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All but the kitchen sink – heads of loss in serious injury claims.

  • July 23, 2015
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Jonathan Godfey of Parklane Plowden Chambers Leeds provides a thorough overview of the recent case of Robshaw v United Lincolnshire Hospitals NHS Trust with regards to the various heads of claim available for claimants in incidents of serious injury.

member_jonathan_godfreyRobshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB) is noteworthy for not only being the highest final court award resulting from a fought clinical negligence or personal injury trial (the overall award is likely to be in the region of £14.6 million), but also for the judicial scrutiny and consideration of a myriad of heads of future loss. Nearly all heads of future loss were in dispute in a quantum only hearing lasting 11 days, so much so, that the judgment of the trial judge, Foskett J ran to 113 pages and prompted him to remark “… I have had to consider important issues such as life expectancy, accommodation …………. and some aspects of the care regime as well as some, frankly trivial issues such as whether there should be a cord operated curtain rack in James’ new home …… As it is, the fact that so little has been agreed has led to a very lengthy judgment“.

The judgment, albeit, that the facts are specific to each case, reads as a veritable treasure trove of matters pertaining to future loss in cases of this type. A comprehensive review of the judgment is a must for those practising in cases of this type. In the meantime, I have sought to set out those matters which I consider to be of particular interest to the practitioner with a license left to revert to the judgment for the full plethora of contextual detail.

THE FACTS

It was not disputed that the Claimant’s birth in 2002 had been negligently mishandled. The result was that the Claimant sustained cerebral palsy leading to significant disability. Judgment for damages to be assessed had been entered on 31st January, 2013. As at the date of the quantum trial, the Claimant was 12 years and 4 months old.

One area where agreement had been reached prior to trial, subject to the court’s approval, was assessment of general damages for pain, suffering and loss of amenity in the sum of £290,000. Such sum indicated the severity of the brain damage and the disability.

LIFE EXPECTANCY

The “vexed“issue of life expectancy was firmly in dispute. The Claimant contended for a life expectancy of 70-71. The Defendant contended for a significantly reduced figure of 53. Unfortunately, the Defendant’s paediatric neurologist, Dr Ferrie, was unable to attend to give evidence at trial in respect of his views as to life expectancy. Dr Rosenbloom gave evidence on behalf of the Claimant. The experts in their memorandum of agreement and disagreement had concluded that “in spite of the extent of the difference between us we each accept that the other’s estimate is reasonable whilst preferring our own“. Foskett J considered the task of trying to reconcile or choose between opposing views that were recognised by experts in their field to be reasonable as being even more difficult than choosing between two views that each opposing proponent regards as unreasonable or unsustainable. The temptation was of course to simply split the difference, but Foskett J made it clear that it was accepted that “ultimately I must make an assessment based upon all the evidence that I consider goes to the issue“. In so doing, Foskett J approached his assessment of the Claimant’s life expectancy based upon a consideration of all the pertinent evidence, namely statistical data and expert and factual material.

In the deliberations, regard was had as to whether the Claimant should be categorised a “self-fed“or “fed by others“for the Strauss data and the applicability of “favourable economics“. Favourable economics refers to the argument that a claimant who receives a large award of compensation and is consequently able to pay for good quality care, accommodation , treatment and equipment is in a much better position than those in the same grouping but without recourse to similar funds. In the former case, Foskett J considered that the Claimant fell between the two Strauss categories, and in the latter case, deemed “favourable economics“applicable (with a consequent increase in life expectancy).

Foskett J’s findings resulted in his assessment of life expectancy for the Claimant of 63.

 VALUATION OF ASPECTS OF THE CLAIM

The starting point was not at issue : a Claimant is entitled to damages to meet his or her “reasonable requirements“ or “reasonable needs“ arising from the negligently caused disability see Sowden v Lodge [2004 ] EWCA Civ 1370 and should receive full compensation. Where however there is in fact a range of “ reasonable“ options to meet the needs is the court permitted or obliged to cheapest  option or that which the claimant advances?

In Whiten v St George’s [2011] EWHC 2066 QB Swift J adopted the following approach:

“The claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is “reasonable“ , I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived from the claimant for that item“.

Foskett J had regard to Whiten and also to the decision of Warby J in Ellison v University Hospitals Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB), in which, the defendant had sought to widen the scope of Swift J’s judgment in Whiten by contending for a more general proposition that an item should be disallowed if the cost of the item was disproportionate to its benefit. Warby J rejected the contention advanced and emphasised that what Swift J had in mind “ in determining whether a claimant’s reasonable needs require that a given item of expenditure should be incurred, the court must consider whether the same or substantially similar result could be achieved by other, less expensive means … “.

Foskett J remarked that he was disinclined to express any concluded view of his own on any issue of principle as it was difficult to find any head of claim in the case at hand that could be affected by the resolution of any such issue of principle. He did however “tentatively“express agreement with Warby J’s analysis of Swift J’s formulation in Whiten as the correct test.

At Paragraph 166 of the judgment, Foskett J went on to state (and the citing of the full paragraph is necessary to relay the position):

“to my mind , in assessing how to provide full compensation for a claimant’s reasonable needs, the guiding principle is to consider how the identified needs can reasonably be met by damages – that flows from giving true meaning and effect to the expression “reasonable needs“. This process involves, in some instances, the need to look at the overall proportionality of the cost involved, particularly where the evidence indicates a range of potential costs. But it all comes down eventually to the court’s evaluation of what is reasonable in all the circumstances: it is usually possible to resolve most issues in this context by concluding that solution A is reasonable and, in the particular circumstances, Solution B is not. Where this is not possible, an evaluative judgment is called for based on an overall appreciation of all the issues in the case including (but only as one factor) the extent to which the court is of the view that the compensation sought at the top end of any reasonable cost will, in the event, be spent fully on the relevant head of claim. If, for example, the claimant seeks £5,000 for a particular head of claim, which is accepted to be a reasonable head of compensation, but it is established that £3,000 could achieve the same beneficial result, I do not see that the court is bound to choose one end of the range or the other: neither is wrong, but neither is forced upon the court as the ” right ” answer unless there is some binding principle that dictates the choice. It would be open to the court to choose one or other ( for good reason ) or to choose some intermediate point on the basis that the claimant would be unlikely to spend the whole of the £5,000 for the purpose for which it would be awarded and would adopt a cheaper option or for some other reason”.

LOSS OF EARNINGS

The claimant will never be able to work.

But for his injuries, what kind of employment would the Claimant have been capable of achieving?

Foskett J heard evidence in relation to the pattern of employment in the Claimant’s family, which was based around the engineering world. Taking into account the 2014 ASHE average annual gross earnings for various engineering professions it was considered that a realistic figure for the Claimant’s annual gross earnings over his working life from age 22 was £42,000.

A minimal deduction of £300 was made to reflect expenses in connection with employment.

Retirement age was held to be 70. The Defendant had contended for 67.

A modest award of £7,500 was made to reflect earnings as between 16-22 arising from part time earnings at weekends and holidays.

As an aside from the Robshaw case, it is worth noting that consideration of potential loss of earnings should be had in all cases involving young children, and specifically also taking into account those cases where the injured child is from a disadvantaged background and who at first blush has limited employment prospects see Tate v Ryder Holdings [2014] EWHC 4256 (QB).

ACCOMMODATION

At issue was whether the claimant’s property should be demolished and a new property built or whether the existing property should be adapted. The “ball park” cost of demolition followed by a new build was £50,000. The Claimant contended for the rebuild as it would enable the construction of a purpose built , energy and cost effective property ; the timing and cost could be assessed more accurately and there would be savings in VAT. The Defendant simply contended that the additional expenditure should not be something for which it should be responsible. In cross examination, the Defendant’s accommodation expert candidly acknowledged that he “probably would want to knock it down and start again“. Foskett J determined that a £50,000 increase in spending could achieve a very considerable saving in annual costs and would provide an “ideal“ home being designed with the claimant’s needs in mind, and accordingly such a proposition made the immediate cost of demolition and building from scratch reasonable and a legitimate sum to claim from the Defendant.

HOME POOL

It was agreed as between the parties that swimming was a beneficial activity for the claimant. Dr Rosenbloom and Dr Ferrie agreed that for the Claimant to undertake a water based activity he required an accessible pool with a suitable hoist or graded wheelchair access, suitable changing facilities and warm water. The swimming pool close to the Claimant’s home (some 40 minutes’ drive away) kept the water at 29 degrees C, which was too cold. A temperature of 32 degrees C was needed. Seating for the pool hoist at the public pool was deemed inappropriate. On behalf of the Claimant it was contended that home based provision of a pool was needed to allow for his love of swimming.

The Defendant contended that the evidence in support of home pool provision fell short of those situations where the courts had previously been persuaded that a home pool was reasonably required (more usually a hydrotherapy pool). There was no clinical or therapeutic need for it.

Foskett J considered that the other cases did not provide the answer to the question in this case. The need for a home based pool was made out “on the basis of the real and tangible psychological and physical benefits” that would be provided to the Claimant from swimming and which could not be obtained in a convenient local public facility. 

The size of the pool allowed was slightly smaller than that claimed on behalf of the Claimant.

The location and provision of adequate facilities at a public swimming pool will be paramount in establishing any claim in this regard.

MISCELLANEOUS ISSUES

Perusal of the remainder of the judgment refers to items that are readily claimed in cases of this type, namely care, gardening, occupational therapy equipment, deputyship costs etc., but it is also interesting to note the miscellany of other items claimed, including amongst others, a claim for an adapted motor home. The claim for the adaption to the motor home succeeded on the basis that the Claimant came from a family with a particular penchant for camping and caravanning.

CONCLUSION

Whilst cognisance has to be had to each case being dependent upon its own facts, the detailed and very reasoned judgment of Foskett J in relation to disputed items of heads of loss provides a very accessible ready reckoner to assist in preparing and advancing cases of this genre. And yes, an award was made for a cord operated curtain track, albeit that at Paragraph 272 (iii) of the judgment it is recognised that it was not actively opposed by the Defendant.

Jonathan Godfrey can be reached at:

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