FP v Taunton & Somerset NHS Trust

This action consists of what is called a wrongful birth claim, and is brought by FP relating to the birth of her son RP. RP was born on 20 September 2003, and is now aged five. His mother is now aged twenty five. What is before the Court is an application by the Claimant for an interim payment under CPR Part 25, and for a stay of the action while RP’s prognosis remains uncertain. Mr Robin Oppenheim QC for the Claimant has applied for the names of the Claimant and her son to be anonymous to protect the interest of the child, which I have done under CPR Part 39.2(4) in view of his great vulnerability.

It is the Claimant’s case that her ante-natal care was mismanaged and that her antenatal scanning was inadequate in that it failed to reveal, as it ought to have done, that RP was suffering from a number of congenital abnormalities. She has asserted that, had she been appropriately advised, she would have elected to terminate the pregnancy. Liability was admitted by the Defendant, the Taunton and Somerset NHS Trust, in June 2006 and judgment for the Claimant for damages to be assessed was entered by consent in September 2006. The scope of recovery and the principles to be applied to that exercise however are not agreed and remain to be determined at trial in due course. They raise issues of some potential difficulty, as indeed does this application.

I can deal first with the stay, since in the event this has turned out not to be contentious. RP has a number of unusual and complex medical conditions, which make a realistic prognosis impossible at the present time. A stay was originally sought until he was aged 13, which is about seven years away, on the basis that a further application for an interim payment would be made after two years, and periodically thereafter. The Defendant proposed that the action be stayed for a period of two years only. Although at that point, it may well not be possible for the experts to provide any further input in relation to RP’s life expectation and the extent to which he may become independent of ventilation, equally, events may have moved on by then. If not, the Court could impose a further stay. In the course of oral submissions, it was made clear on the Claimant’s behalf that this proposal would not be opposed, and I consider that a stay for two years is the sensible course.

Turning to the major subject of the application, interim payments have been received to date in the sum of £500,000. These have been made by the Defendant on a voluntary basis over the course of the past two years. The Claimant now seeks a further interim payment of £1,500,000. Broadly, this sum is intended to cover the cost of providing alternative accommodation for the Claimant and her family, particularly of course RP, and the cost of providing care at the level which his disability requires. The cost claimed in respect of the latter is such that even on the basis of an interim payment at the level sought, further interim payment applications would have to be made in two years time.

Before coming to the facts, it is important to note that the Claimant acknowledged in its skeleton argument of 9 July 2009 that the judge at trial (a trial which may be a considerable number of years off) may well wish to consider making a periodical payment order (PPO) given that the life expectancy of RP may not be certain even by the time of trial. This was subject to a further point made during the course of argument which I shall explain later.

The Defendant’s position is that this is a claim for pure economic loss, and as such is likely to fall outside the scope of the Damages Act 1996 which is confined to claims in respect of personal injury. On this basis, the Court would be unable to impose upon the parties an award of damages which includes a PPO. However, the Defendant says that it may be possible for the parties, by agreement, to compromise the claim on the basis of a PPO provided that the fiscal advantages attaching to a PPO remain available notwithstanding that the order falls outside the statutory scheme. For this reason, it accepts that on this application the court should proceed on the basis that a PPO remains available to the parties and the trial judge as an option for the ultimate disposal of this claim.

The Defendant makes a further reservation which I should mention. In Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530, the Court of Appeal accepted in the context of a mother’s wrongful birth claim that she was entitled to recover the extra expenses associated with bringing up a child with a significant disability. The Defendant submits that in the light of observations made by members of the House of Lords in Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, Parkinson may have been wrongly decided. However as Ms Christina Lambert QC who has appeared for the Defendant rightly concedes, the decision is plainly binding on me, and I need not get into that debate.

Given the parties’ positions, it is common ground (subject to the Claimant’s further point) that the interim payment application must be determined in accordance with the guidance given by the Court of Appeal in Cobham Hire Services Ltd v Eeles [2009] EWCA Civ 204. It is to be noted that the claimant in that case was the child, not the mother as in the present case. One difference which results is that the Court of Protection has no role in the present case, since the Claimant is of full age and capacity.

The starting point is CPR 25.7(4) by which, “The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment”. It was held in Eeles that the correct approach is to assess the likely value of the final judgment, that is, the amount of the capital sum of the award (otherwise described as the retained sum) but not including heads of future loss which the trial judge might wish to deal with by PPO. Once the likely amount of the final judgment is assessed leaving out the notional capitalised value of the PPO, proceeding on a conservative basis the court may award as an interim payment a reasonable proportion of that sum. Any other approach would mean that the final discretion of the trial judge to make a PPO might be fettered. That judge will be better informed as to the overall position than the judge on an interim payment application, and Eeles makes clear that the trial judge’s options must not be inhibited (see for example the judgment of the Court at [32]).

A potential practical problem which the Court faced in this particular application relates to new accommodation, in respect of which (as I shall explain shortly) the evidence shows a pressing need. Under the principle in Roberts v Johnstone [1989] QB 878, the Claimant cannot recover as damages the capital cost of acquiring special accommodation because she retains the capital in question in the form of the accommodation. She can recover 2.5% of the capital cost of the purchase as the cost of the capital. But the multiplier for the purposes of this application may on the present evidence (again as I shall explain) be quite low, and there may be limited leeway to make up the shortfall through general damages for pain, suffering and loss of amenity, or damages for loss of earnings, because in a wrongful birth claim like this, the claimant is the mother, and not the child.

By far the greatest claim in monetary terms in this case will relate to the cost of caring for RP, and that is likely to be financed so far as pre-trial loss is concerned by way of interim payments. These will of course fall to be deducted from the final capital award. So far as post-trial loss is concerned, the cost of care will, on the hypothesis upon which this application is made, be covered within the scope of the PPO, and so will not form part of the final award. This of course makes a huge difference on the numbers.

Following Eeles at [43], in deciding the application my “first task is to assess the likely amount of the final judgment, leaving out of account the heads of future loss which the trial judge might wish to deal with by PPO. Strictly speaking, the assessment should comprise only special damages to date and damages for pain, suffering and loss of amenity, with interest on both. However, we consider that the practice of awarding accommodation costs (including future running costs) as a lump sum is sufficiently well established that it will usually be appropriate to include accommodation costs in the expected capital award. The assessment should be carried out on a conservative basis.”

The parties narrowed the scope of their disagreements substantially in oral argument. A table of figures has been produced by Mr Oppenheim QC the numbers in which are largely agreed. The table adapted so far as relevant to this judgment is as follows:

As the table indicates, the major item in dispute between the parties relates to the life expectancy and proper multiplier to adopt at this stage. The evidence to which I have been referred in this regard is primarily that of Dr. Parviz Habibi, a Consultant in Paediatric Respiratory Medicine, who is one of the Claimant’s experts. A key question that he addresses is whether RP will ever be weaned completely from assisted ventilation. In his report of 11 September 2008, Dr. Habibi seeks to give percentage forecasts in that regard. But he makes it clear that given RP’s young age, a definitive view is not possible. Subject to that important caveat, he assesses the chances of full independence from ventilated support during the day but dependence during the night as being in the range of 70% by the end of his childhood years (i.e. by age 13 years). The chances of him never being fully independent of ventilator support either day or night are approximately 30%. Dr. Habibi would assess the chances of RP eventually being fully weaned from ventilated support (i.e. day and night) as being in the range of 50%, but probably not before the end of his teenage years.

Against that background, he comes to express his opinion as to RP’s life expectancy. On the assumption that he will be dependent on long term ventilation, Dr. Habibi expresses the view that, accepting that all his other problems may have some, albeit minimal, cumulative adverse effect on survival, then it would be safe to assume a minimum survival to age 20 years and probably even to age 30 years. Dr. Habibi’s views have been updated in a letter of 20 June 2009, but broadly remain the same.

At the hearing, the Defendant handed in a report from Professor Nicholas Rutter, Emeritus Professor of Paediatric Medicine at the University of Nottingham. His report dated 9 March 2009 was accompanied by a letter of 13 July 2009. Again, I was not taken to this evidence in any detail, but note Professor Rutter’s view that on the balance of probabilities he would expect RP to have a reduced life expectancy with survival to adolescence or early adult life but not beyond this. He adds that a repeat assessment of RP as a young teenager would greatly improve the accuracy of this prognosis. His letter of 13 July 2009 suggests that a life expectancy of about 20 years is more likely rather than the 30 years suggested by Dr. Habibi. He adds that if RP is successfully weaned from mechanical ventilation during later childhood, then his life expectancy will be considerably greater.

I should note that the Claimant also took me to the evidence of another of its expert witnesses, Dr. Richard Miles, a Consultant Paediatrician. In his report of September 2008, he endorses the view that any life expectancy estimation for RP is speculative at this stage, but assuming adequate lung function, it is his opinion that RP is likely to live to about 60 years of age. Otherwise I was not referred to the considerable body of medical evidence before the Court on the life expectancy issue. What emerges clearly however is that the prognosis at this stage is speculative, and that the future will depend upon the extent at which RP remains dependent on mechanical ventilation.

On the basis of this evidence, Mr Oppenheim QC submits that currently, there are three broad scenarios for RP’s future: A (ventilator dependent day and night) life expectancy on Dr Habibi’s evidence estimated probably to age 30; B (ventilator dependent night only) life expectancy on Dr Habibi’s evidence estimated probably to age 50; and C (ventilator independent) life expectancy on Dr Miles’ evidence estimated to age 60. He submits that there is a 70% chance of RP being in either scenario B or C by age 13 and balanced chance between those two by end of teenage years. It follows, he submits, that there is a high probability that by age 13 or 2016 the court will no longer be confronted with scenario A.

It is greatly to be hoped that this more optimistic prediction proves to be correct, but for the purposes of the interim payment calculation, and the conservative approach to be taken in the light of Eeles, I am satisfied that the realistic choices are between the numbers in the table set out above. As in the case of the original table prepared by Mr Oppenheim, they do not include scenario’s B and C but show scenario A to age 20 or 30 with a choice of multiplier. In my view, a cautious view of the evidence justifies taking the age of 20 rather than 30 in respect of life expectancy. In the case of age 20, the choice is between the Claimant’s multiplier of 11.99 and the Defendant’s multiplier of 10.5. Assuming that a life expectation to age 20 is adopted, the correct actuarial multiplier for a “term certain” is 11.9. However it is the Defendant’s case that, in order to take into account the possibility of sudden death, there should be some further discount from the multiplier derived from the actuarial tables for term certain to reflect this contingency, hence the proposed multiplier of 10.5. I reject that argument because a life expectancy to age 20 is already cautious, and would in my view be unduly so if any further discount were to be applied to the multiplier.

The next question is as to the multiplicands, where a considerable degree of agreement exists between the parties. As the table shows, on the hypothesis of a life expectancy of 20 and a multiplier of 11.99, the Claimant estimates the retained capital sum as £1,479,636. This figure needs to be seen in the light of the Defendant’s observations on the table. The Defendant submits that the claim for accommodation to age 20 years is only £425,000. It also takes the view that a claim for loss of earnings constitutes double recovery when allied to a claim for future commercial care. It is further submitted that there are unlikely to be any significant education costs incurred in the future. In broad terms, the Defendant submits that on the basis of a multiplier of 11.99, which I have held to be the appropriate one for these purposes, the value of the retained capital sum is £1.3 million. I would not necessarily accept the Defendant’s reservations, particularly as regards accommodation. But what can be said is that on the parties’ respective cases (allowing for the fact that their analyses are for the purposes of the interim payment application only) £1.3 million is the lowest figure before the Court as an estimate of the amount of the final judgment, leaving aside the cost of care to be dealt with by way of a PPO.

It is convenient to consider next the justification for the Claimant’s request for an interim payment in the sum of £1.5 million, insofar as this has been spelled out on the application. It is clear that there are two main elements, of which the first relates to the costs of care. A considerable amount of evidence in this regard was placed before the Court. However I need not analyse this evidence because for the purposes of this application both parties are content to proceed on the basis that the cost of care for the next two years should be calculated on the basis of the annual costs of the current agency regime which is projected at about £250, 000 per annum.

The second main element relates to the cost of alternative accommodation. Again, there is a body of evidence before the Court including witness statements from Ms Margaret Young, the Claimant’s solicitor, Ms Jo Fisher, the case manager, the family GP, and Dr Kelly Camilleri, who is a clinical psychologist. This is to the effect that the Claimant and her family have an immediate and urgent need to move and to set up a stable care regime in suitable accommodation. Their current accommodation is far too cramped, and the strain on the family is immense. It would appear that the family is at breaking-point. The Defendant is not in a position to challenge this evidence on the interim payment application, and accepts that I should proceed on the basis that this is correct. Applying Eeles at [45], I am satisfied that there is a real need for accommodation now as opposed to after trial.

But the same passage in Eeles makes it clear that I must also be satisfied that the amount of money requested is reasonable. I have not been taken extensively to the evidence in this respect. The Claimant’s case is that the cost of purchase of a suitable property would be in the order of £450,000, and this is based on the cost of a property called Lime Trees, which is a bungalow on the outskirts of Taunton. An architect has estimated that the cost of works to adapt the property to make it suitable for RP’s needs would be in the order of £286,000, and the relocation costs in the order of £36,632.13.

Again, the Defendant is not in a position to challenge these figures, though Ms. Lambert has taken me to a passage in a letter of 1 July 2009 from the Claimant’s architect to her solicitor. This is apparently responding to a request for an estimate of the costs of providing a hot tub, a dog run and a Koi pool (for fish) at the property. It appears from the letter that providing these items would cost over £14,000. Whilst there is no suggestion that these items are included in the estimate of £286,000, Ms. Lambert submits, with force in my view, that this demonstrates the fact that it is not appropriate for the Court to accept unconditionally the figures that are put before it by the Claimant at this stage.

Leaving that point aside, the fact is that the amount of the interim payment claimed, namely £1.5 million, exceeds the likely amount of the final judgment as I have assessed it. Mr. Oppenheim has suggested a number of means by which to bridge the gap. In the first place, he suggests that the shortfall should be made up by assuming that the court at trial would postpone the operation of the PPO for a year or so. In my view, Ms. Lambert was correct to submit that on the facts of this case that is not an available option. By the time of trial, the Claimant’s care would have been provided for some time on a commercial basis. It is not plausible to suppose that such care could be suspended for a substantial period following the trial.

In further written submissions dated 16 July 2009, Mr. Oppenheim suggested that given the urgent need for accommodation now, the Court should assume that a PPO award would not be made at trial at all. On this basis, the Court can be satisfied that the likely total value of a lump sum award will be significantly greater than the value of the interim payment sought. Again, I cannot accept this approach. A decision which has the effect of ruling out at this stage the making of a PPO at trial is the very outcome which the Court of Appeal in Eeles made it clear should be avoided. Further, with some adjustment of the numbers, I think that accommodation can be provided in this case without such an outcome.

It follows in my view that the Court should not make an interim payment order in the sum of £1.5 million. Such a payment would be in excess of the likely amount of the final judgment, and hence contrary to CPR 25.7(4). So I come consider Mr. Oppenheim’s “fall back” figure, by which he seeks an interim payment in the sum of £1.2 million. This is less, but only slightly less, than the Claimant’s present estimate of the total costs of a new home, the adaptation of that home, relocation costs, together with the costs of care for the next two years. An order in this sum would have the great benefit of enabling the Claimant and her family to move now into suitable accommodation, whilst also allowing for RP’s care on a commercial basis.

On behalf of the Defendant, Ms. Lambert, understandably, has not been prepared to accept that even this is an order which the Court should make. However I am satisfied that it is the appropriate one to make in this case. So far as the mathematics is concerned, I accept Mr. Oppenheim’s submission that for these purposes an additional sum of £500,000 is to be added to the estimated sum of £1.3 million which I have held is the appropriate estimate of the final judgment. This is on the basis that the cost of care for the next two years will be £500,000, and by the time of a notional trial in two years time, this would fall to be considered as past loss to give a judgment sum of £1.8 million. From that sum of £1.8 million, would have to be deducted £500,000 which has already been paid to the Claimant by way of voluntary interim payments. That would leave an estimated final award of £1.3 million, which is sufficient to cover an interim payment now of £1.2 million. It is true that such a payment is a high proportion of the likely amount of the final judgment. However Eeles makes it clear at [43] that a reasonable proportion may well be a high proportion, provided that the assessment has been conservative. The making of an interim payment of this size also accords with the approach taken by Stanley Burnton J in Braithwaite v Homerton University Hospital NHS Foundation Trust [2008] EWHC 353 (QB) (which was approved by the Court of Appeal in Eeles at [11] – [12]). In that case also, the approach of the court responded to claimant’s urgent need on the facts to accommodation, a need which on the evidence I have been shown I am satisfied exists in this case also.

There is one aspect of the matter that has remained of concern to me. Mr. Oppenheim has pointed to paragraph [44] of Eeles to submit that the court is not concerned with what the Claimant will actually do with the money. However, it is to be noted that Eeles was not a wrongful birth case, the claimant being the child, not the mother. As the Court of Appeal pointed out, the expenditure of the interim payment would be controlled by the Court of Protection. That safeguard does not exist in the present case. Whilst it is true that the Claimant is of full age and capacity, it does not appear to me to follow that in a case such as the present she may spend the money as she likes. That is because her claim is entirely posited on the fact that the claimed expenses are necessary for the care of RP.

I discussed this concern at some length with counsel at the hearing. I was told by Mr Oppenheim that investigations had shown that the setting up of a trust was not practicable in this case, though I was somewhat surprised that this should be so. In the course of argument, Ms. Lambert suggested that the matter might be dealt with by a two stage process. On this approach, the Court would indicate now that it was prepared to make an order that would cover the costs of accommodation up to a given sum, but an interim payment would not be ordered until the Defendant had the opportunity to provide observations on specific costings. I had considerable sympathy with this submission, but in the end have been persuaded by Mr. Oppenheim that costings have been available for comment by the Defendant for some time, and that the sole result of a bifurcated order of this kind now would be delay, which would be very undesirable. In any case, he says, there is no precedent for the making of an order in this form (though I do not see that this should be a bar if the result is a just one).

However I was not convinced by his further submission that if at trial the interim payment is shown to have been misapplied, the sums concerned can simply be deducted from the final award. The concern that I have is to provide reasonable assurance that the money awarded by way of interim payment is expended for the purposes for which it is sought. This is desirable to protect RP, as well as the Claimant and her family, and also to protect the public, since the cost of the award has to come out of public funds. Following the hearing, and seeking to respond to this concern, there has been a helpful suggestion made on behalf of the Claimant (upon which the Defendant has had the chance to comment) which proposes undertakings by the Claimant’s solicitor. In summary, she will hold the money in her firm’s client account, and take reasonable steps before making a payment out to ensure that it is made only in respect of loss identified in the schedule of loss (by requiring sight of receipts or invoices etc). There are various further provisions intended to protect her firm, and both of the parties. I believe that a similar arrangement is presently operated on an informal basis, and an undertaking would provide some additional formality, and on the facts of this case would in my view be of value.

In the event, an interim payment is ordered in the sum of £1.2 million, and I will hear the parties as to consequent orders.