement in his son’s life for many years, the fact the costs involved were relatively modest and above all the consideration that the restoration of the relationship was in the Claimant’s best interests.

Costs

Cox J awarded indemnity costs against the Defendant as a consequence of their failure to properly engage in negotiations with the Claimant before trial; their failure to accept a non-part 36 compliant offer made by the Claimant and which was subsequently bettered; and because of their decision to make specific attacks on the credibility of the Claimant’s parents during trial, attacks that were not supported by the evidence and that were roundly rejected by the court.

The case is subject to an application by the Defendant to the Court of Appeal for permission to appeal the award of damages and the decision to award indemnity costs.

The Claimant was represented at trial by Derek Sweeting QC and Richard Baker of 7BR

Richard Baker
7BR
London

Image ©iStockphoto.com/Sohl

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