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Key highlights from record-breaking court awarded clinical negligence trial
William Latimer-Sayer highlights some points arising out of the record-breaking award in Robshaw v United Lincolnshire Hospitals NHS Trust  EWHC 923 (QB).
The highest final court award following a contested personal injury or clinical negligence trial has remained static since the decision of Lloyd-Jones J, as he then was, in A v Powys Health Board  EWHC 2996 (QB). The lump sum award of £10.7m for an Irish national, the first to break the £10m barrier, set a new high watermark at the peak of the Celtic Tiger, moments before the financial markets came crashing down and the world plunged into a deep and unforgiving recession. Whilst there have been a number higher reported and unreported settlements since, this record for a court award has stood the test of time and has been difficult to surpass, perhaps not completely unrelated to the years of austerity which followed.
On 1 April 2015 Foskett J handed down judgment in the case of Robshaw v United Lincolnshire Hospitals NHS Trust  EWHC 923 (QB). The claimant, James Robshaw, suffered from severe cerebral palsy due to mismanagement of his birth. Liability was admitted but quantum was disputed and Foskett J heard an 11-day quantum trial in January 2015. Although the NHSLA’s decision to fight more cases has led to several recent quantum trials including Reaney v (1) University Hospital of North Staffordshire NHS Trust and anor  EWHC 3016 (QB)  EWHC 3016 (QB), Ellison v University Hospitals of Morecambe Bay NHS Foundation Trust  EWHC 366 (QB) and Totham v Kings College NHS Foundation Trust  EWHC 97 (QB)  EWHC 97 (QB), Robshaw is the first major quantum trial in which virtually all heads of future loss were disputed since Swift J’s judgment in Whitten v St George’s Healthcare NHS Trust  EWHC 2066 (QB).
In a detailed and thorough judgment spanning 113 pages Foskett J assessed various heads of loss which although fact-specific may give useful guidance to practitioners in this area. The total final award, and the form of the same, is yet to be finalised. However, preliminary calculations, would suggest that subject to any successful appeal, the total final award is likely to be in the region of £14.6m. Whilst the judgment repays careful reading, the following points may be of interest.
Basis of Assessment
In both Totham and Ellison the defendant mounted an attack on the test to be applied when assessing damages. An attempt was made to put a gloss on the fundamental principles of putting the claimant back in the position he would have been in but for the negligence and the assessment of reasonable needs or reasonable requirements. It was argued that Lloyd-Jones J was wrong in A v Powys to reverse the burden of proof and where it is found that the item claimed by the claimant is reasonable to allow it even though the defendant might also have put forward a similar item which cost less but was also reasonable.
Perhaps the clearest exposition of these arguments is that set out by James Rowley QC in Serious Personal Injury a Quantum Update JPIL (2008) No.2 pp 109-145, summarised briefly in the Facts & Figures 2014/2015 (see further my response A Quantum Update – Pushing Boundaries JPIL (2009) No.2 pp 140-163).
Foskett J was disinclined to express any concluded view since the defendant was unable to identify any heads of loss where his decision on the point made a material difference to the outcome. However, he tentatively agreed with Warby J’s analysis in Ellison. Warby J rejected a contention that there was a general principle that an item should be disallowed if the cost of the item was disproportionate to the benefit received – a point which had been argued to disallow a claim for a hydrotherapy pool because the cost did not justify the pain relief provided.
Foskett J went further and at para 166 stated as follows:
“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”. That 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 upon 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 bracket of 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 level 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”.
There was a significant dispute regarding life expectancy. The claimant argued for a life expectancy to age 70-71. The defendant put the claimant’s life expectancy at 53.
Due to unforeseen circumstances the claimant was unable to call his paediatric neurologist, Dr Ferrie, to give oral evidence at the trial. Fortunately, life expectancy was the only point upon which his evidence was relied upon to any great extent. At a hearing before the trial commenced Foskett J ruled against the defendant’s application to adjourn the trial so that Dr Ferrie could attend to be cross-examined.
Notwithstanding Dr Ferrie’s absence, Foskett J held that he was not bound to accept the evidence of the defendant’s paediatric neurologist, Dr Rosenbloom, regarding life expectancy. He followed the approach of Swift J in Whiten which was to analyse the relevant literature and make his own assessment of life expectancy based upon all the evidence, including statistical, expert and factual material.
The area which caused most controversy was whether the claimant should be categorised as being “self fed” or “fed by others” for the purposes of the Strauss data. Foskett J found that the claimant did not fall neatly into either category and placed him between the two categories (effectively adding 4 years for some limiting feeding skills). In reaching this decision he took into account the claimant’s ability to use of a mechanical device, a Neater Eater, and also the evidence of Kay Coombes, the speech and language therapist instructed by the claimant who was adamant that the claimant’s feeding skills were likely to improve over time.
Foskett J also considered the applicability of “favourable economics”. This is the common sense argument that a claimant who receives a large award of compensation and is able to pay for good quality care, accommodation, equipment, treatment and therapies etc is in a better position than others in the same cohort without access to the same funds. Whilst such arguments are readily understandable, there is little hard data to support an upward adjustment to take account of these factors.
Courts have generally been more willing to uplift life expectancy due to favourable economics in spinal injury cases rather than cerebral palsy cases. Respected experts, such as Dr Rosenbloom, are often reluctant to increase life expectancy for these reasons in the absence of scientific data establishing a clear link between a superior financial situation and improved life expectancy. However, in evidence Dr Rosenbloom accepted the intuitive relationship between the two and confirmed he had sought funding to carry out research in the area, which had never been granted (perhaps as Foskett J explained because to carry out such research prospectively rather than retrospectively would not be ethical).
Foskett J added two years to take account of favourable economics. It is unclear whether this point was argued in Whiten. However, Foskett J accepted that logically the reasons why favourable economics would make a difference in spinal injury cases should also affect life expectancy in cerebral palsy cases. This adds support to MacDuff J’s approach in Lewis v Shrewsbury Hospital NHS Trust LTL 29/1/07 who had increased the claimant’s life expectancy by 3 years. Since the court has a duty to assess life expectancy objectively, this point should be borne in mind by practitioners whether or not independently supported by expert medical evidence.
In the end Foskett J’s findings led to a life expectancy to age 63.
The central issue was whether the property the claimant had bought should be demolished and a new property built in its place or if the existing property should be kept and a large extension built instead.
The advantages of demolition were that there would be no VAT to pay on a new build, there were likely less surprises building from scratch and therefore a more accurate estimate of costs could be given and the building could be built to modern standards thereby reducing the long-term running costs.
The defendant calculated the difference between the two options at being about £50,000. In a surprising admission during cross-examination David Reynolds, the defendant’s accommodation expert, accepted that if it was property he would knock down the existing building and start again. Given the defendant’s concession that the existing building did not allow for full wheelchair manoeuverability, the judge had no doubt it was reasonable to demolish the existing building and rebuild.
The claimant contended for a home pool because there were no locally suitable facilities for swimming in warm water, which the parties agreed was a beneficial activity for him.
Foskett J allowed recovery of a home pool (although 5m x 3m rather than the 7m x 4m claimed). Importantly this was not justified on medical or therapeutic reasons as in the case of Ellison. The reason for the home pool was that the claimant loved swimming but there were no local leisure facilities that were accessible or appropriate for him to use i.e. with suitably warm water, hosting and changing facilities etc (which would usually mean a hydrotherapy pool).
Credit goes to Susan Filson, the expert physiotherapist instructed by the claimant. At very short notice, she visited the three leisure facilities put forward by the defendant’s expert as being viable options. Using photographs she had taken of the pools she was able to explain graphically to the judge why each one was unsuitable and failed to meet his needs.
This is thought to be the first occasion where a home pool has been allowed for “swimming” i.e. for non-therapeutic reasons such as exercise or pain control. The claimant’s location will be crucial in future cases. In Whiten a home pool was disallowed because the long-term property had not been bought yet and it was possible for the claimant to ensure that a property was bought near to a suitable facility. Lincolnshire currently suffers from a dearth of suitable hydrotherapy facilities. However similar arguments may not succeed in other parts of the country such as Guildford where there are facilities which can be hired on a regular basis.
Adapted Motor Home
The claimant came from a family of campers and caravaners. His grandparents owned a touring caravan. Before he became too big to use it, they would regularly go away as a family in the caravan.
In light of his injuries, it was agreed that the only way the claimant could return to this form of activity was by the provision of an adapted Kon Tiki motorhome costing around £96,000 (plus annual refurbishment costs of £1,000). This motorhome would not only provide suitable place for the claimant to sleep, it would also provide an adapted toilet with hosting. It would allow the claimant to go away without significant planning, thus restoring an element of spontaneity as well as being the only way he would be able to attend festivals or concerts when he otherwise would have camped or stayed in a local B&B.
This is thought to be the first case in which such a vehicle has been recovered. There is no doubt that the long family history of camping and caravaning was fundamental to this item succeeding. However, where appropriate it is hoped that Foskett J’s acceptance of this claim may encourage other judges to make similar awards where the facts suggest an adapted motorhome is reasonably required in order to restore the claimant to the sort of life that he or she would have lived in the absence of his or her injuries.
Court of Protection
Those representing claimants in clinical negligence cases will be used to seeing statements / reports from Hugh Jones who is routinely engaged by the NHSLA to advise upon the costs of deputyship.
In this case the defendant requested specific disclosure of the deputyship files. All 21 lever arch files were provided to Hugh James who decided not to read them before preparing his statement of costs or the joint discussion with his opposite number, Christine Bunting. Without appreciating the scale and complexity of the case, Hugh Jones had made a number of unwarranted criticisms of the claimant’s deputy, in particular suggesting that she had been undertaking work that the claimant’s case manager should have been doing.
Foskett J accepted that this was not a “run-of-the-mill” cerebral palsy case (if there was such a thing). He allowed deputyship costs of £43,500 in Year 1, £30,900 in Year 2, £20,800 from Year 3 to age 18 and £23,200 from age 18. In addition he allowed a contingency of £40,000 plus further costs for applications, statutory will charges, compliance with pension obligations and accountancy.