Smith v East and North Hertfordshire Hospitals NHS Trust

The Claimant was born on 24 April 2001 and is now 7. When she was 6 days old at the Lister Hospital Stevenage she was negligently given a grossly excessive infusion of dextrose which caused severe and permanent brain damage. Liability was eventually admitted on 28 November 2006 but quantum of damages is substantially in issue.

When the Claimant was aged 4½ years, she was examined for the second time by Professor Levene who identified a very mild spastic hemiplegia affecting her left side. She suffers from autistic spectrum disorder with severe communication problems. His view then was that her intelligence was probably in the severe learning difficulty range. Although she had suffered convulsions, they had not occurred since 2003 and have not occurred since. At the age of 7, she was examined again but there was little progress in her communication skills in that she had virtually no expressive communication and indicated her needs to her parents either by showing them what she wanted or taking their hand and leading them. She had only 5 signs which she used reasonably accurately. She continued to have severe learning problems and her IQ was estimated in the severe disability range. She had progressed in her musical interest and skills, was having regular music therapy and was able to pick out and play tunes from memory on a keyboard. She was identified as having perfect pitch. She was very sensitive to extraneous noises making outings difficult. Her attention span was poor and she had little interest in television or videos other than programmes containing live music. She remained incontinent at night. Professor Levene confirmed the diagnosis of autistic spectrum disorder and noted that her interaction with others had improved. She continued to show very subtle signs of cerebral palsy but they were so mild that he did not consider she had functional cerebral palsy but rather clumsiness probably consistent with her intellectual impairment. She did not enjoy outings probably because of her sensitivity to noise and remained easily frustrated developing temper tantrums usually provoked by frustration or not getting her own way. She continued to sleep poorly with her parents needing to get up at least once a night sometimes more frequently. On many occasions she would go into her parents’ bedroom and they would take her back in to her own room. She remained entirely dependent on others for her care and supervision and that would continue for the rest of her life. She would require 2 responsible adults to provide care and attention for her and minimise the risk of danger because she was independently mobile and able to undertake transfers from bed, toilet and elsewhere. She was very impulsive and might run off into the road unless constantly monitored. It was also Professor Levene’s view that she would require a night carer and in view of her frequent waking and wandering around the house the night carer would require to remain awake. It was unlikely in his view that she would achieve any meaningful communication skills other than indicating her most basic needs. She would continue to be unable to manage her own affairs and remain open to exploitation by others. She was examined by Dr Rosenbloom on behalf of the Defendant in March 2008. He identified evidence of autism in her continued immaturity and abnormal social communication, and very severe learning difficulties as well as mild cerebral palsy. She was incontinent at night and there was great difficulty getting her off to sleep as she required to be in a very quiet dark atmosphere with her father to stay with her for up to 3 hours before she fell asleep. Then she woke easily. That continuing pattern was confirmed by Mr and Mrs Smith. Dr Rosenbloom expressed the view that she would continue to function as an individual with a combination of very severe learning difficulties and severe social communication difficulties, that is severe autism. It was unlikely she would ever learn to interact normally with others or to use speech, and in consequence she would remain socially isolated with the effects compounded by her severe learning difficulties. She would never have the capacity to live independently or to manage her own household and even with a care assistance regime in place she would never be employable. There was a difference of view between the experts as to the prognosis for her disturbed sleep pattern. Dr Rosenbloom conceded that at present the Claimant would require waking night care. However it was also his view that only a very small minority of children with severe disabilities including autism continued to have significantly disturbed sleep patterns as they grew older. It was therefore reasonable to anticipate that given appropriate input her sleep pattern could be improved significantly so that sleeping rather than waking night care would be adequate. When Professor Levene and Dr Rosenbloom met Dr Rosenbloom again expressed the view, as he did when he gave evidence, that irrespective of pattern and degree it was wholly exceptional for an autistic child to continue to have disturbed sleep patterns into adult life. Although Professor Levene acknowledged less experience in the long term management of children with autism he expressed the view (whilst deferring to Dr Gringras) that in the light of the severity of the Claimant’s sleep problems it was unlikely that significant resolution would occur in time. As to a trial of medication including melatonin, that with a period of observation was recommended and Mrs Smith, the Claimant’s mother and litigation friend, said that they would consider that but that they had concerns about drugs and their side effects. Dr Rosenbloom acknowledged that it was ultimately a matter for the parents.

Dr Gringras a consultant in neuro paediatric disability who had undergone additional training in sleep medicine in the United States of America and also ran a sleep disorder clinic at Guys hospital identified severe sleep problems in the Claimant that impacted on the whole family. She had great difficulty falling asleep, requiring her parents’ presence until late in the evening and was then very easily woken. She could wake at 1 or 2am and then be awake for the rest of the night and at best would sleep until 5am. She did not catch up on sleep during the day. The pattern had considerable impact on the family, who had to keep quiet in the evening and were chronically tired during the day. He said that the combination of autism, severe learning difficulties and the possibility of epileptic seizures put her in a category where up to 90% had sleep disorders. He identified no change in the sleep difficulties that the Claimant had suffered in recent years and as to medical intervention he thought it might result in an extra half hour’s sleep but would make little difference to the Claimant waking up in the middle of the night. In his view there was a very significant chance that the sleep problems would continue and even if there were half an hour’s extra sleep there would not be normalisation of the sleep pattern and there would still be a very short sleep night. As to the suggestion that the situation would improve with maturation, Dr Gringras pointed to the lack of developmental progress in the Claimant. He acknowledged that with behavioural therapy and medication improvement was possible but there would not be normalisation of the sleep patterns.

In the result, the Claimant’s disability is put at the very top end of the scale in terms of her loss of ability, amenity and enjoyment of life. In summary she :

As to general damages for pain, suffering and loss of amenity, the Claimant’s case in my judgment is in the very severe brain damage category of the JSB Guidelines with a range from £165,500 to £235,000 which the Claimant submits updated by 3% annual inflation makes the range about £175,000 to £250,000. The ninth edition of the Guidelines published since the hearing increases the figures to £180000 and £257750. It is accepted that the Claimant’s case is not at the very top end of the range because her insight is limited and her physical limitations are moderate but other factors are also relevant to the figure, namely frustration distress and unhappiness suffered by the Claimant in relation to trivial and unimportant events, her almost normal life expectancy, the fact she will always be totally dependent on others and with severe communication difficulties, her almost total loss of intellectual and social amenity, and a significant risk of future epilepsy. The guidelines identify the degree of insight, life expectancy and the extent of physical limitations as elements affecting the level of award. In the Claimant’s case, there is no insight, but the life expectancy is very long. Physical limitations are moderate. In my judgment the appropriate figure for general damages is £210,000.

It is agreed that taking interim payments into account interest of 0.41% should be added to the general damages. Thus £210,000 X 0.41% = £861.

There are issues between the parties both as to the principle of assessment and as to the appropriate amounts. The Claimant submits that the appropriate measure of damages for the element of gratuitous care should be based on Mrs. Smith’s past earnings, on the basis that without this incident, she would have continued to work and in consequence of it had to give up. The alternative approach is to value the gratuitous care by reference to its cost and then to discount the figure to take account of the gratuitous nature of the care. There are differences between the parties in relation to the hours of gratuitous care attributable to the Claimant’s disability over and above that which would have been provided in any event and as to the appropriate discount for the gratuitous nature of the care.

Mrs Smith is a primary school teacher and before the birth of their other daughter Phoebe on 24 July 1998 had taught for 8 years at an infant school in Hitchin. She gave that up on the birth of Phoebe but shortly afterwards began to work as a supply teacher for a period on average of 1 or 2 days a week. Had the Claimant not suffered this disability, Mrs. Smith said that she would have continued work either full time or as a supply teacher, with Phoebe at nursery or at school and with a child minder to look after the Claimant. It was suggested to her that in the light of the intention to have a third child, she would not have returned to work but she disputed that. The court is concerned in seeking to compensate for the provision of gratuitous care to achieve a proper and reasonable figure. Although one method of achieving that may be in some instances to award a figure by way of loss of earnings, the more usual approach is to award a sum based on commercial rates of care but having regard to the gratuitous nature of the services, discounting that sum by a percentage amount. In this case having regard to the intention to have a third child, I think it doubtful that Mrs. Smith would have returned to work at any rate for time being while the children were young, and in my judgment the fair and reasonable value of the care provided gratuitously is arrived at by taking the commercial value of such care and discounting it appropriately as the circumstances of the case require.

Within this framework there are further matters in issue between the parties. On behalf of the Claimant care is claimed from 1 September 2001 for 21 hours per week at hourly rates increasing from £5 - 29 to £8 - .43. There are some differences in the assessment of the extra hours of care attributable to the Claimant’s needs, but there is also a difference of approach in that Ms Slawson on behalf of the Defendant calculates her figures on the basis of the basic hourly rate whereas Mrs Sargent on behalf of the Claimant employs the aggregate rate. In the result Mrs Sargent arrives at an overall figure of £82,997.70 and Ms Slawson at £61,332. Mrs. Sargent said in evidence that with a family like this there were very high levels of care and it was appropriate to apply the aggregate rate. The Claimant’s case is that the demanding and exhausting but devoted nature of the care given at antisocial hours during day and night and at weekends requires that compensation be assessed using an aggregate hourly rate. In evidence, Ms Slawson accepted that there were cases where the aggregate rate was appropriate though she did not accept that it was in this case. In my judgment in the circumstances of this case the aggregate rate is the appropriate rate for the assessment of compensation, and I accept as reasonable and appropriate the assessment of extra hours of care reached by Mrs Sargent and set out in Appendix 1 to the Claimant’s updated schedule of damages annexed hereto. That figure is £82,997.70. In addition however both parties concede that on this basis of assessment the sum must be discounted. In Evans v Pontypridd Roofing Limited (2001) EWCA 1657 the Court of Appeal endorsing a deduction of 25% in that case identified the need for an assessment to produce a fair result in a particular case. It was pointed out that tax and national insurance would not be payable, that the expenses of earning the commercial rate would not be incurred, and that care had been provided out of love and affection and given in the carer’s own home, as support for a discount of one third. The Claimant submits that 25% should be the maximum deduction having regard to the very demanding nature of the care and that Mrs Smith ceased work. It is also pointed out on behalf of the Claimant that tax and national insurance would probably be significantly less than 25%. In my judgment the appropriate deduction to achieve the fair result in this case is 25% making the net figure £62,248.28.

The larger figures under this head are agreed or accepted by the Defendant in the light of evidence called. As set out in appendix 2 to the Claimant’s amended schedule of damages item (f) Motability Scheme the Claimant concedes some discount on the basis that the family would have needed to replace their car at some stage, and it is agreed at £10,000. Item (e) Woolgrove School is agreed at £2100; and item (d) Tracks pre-school is agreed at £3360. The Defendant takes issue with the amounts claimed for hospital visits under items (a), (b) and (c) and submits that they are not adequately established on the evidence. The total amount claimed under this head is £1300 and the Defendant concedes that some allowance should be made in respect of these visits. Although the total amounts are not made out on the evidence, in my judgement it is fair that some allowance should be made and in my judgement the fair figure is £700. The total figure under this head is therefore £16,160.

On 31 October 2003 when the Claimant was 2 years 6 months old 3,Avocet, Letchworth was sold for £165,000 and 71, Cowslip Hill purchased for £230,000. The Claimant’s case is that the family might well have moved at some point but not as soon as they did; that they only did so at that time because of the Claimant’s sensitivity to noise and the unsuitability of their existing house. The Defendant contends that the Claimant’s accommodation needs at that age were not significantly different from those of a child of the same age who had not suffered injury. Mr & Mrs Smith essentially accepted in their evidence that the family would have moved at some stage though each expressed the view that it would not have happened at that particular time. Mr Smith accepted as a company director that he would hope to buy a new home as he and his family moved on in life and I conclude on the balance of probabilities that the family would have moved at or about that time in any event and accordingly no sum is allowed in respect of this first move. For reasons which I will develop more fully in relation to the claim for the cost of future accommodation, I allow the claim in respect of the increased accommodation cost to date calculated on the Roberts v Johnstone basis at £11207 – 19. I also allow the claim for the cost of a survey of 22 Willian Way in the sum of £1100, such figure having been agreed by the Defendant.

The claim relates to work done in order to make 22 Willian Way habitable for the family and in particular for the Claimant. Mrs Smith’s evidence was that they had redecorated the lounge and dining room (now a therapy room for the Claimant), the hallway and 3 bedrooms upstairs. She said essentially every weekend she and Mr Smith were working on the property and he would spend some hours there during the week. During weekdays when the Claimant was at school she and her mother would undertake DIY at the property but during the summer holidays were unable to do so as much because of the Claimant’s need for care and attention. 40 hours per week are claimed as a reasonable estimate of the number of hours involved, whereas the Defendant contends that a total of 240 hours is appropriate. As to the hourly amount claimed, the Defendant contends that the rate of £15 per hour is excessive having regard to the published average weekly gross pay in April 2006 of the building trades at £417.80 equating to approximately to £10 per hour. It is accepted that scientific precision is impossible but in my judgement a reasonable estimate of hours is 25 per week which over 16 weeks amounts to a total of 400 and the appropriate rate £10 per hour making the total figure £4000.

This aspect of the claim relates to expenses incurred in work done by Mr & Mrs Smith on moving in to 22 Willian Way. Mr Smith said that the previous owner had let the house go and it needed a lot of work which he and Mrs Smith did themselves. He said he spent every spare hour on it. His evidence was also that apart from the Claimant’s disabilities the family would never have moved to anywhere larger than Cowslip. Mrs Smith gave evidence about the incurring of expenditure of £4200 in moving the old bathroom in the house and replacing it with a new professionally done bathroom but it is unclear on the evidence, even on the basis that moving to a larger property was necessary having regard to the Claimant’s disabilities, why the moving of the bathroom was necessary. Accordingly that aspect of the claim fails. As to the remaining sum claimed under this head of £10,019, the Defendant contends that the same or similar expenditure would have been incurred in any event on the family moving. However, I accept Mr Smith’s evidence that the family would not have moved into a house as large as 22, Willian Way but for the Claimant’s disability and that expenditure was consequently higher than would otherwise have been the case and accordingly I think it fair to award £3,000 under this head. The claim in respect of a new boiler is not pursued and accordingly the total recoverable under this head is £3,000.

The figures are set out in detail in the updated Appendix 6 to the Claimant’s amended schedule of damages and total £3443.03. The figure is agreed and is recoverable.

The parties are agreed on the correct approach namely that interest on past losses should run until 10 July 2006 by which time interim payments of £360,000 had been made. The accommodation costs were incurred after that date and should therefore not be included in the calculation. Interest at 3% per annum (half the special account rate) from 30 April 2001 to 10 July 2006 is 15.6%.

There are subsidiary issues between the parties but the major issue relates to care of the Claimant as an adult and in particular whether it should be at home or in a residential setting. The principles of assessment are well known and were recently considered by the Court of Appeal in Sowden v Lodge & Crookdake v Drury [2005] 1 WLR 2129 where it was held that the court’s task was first to consider whether the treatment chosen and claimed for was reasonable and not whether objectively it was reasonable, and that such consideration involved assessment of the nature and extent of the Claimant’s needs. Pill LJ said at paragraph 10 :

“The basis on which damages are awarded at common law is not seriously in issue. Its history was traced by Stephenson LJ in Rialis v Mitchell (1984) 128 SJ 704 beginning with the statement of Lord Blackburn in Livingstone v Rawyards Coal Company (1880) 5 Appeal Cases 25 at page 39:

“Where any injury is to be compensated by damages, in settling a sum of money to be given for reparation or damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been had he not sustained the wrong for which he is now getting his compensation or reparation.”

The relevance of the Rialas case is that the issue was whether the tortfeasor was required to pay for a 12 year old boy to be cared for at home or whether he should live in an institution. A similar question arises in the present case. On the facts of that case, the cost of caring for him in an institution was lower. Stephenson LJ stated that “What has to be first considered by the court is not whether other treatment is reasonable but whether the treatment chosen and claimed for is reasonable.” O’Connor LJ stated:

“There may well be cases in which it would be right to conclude that it is unreasonable for a plaintiff to insist on being cared for at home, but I am quite satisfied this is not such a case, and once it is concluded that it is reasonable for the plaintiff to remain at home then I can find no other acceptable ground for saying that the Defendant should not pay reasonable cost of caring for him at home, but pay only a lesser sum which would be appropriate only if it was unreasonable for him to live at home and reasonable for him to be in an institution.”

At paragraph 38 he added:

“The test to be applied is in my judgement that expressed by O’Connor and Stephenson LJJs in Rialas v Mitchell. That is different from the test applied by the judge who repeatedly used the expression “best interests” though he equated that with the position which “most nearly restores her to the position in which she would but for the accident.” The judge’s good intentions with respect to the Claimant’s welfare are not of course in question and neither, in my view, is the perceptiveness with which he approached the medical evidence but there is a difference between what a Claimant can establish as reasonable in the circumstances and what a judge objectively concludes is in the best interests of the Claimant. In this context paternalism does not replace the right of the Claimant, or those with responsibility for the Claimant, making a reasonable choice.”

In the light of that statement of principle, the Claimant’s case is that the regime based on care at home which was clearly preferred by the Claimant’s parents and set out by Mrs Sargent was reasonable, whereas the Defendant’s case is that the benefits to the Claimant of her being cared for as an adult in a specialist autistic setting are so significant that it would be unreasonable for the court to approach the matter on the basis of continuing care at home for her lifetime. The Defendant identifies those benefits as increased social interaction with group activities though it is suggested on behalf of the Claimant that having regard to her autism such benefits are likely to be very limited and assume wrongly that she would have no socialisation at home where she would see her family more easily and naturally and go on outings. As to quality of care, the Defendant concedes that whether in her own home or in the residential setting the Claimant will need to be looked after by highly trained carers. It is submitted however that in the context of a residential setting which presents the opportunity for career advancement and the supportive network of a large number of employees there is a likelihood of attracting better quality carers than in an isolated residential setting. Allied to this, the Defendant contends that a residential setting specifically designed to cater for the needs of those with autism would be able to offer facilities and experiences simply impossible to replicate in a house which is also required to function as a family home. Ms. Slawson pointed to the stringent safety requirements applicable to residential care homes and also to the fact that additional facilities like swimming pools were likely to be available. The Defendant also questioned the sustainability and consistency of a home care package, Mrs Stockley a neuro psychologist regarding that as a key requirement better achieved in a group setting than at home. The Claimant contends that there is no reason to suppose that practical problems would be any worse for a home care regime than for a residential regime. The evidence of Mrs Sargent who has considerable experience in the care field and in case management was that her organisation managed 10 – 12 care regimes for autistics and when asked about quality of carers and training said that was why she had started case management regimes. She described it as “our bread and butter.” She said that all carers in a regime would be recruited, trained and reviewed and she discounted any danger of isolation. In addition, the Claimant identifies potential disadvantages in the residential care option, with the commercial profit motive likely to favour cost cutting with implications for the quality of care which a fully funded regime does not suffer. In a group setting, it was suggested the temptation would be to do what was convenient for the group as a whole or for residents whose needs differed from the Claimant’s whereas a home care regime would be tailored to the Claimant’s individual needs and could be adapted accordingly. In addition, it is pointed out that the Claimant is and will be physically attractive and at risk of abuse in a residential home. As to the question of cost, the Claimant contends that there is no firm evidence from the Defendant, but the Defendant points out the difficulties of detailed assessment when forecasting a number of years into the future. As to the question of the cost of residential care being lower than the cost of home care Ms Slawson accepted that her residential regime might well cost as much as a home care regime given the need to pay for carers for weekend visits home or for the family or for accommodation for such visits.

In the result I conclude that the proposal for continuing home care made by and behalf of the Claimant is reasonable and I reject the basis on which the Defendant seeks to say that it is not. The home care regime is clearly what the parents of the Claimant want and what they feel to be in the best interests of the Claimant and their approach and the approach adopted by Mrs Sargent for the provision of care on a continuing basis at home is in my judgement entirely reasonable. There are essentially 4 subsidiary issues in relation to the reasonable and proper cost of a home care regime. They are :

As to (1), it is conceded by the defendant that the Claimant will require a waking night carer for the immediate future, but suggested that the need is likely to cease by the time the Claimant reaches the age of 12 with thereafter a sleep-in carer being all that is required. I have earlier referred to the view of Dr Rosenbloom that after the age of 12 only a sleep in carer will be required. He also expressed the view that it was wholly exceptional for disabled children with a disturbed sleep pattern requiring waking night care not progressively to develop a normal settled sleep pattern as they grew older as a consequence of maturation. As against that, the evidence of Dr Gringras the consultant in neuropaediatric disability with additional training in sleep disorders and medicine expressed the view that even with medical intervention or behavioural therapy the degree of improvement was likely to be limited and would not normalise the Claimant’s sleep pattern sufficiently to eradicate the need for waking night care. Ms. Slawson, the Defendant’s nursing care expert considered the option of a sleep-in carer and expressed the view that that would not be appropriate for the foreseeable future. Her figures were based on continued waking night care. I conclude that the likelihood is that even with the appropriate intervention the Claimant is likely to continue to require waking night care for the future.

As to (2) Ms Slawson suggests a figure of £9-50p per hour where as Mrs Sargent suggests £10 per hour during the week and £12 per hour at weekends. It is to be noted that the figures put forward by Mrs Sargent are very close to those currently being paid by Anglia Case Management, case managers already engaged for the Claimant. It is also the case that the experience of Mrs Sargent in the case management field is considerably greater than that of Ms Slawson who based her figures on those paid by ICCM, although the hourly rate of £9.50 was below the mid point of their rates. She accepted that higher rates might have to be paid depending on the area concerned. In my judgment Mrs Sargent’s rates are appropriate and reasonable.

As to (3), the issue as to whether calculation should be based on 58 or 59 weeks, Ms Slawson’s view of 3 days for training and team meetings was based on the standard ICCM package but did not include on the job supernumary training, which would still have to be paid for. Mrs Sargent’s view that the appropriate figure was 7 days was based on her experience and on the specific specialist nature of the care required by the Claimant. Her view that the appropriate figure for paid sick leave was 6 days, again based on her experience, was that that number of days was necessary as an incentive for staff retention. Ms Slawson’s view that 3 days was appropriate was based upon the standard ICCM approach. In my judgment Mrs Sargent’s approach was reasonable and appropriate and for the reasons she gave I conclude that 59 weeks is the appropriate number of weeks per annum to form the basis of calculation of the figures.

Finally as to (4) and the appropriate hourly rates for case management, Ms Slawson’s hourly rate of £75 is again below the mid point of the ICCM figures and Mrs Sargent’s figure of £80 is lower than the figure of £88 charged by Anglia Case Management whose evidence indicates that other rates charged by other organisations in that area are even higher. In my judgment the figure of £80 as suggested by Mrs Sargent is reasonable and appropriate.

The parties have agreed a full life multiplier of 34 and based on the conclusions I have expressed and the calculation set out in paragraph 3(a) of the Claimant’s amended schedule of damages the figures are:

It is agreed that damages for future care and case management only should be paid by way of periodical payments with updating for inflation linked to the appropriate centile of the ASHE 6115 measure of carers’ earnings.

The parties’ respective figures based on the joint report of the expert Mary Clegg were £71,743 for the Claimant and £64,989 for the Defendant. Subject to the courts approval and on the basis of a full life multiplier of 34, the figure of £68,000 has been agreed. It is in my judgment reasonable and I approve it.

On the basis of the joint statement of Ms Moffat and Ms Price, the speech therapists, the appropriate basis for approaching this aspect of the claim is in my judgment

As the Defendant pointed out, the claim for equipment in the original schedule was duplicated and accordingly the amended schedule excludes any figure for equipment. The hourly rates figures were the subject of agreement by the experts and accordingly the calculation is as follows:

To age 19, - 40 sessions at £40 = £1600 x multiplier of 10.25 = £16,400

The occupational therapists Ms McFarnon and Ms Hines are agreed that occupational therapy will not be required after the age of 25. They also agree as a guide the appropriate number of sessions per annum namely 12 at £140 per session to age 16 and thereafter to age 25 a maintenance allowance of 4 sessions per annum at £140 per session. Accordingly the appropriate figures in my judgement are:

The total figure for occupational therapy is therefore £16,939.

The Claimant’s amended schedule takes into account the areas of agreement reached by the occupational therapists when they met. In consequence the claim has been reduced from £56,810 to £31772. The Defendant resists the claim on the basis that the Claimant will spend her adult life in a residential setting rather than at home, a basis which I have rejected., and contends for a figure on the rejected basis of £30000. Based on the joint report of the occupational therapists and on the basis that equipment will be required for life, in my judgment the figures set out in the Claimant’s amended schedule at Appendix 7 annexed hereto are reasonable and appropriate and accordingly I award a total of £31,772 under this head, consisting of capital costs of £10,522 and repeat costs of £21,250.

22 Willian Way was purchased for £725,000. Mr Wethers the joint accommodation expert suggested that the cost of suitable alternative accommodation in July 2005 would have been between £425,000 and £450,000 which had increased by February 2008 to between £500,000 and £531,000. Such houses would not have provided space for a hydrotherapy pool but his view was that a purchase price between £550,000 and £600,000 would have provided such space. He added the caveat that there may not have been an appropriate property on the market at that time, and it is pertinent that the 3 properties that he identified as possible alternative accommodation he subsequently acknowledged either because of noise or for other reasons were unsuitable. The evidence of Mr Smith was that he knew the market and they could not find any other suitable property at the time they were looking namely in Summer and Autumn 2007. It is acknowledged that the price paid for the property concerned was a reasonable price, and Mr Wethers accepted that the house as altered would be suitable for the Claimant’s needs. However, Mr and Mrs Smith are criticised by the Defendant on the basis that there is no evidence other than Mr Smith’s statement that nothing else suitable was available in the appropriate price range before 22 Willian Way was chosen. The Defendant questions whether it was reasonable to purchase the property at £725,000 when a property at a significantly lower price would have met the Claimant’s needs. The question assumes that such a property was available. In the light of the evidence that none of the three possible houses identified but not viewed by Mr Wethers was in the event suitable and having regard to Mr Smith’s evidence that he knows the area well and could not find any other suitable property in my judgment the decision to purchase the property concerned was reasonable and the proper figure for the Roberts v Johnstone calculation is the figure of £725,000. On that basis, taking the value of 71, Cowslip Hill at £300,000 the calculation becomes £425,000 x 2.5% =£10,625 which with a multiplier of 34 totals £361,250.

The cost of conversion of 22 Willian Way is claimed at £258,589 less the element of betterment at £30,000 making a net total of £228,589. Substantial elements of this part of the claim are accepted by the Defendant including the cost of major building works (£181,066), the cost of creating a soft play area (£40,316) and the cost of building a conservatory (£21,279). The last was conceded following the evidence of Mr and Mrs Smith that a covered conservatory is effectively the only option to connect the soft play area to the house. One aspect of the claim is in issue namely the cost of alterations to the bathroom on the basis that they were not necessary for the Claimant. The work included the provision of a linen cupboard and en suite shower room for the master bedroom. In my judgment there is force in the objection that is taken to this aspect of the claim. The evidence does not establish that these works were necessary alterations linked to the Claimant’s needs and accordingly this aspect of the claim fails. The total under this head therefore becomes £242,661 less betterment element estimated at £30,000 giving a total of £212,661..

The claim is based on the completion statement for the purchase and amounts to £36,031.96. Of that sum, £1,100 claimed as surveyors fees is duplicated having appeared in the schedule under past accommodation costs accordingly the appropriate figure in my judgment is £34,931.96. In addition the sum of £8,376 is claimed for furnishing and associated items. That figure is conceded by the Defendant following the evidence of Mr Wethers. The total under this head therefore becomes £43,307.96.

The figures claimed are based on the evidence of Mr Wethers and most of them are not in issue. Those accepted by the Defendant are as follows:

There is a limited issue in relation to the additional cost of heating which is claimed at £881.30 per annum. The Defendants suggests on the basis of Mr Wethers further evidence that some rooms at Willian Way are larger than required and that the figures should be £692.45 per annum. A similar point is made in relation to building maintenance costs which are claimed at £2,597.70 per annum and in respect of which the Defendant contends that Mr Wethers further figure of £1,628.55 per annum is appropriate. In my judgment the points made are valid and the appropriate figures are:

The total annual figure is thus £3,075.56 which with a multiplier of 34 makes a total under this head of £104,569.04. Accordingly the total cost of accommodation, calculated on the basis of Roberts v Johnstone (1989) 1 QB 878 is as follows:

£361250 + £212661 + £43308 + £104569 = £721788

The Claimant claimed £269,805.00 in respect of the cost of installing a hydrotherapy pool at 22 Willian Way. The figures are taken from the evidence of Mr Wethers and the breakdown is as follows:

Mrs Smith’s evidence was that the Claimant loved the water and went swimming with the school once a fortnight. She had not taken her swimming for a long time because of difficulties with the Claimants high sensitivity to noise particularly in the ladies changing room where the hand drying machine was almost constantly on. Of the conclusion in Mrs Clegg’s report that the Claimant should integrate into her local surroundings including the leisure centre as much as possible, Mrs Smith said that Mrs Clegg did not appreciate the difficulties of taking the Claimant to a local pool. Mr Smith confirmed that they had last taken the Claimant swimming a long time ago and the difficulty was the noise which the Claimant did not like. He would take her into the men’s changing room which was quieter than the ladies but that could obviously not continue. Mrs Clegg, the jointly instructed physiotherapy expert recommended swimming to improve the Claimant’s awareness, motivate her interest, improve her eye contact and communication and to enable her parents and carers to be drawn into exercise and management programmes. She was firmly of the view that the Claimant should integrate into her local surroundings as much as possible in the light of her belief that in the long term that could only be beneficial. She envisaged the Claimant attending the local leisure centre with her parents and carers. The case for the Claimant is that her extreme sensitivity to noise makes a public pool unacceptable for her, something that is confirmed by the parents decision not to take her anymore. It is suggested that Mrs Clegg’s wish for integration ignores the Claimants autism and disinterest in socialising. The Defendant points out that Mrs Clegg the joint expert does not favour a hydrotherapy pool and that the Claimant continues to go swimming every two weeks with the school, something which Mrs Smith confirmed she enjoyed. The Defendant further submits that the problems experienced in taking the Claimant swimming would be surmountable and manageable with the assistance of carers particularly if a quieter time of day were chosen. There is no doubt that Mr and Mrs Smith are devoted to the Claimant’s care and her best interests, but in the light of all the evidence, I do not consider that a hydrotherapy pool is reasonably necessary in consequence of the Claimant’s disability or in her best interests. Although there have been difficulties, it is the case that the Claimant continues to go swimming with the school, and with the assistance of carers who will be available as part of the home care regime, the problems that have been encountered should be surmountable particularly if quieter times are chosen for visits to the pool. Accordingly this aspect of the claim fails.

The Claimant claims £169,248 as the proper measure of loss whereas the Defendant contends that a substantially lower figure (£15,556) is appropriate. The occupational therapists, Ms McFarnon and Ms Hines reached agreement on a number of matters. The relevant periods with the lifetime multiplier of 34 are 11 years to 19 years and 19 years onwards. To age 19, the experts agree that a 7 seater vehicle is required for the family at a capital cost of £25,000. The Claimant concedes that the cost of a car the family would have had in any event must be deducted and suggests £5000 as the appropriate figure with the annual replacement cost calculated on the basis that the car would have been changed after about 6.5 years. It is agreed that the Claimant will require a car seat priced at £405 and a seat harness at a capital cost of £125 with annual repeat costs of £42. As to the cost of a car in any event, the Claimant puts forward a figure of £5,000 whereas the Defendant suggests that costs will be about 10% greater than would have been incurred in any event. The appropriate figure has not been costed either by Ms McFarnon or Ms Hines but having regard to the experts’ view that ordinarily the amount that people spend on a vehicle increases as they progress throughout adulthood then reduces in later life the figure of £10,000 is in my judgment appropriate. As to additional car running costs, first to the age of 19 years, Ms McFarnon and Ms Hines agree that additional running costs will be incurred if the court accepts that the family requires a vehicle that is larger and more expensive than they would have purchased in any event. It is clear in my judgment on the evidence that that is the position. Ms McFarnon estimates the annual additional running costs at 21.89 pence per mile and takes an additional mileage of 10,000. amounting to a cost of £2,189. Finally the cost of insurance for carers is estimated by Ms McFarnon at approximately £800 per annum.

From age 19, the occupational therapists agree that additional costs will be incurred because the Claimant will require a new car to ensure reliability as opposed to an old second hand car that would have been sufficient in the normal course of events, and she will require a larger 4 door family style car to accommodate 2 carers and her wheelchair. As a guide price they agree £13,000 from which the figures of £10,000 for the cost of a vehicle in any event falls to be deducted leaving an additional cost of £3,000 or on the basis of replacement after 6.5 years a repeat cost of £461 per annum. In addition there is the cost of insurance for carers at £800 per annum and additional running costs estimated by Ms McFarnon at 12.83 pence per mile x 10,000 miles or £1,283 per annum.

This head of claim is based on the agreement between the educational psychologist, Mr Reid and Ms Stockley that had the Claimant not suffered injury, she would have functioned within the good average to above average level in intellectual ability, with the likelihood that she would have had the potential to do well at formal examinations and to have gone onto a degree level course leading to a professional qualification. Ms Stockley considered it probable that she would have chosen a profession such as teaching as her mother did and that she would have been successful. She was also of the view that the Claimant would have remained in full time education until the age of 21 or beyond. Against the background of that evidence, the claim is put on the basis that the Claimant like her mother would have been a teacher and successfully progressed from level M1 with a gross salary of £21,102 through to level M6 with a gross salary of £30,393 by age 35 when she would have become “excellent teacher” with a salary of £37,809. As to salary levels, the Defendants rely on published statistics of average earnings for 2006 showing a gross annual salary of £30,388 for a full time female primary school teacher on adult rates if her pay was not affected by absence, equating to net earnings of approximately £22,300. That in my judgment is the appropriate method of calculating annual loss before taking into account any question of discount. Equally I agree with the Defendant in taking a starting point of work for the Claimant at aged 25 giving a basic multiplier of 16.36. The Defendant seeks to reduce the multiplier, first by 50% to reflect the costs associated with work, the contingencies of life and the likelihood of the Claimant being absent from the work force for significant periods owing to maternity, career breaks and so on. It is further submitted on behalf of the Defendant that there should be further substantial discount having regard to the element of overlap between the 2 heads of damage as identified by Griffiths LJ in Croke v Wiseman (1982) 1 WLR 71 at 83b-83c. The Claimant accepts some discount to allow for the costs of working which it is submitted as a teacher living in the local community would not be significant and for career breaks for maternity leave and so on. In my judgment the appropriate discount taking into account the costs of working, career breaks and an element of overlap is 40% making the total figure under this head as follows:

The claim in respect of Mrs Smith’s teacher’s pension is not pursued but loss of the Claimant’s teacher’s pension it is submitted is properly recoverable as a loss resulting directly from her inability to pursue a career as a result of the Defendant’s negligence. The teacher’s pension scheme provides for a normal pension age for new entrants of 65 with an accrual rate of 1/60th for each year of service. On the basis of the earlier salary figures the calculation is

1/60 x £30388 x 40 = £20258. Taking the net figure at £15000 with a multiplier (65 to life) of 3.58 the total becomes £53700. . In my judgment the same deduction for contingencies is appropriate namely 40% making the total under this head of £32220.

The occupational therapists confirmed the evidence of Mr and Mrs Smith that family holidays with the Claimant had been very difficult and at times stressful as a direct consequence of her disability. The Defendant does not seek to say that the Claimant should not holiday with her family and it is clearly appropriate that she should. The Defendant does question whether specialist activity holidays are appropriate having regard to the view of the occupational therapists that the Claimant does not require specialist facilities or specialist accommodation, and the evidence that she would not respond well to such holidays. The claim is put forward on the basis that having regard to the view of the care experts it will be necessary to take 3 carers on holiday rather than 2 as suggested in the joint statement of the occupational therapists. It is to be noted that the amount claimed in the original schedule was £155,000 whereas the amended schedule claims a figure more than £200,000 higher. In my judgment the Defendant’s approach to the calculation, allowing 2 carers for one holiday a year at an annual cost of £3,000 is reasonable and appropriate giving, with the lifetime multiplier of 34, a figure of £102,000.

The figures on which the claim is based are contained in the evidence of Ms McFarnon who estimates the cost of employing domestic assistance at £590 annually, the cost of DIY/Maintenance at £1,110 and the cost of gardening assistance again at £590 annually. The appropriate bracket is from age 19 to 65, after which it is unlikely that the Claimant even uninjured would have continued to perform such tasks. The annual total is thus £2,290 which with a multiplier in my judgment appropriately discounted to 20 , gives a total under this head of £45,800.

The amounts claimed are again based on the evidence of Ms McFarnon and the joint statement of the occupational therapists. Amounts claimed in the amended schedule are as follows:

That makes an annual total of £981 which with a multiplier of 34 totals £33,354. As to the additional cost of nappies to aged 12 only, taking a multiplier of 4.54 and an annual figure of £370 the total is £1,679. The total under this head becomes £35,033 which in my judgment on the evidence is reasonable and appropriate.

Mr and Mrs Smith want the Claimant to attend Radlett Lodge School but the issue of funding is unlikely to be resolved before the outcome of 2 tribunal appeals, the cost of which, discounted for accelerated receipt, amounts to £32,041. In the light of that uncertainty and having regard to the very considerable cost of schooling if funding is not available, the Claimant submits that the court should award the sum of £32,041 now, that representing the cost of the 2 necessary appeals, a sum which is conceded by the Defendant and adjourn the remainder of the claim under this head. Because there are potentially large sums involved in my judgment it is appropriate that I give liberty to the Claimant to apply for a future trial of the issue of damages for school care and therapy fees to the age of 19 in the event of an appropriate education authority failing to meet the expenses of the appropriate school. The sum of £32,041 is recoverable under this head in any event but I make clear that including this figure in the overall amount for which judgment is to be given cannot operate in any way as a bar to the Claimant applying for a future trial of the issue of damages for school care and therapy fees to the age of 19. Such application must however be made within 12 months.

The figures are based on the report of Mr Gomm an expert in the field of special needs technology, and are not in dispute. The capital costs of various items under the heading Communication, Entertainment Equipment, Multi Sensory Equipment and Computers amount to £13,632. The repeat costs are £3,501. The detailed breakdown is set out in Appendix 12 to the Claimant’s amended schedule of damages. Issue is taken however with the whole life multiplier of 34 which the Claimant seeks to apply to the repeat costs. The Defendant argues with some force that it is likely that the Claimant’s needs will alter with age with the result that particular items may of no longer be of use to her. The point in my judgment is well made and accordingly I would discount the final figure by 25%. The total set out in Appendix 12 is £132,666 which with a deduction of 25% becomes £99500 which in my judgment is the appropriate figure.

The total claimed as set out in Appendix 13 of the amended schedule is £267,781. The figure is agreed by the Defendant. The amount is reasonable and appropriate.

The claim consists of £12,030 for the cost of an annual paediatric neurological review of the Claimant over the remainder of her life, and £4,050 in respect of family counselling fees for Mr & Mrs Smith and Phoebe, (the Claimant’s sister). Objection is taken to the second aspect of the claim that neither Mr & Mrs Smith nor Phoebe are parties to this action. The objection is valid and the sums are not recoverable in this action. As to the other aspect of the claim the evidence was that there has been difficulty in finding a neurologist / paediatrician. Mr Smith said that they had asked their general practitioner on a number of occasions to be referred to a paediatrician at Addenbrookes or Great Ormond Street Hospital. Those attempts were unsuccessful and he concluded that they had no alternative but to find a paediatrician and instruct him privately. It is submitted on behalf of the Defendant that there is no reason why in due course the Claimant should not be able to obtain full and proper review by a paediatrician, perhaps after a short period of private care in the interim. I accept that Mr & Mrs Smith have had difficulties in finding a paediatrician in the past, but I do not see that difficulty continuing long term. Accordingly, I think it appropriate to take a multiplier of 6 on the annual amount of £350 making a total of £2,100.

There will accordingly be judgment for the Claimant. I have identified individual amounts recoverable and I will determine the final form of order when the parties have had the opportunity of considering this judgment and making representations as to the form and wording of that order.