Cook v Cook & Anor

On 21 June 2011 I heard an application developed by Mr Westcott QC on the Claimant’s behalf for an order to be made within the court’s case management powers under CPR 3.1 that a quantum assessment scheduled for 12 December this year should be confined to the determination of damages, including general damages and past losses, for the period up to her 16^th birthday, which falls on 13 January 2017. The application was opposed by Mr Neil Garnham QC on the Defendants’ behalf.

It is not disputed that the court has the jurisdiction to make an order in the form sought. It is provided by CPR 3.1(2) as follows:

“Except where these Rules provide otherwise, the court may

…

(e)

direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;

(f)

stay the whole or part of any proceedings or judgment either generally or until a specified date or event;

…

(i)

direct a separate trial of any issue;

…

(m)

take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”

Liability is not in dispute. The background was summarised in the witness statement of Susan Hall, the Claimant’s solicitor, in support of the application. The litigation began as what she describes as “a relatively straightforward road traffic matter”. At that stage the Claimant’s father, Mr David Cook, was the only Defendant. He was driving a vehicle on 13 January 2001 with the Claimant’s mother Mrs Karen Cook as a passenger. At the time she was about 28 weeks pregnant and, as a result of the accident, she suffered a placental abruption. Jamie-Rae was born about 12 weeks prematurely as a result and suffered intra-ventricular haemorrhages and hydrocephalus. In May of that year, a ventriculo-peritoneal shunt was fitted and thereafter matters progressed as well as could be expected.

Unhappily, however, in March 2004 the shunt was blocked. This caused a build-up of cerebro-spinal fluid, which led her mother to take to the surgery of the general practitioner, Dr Elizabeth Walker, who is now the Second Defendant. There was a misdiagnosis of gastro-enteritis and Jamie-Rae was sent home. The next day, 14 March 2004, she was admitted to the John Radcliffe Hospital, in an emergency, where she was operated upon to remove the shunt. As a result of extreme raised intra-cranial pressure, Jamie-Rae suffered bilateral occipital and temporal lobe damage and total blindness. The claim has become considerably more complicated as a result

The basis of the present application is encapsulated in Ms Hall’s observation: “ … I cannot see how the court can do justice to this young girl where the evidence as to her long term prognosis is so unclear”. She submits that it is impossible at this stage for the court to come to a meaningful conclusion as to the full extent of the Claimant’s likely long term losses. She submits that there will be a significant difference in the amount of care and support she will need in adult life, depending on whether her problems go beyond physical impairment and involve cognitive and psychological deficits also.

The basis of the application is that the court, and indeed the parties, will be in a far better position to assess the long term outcome, and correspondingly the Claimant’s needs in adult life, following a reassessment at or before her 16^th birthday.

My attention was drawn by Mr Westcott to certain passages in the reports of the Claimant’s experts, Dr Renée McCarter and Dr Richard Miles. The former is a consultant neuropsychologist and the latter a consultant paediatrician.

In her report of 4 February 2011 Dr McCarter’s recommendations included the following:

“Review of her development and needs regularly and, for the purpose of prognosis and determining care needs, at least a further review at age 16.

I think it premature at present to attempt a final prognosis, as there are many uncertainties and risk factors in this case that make prediction of outcome extremely difficult.”

Dr Miles made the following observations:

“9.

As a paediatrician with a long term interest and experience in children with neurological disabilities I agree with Dr McCarter’s conclusions that Jamie-Rae is at risk of falling further behind academically. I agree that as she grows older Jamie-Rae may also suffer problems of a psychological nature as she develops more insight and awareness of the extent of her disabilities.

10.

From a purely medical perspective, there will be no change over the coming years. Provided there are no more shunt complications, it is unlikely there will be any change in Jamie-Rae’s medical condition. She will remain mobile. She will remain blind. She will remain with an increased risk of epilepsy because of the brain damage and shunt. However, Dr McCarter is of the opinion it is too early to predict from a psychology perspective how well she is going to manage at school, too early to predict her psycho-social development and therefore how dependent she will be as an adult.

11.

Dr McCarter is of the view that careful monitoring and a review later in her adolescence will be relevant in determining her ultimate level of development, her capacity to work, her capacity to form relationships and even her capacity to live independently without support. Despite Jamie-Rae’s surprisingly good progress to date, given the damage on the imaging and given Dr McCarter’s findings, I am also of the opinion that there is a significant doubt over her long term progress.

12.

It would seem reasonable to me to obtain further expert evidence from an educational psychologist with expertise in dealing with the visually impaired. This would ensure that Jamie-Rae’s educational requirements are met over the next few years. It would then seem reasonable to me that Jamie-Rae should be reassessed both neurologically and psychologically at around the age of 16 when it is more likely that an accurate prognosis can be given.”

There was also available evidence from experts introduced on behalf of the Defendants, including from Dr Russell Croft, a consultant community paediatrician, from Veronica Downing, an occupational therapist, and from Judith Bell, who has experience of teaching children who are blind. Mr Westcott makes the point in relation to these witnesses that none of them really challenges the recommendation of Dr McCarter that the Claimant’s position should be reviewed at the age of 16, or offers a sufficiently clear picture of how she is likely to cope with adult life to enable the court, in December 2011, to make a cogent and realistic assessment of her needs.

Mr Westcott makes the point that there is nothing unusual about the court making an order for a split trial, although most frequently this occurs when liability is separated out from quantum. In those circumstances, it will usually prove possible to make an assessment of all the quantum issues at the same time. Here, although it would be possible to postpone the whole resolution of quantum issues, he submits that it would not be necessary to do so. One can at least, at a trial this year, be reasonably confident that the court would be able to dispose of general damages, past losses and those losses likely to be incurred up to the age of 16. Accordingly, there would be no need to postpone those matters. On the other hand, the Claimant’s longer term future remains in doubt and could only be at this stage a subject for speculation. Mr Garnham submits at paragraph 24 of his skeleton argument:

“As with almost all substantial damages claims, this exercise involves both prediction and calculation. But the evidence is there, or can readily be found, to enable the court to carry out that task.”

On the other hand, Mr Westcott, having referred in some detail to the Defendants’ expert reports, submits that there is no evidence contained in them relating to the Claimant’s adult prospects which would enable a judge to quantify her future needs and losses in any meaningful sense.

Both counsel developed submissions of law as to the principles to be applied in cases of this kind but, in the end, there was very little between them as to the law. It is Mr Westcott’s case, quite simply, that the authorities do not assist to resolve the current dispute. Counsel were effectively agreed as to four general principles which can be derived from the authorities cited. These may be summarised briefly as follows:

Here, Mr Westcott submits that the circumstances are sufficiently uncertain and complicated to justify taking an exceptional course. Furthermore, although it is true that the Defendants have made certain concessions in general terms (for example, to the effect that the Claimant will never be able to work or live independently without support), these do not help to remove the fog of uncertainty over the calculation of quantum. By December 2011, all the judge would be able to do would be to take a partially informed stab in the dark. The risk is that he or she will select a midway figure, on the limited evidence available, which would ultimately prove either too much or too little.

Ms Hall encapsulated the problem in her witness statement at paragraphs 12 and 13, where effectively she points out that justice cannot be done for the Claimant unless the Defendants concede at this stage that she will (not may) suffer significant difficulties in later life, brought about by cognitive and psychological impairment in addition to blindness. Realistic calculations could then be made. In the absence of any such concessions, it would be necessary to have solid evidence at a later stage as to the likely degree of her long term need for support.

I have very much in mind, of course, the words of Lord Hodson in Mulholland v Mitchell [1971] AC 666, to the effect that there is a need for finality and, correspondingly, for the court “to make the best estimate it can as to the future life of the injured person, not only as to his prospects of recovery or improvement but also, as in this case, as to the cost of caring for him either in his own home or in an institution suitably equipped to deal with his condition”. That was a case where their Lordships were concerned with the issue of introducing further evidence in the light of changes subsequent to the resolution of the court. Lord Pearson emphasised that, if further evidence as to new events were too easily admitted, there would be no finality in such litigation. Similar observations were made in Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023. Here, by contrast, the issue is not whether further evidence should later be admitted but whether the court’s resolution of the quantum issues should itself be postponed until such time as solid evidence becomes available, with a view to avoiding the need for speculation and to achieving a more accurate and realistic assessment of the particular claimant’s actual needs.

From the point of view of an insurer or defendant, there are obvious disadvantages in taking such a course. My attention was drawn, for example, to an earlier decision of mine in the case of Adan v Securicor Custodial Services Ltd [2005] PIQR P6, where I referred at [24] to “ … the continuing incubus of potential liability and the uncertainty confronting the defendant’s insurers”. I was of opinion, in that case, that this would be out of all proportion to any possible corresponding benefit to the particular claimant. The facts were rather unusual, in that the uncertainty related to the possibility of the claimant improving in his mental health to such an extent as to be released from Rampton Hospital (thus requiring expensive and continuing care in the community). I did, however, acknowledge that there could be circumstances where a long term postponement might be necessary in the interests of justice. At [23] I addressed the matter in these terms:

“It is possible, no doubt, to envisage a hypothetical case where the nature of the damage and the likelihood that it will be incurred is clear, but quantification cannot yet be meaningfully assessed. In such a case, it may well serve the interests of all concerned to postpone the quantification until the necessary evidence becomes available. Here, by contrast, the prospect of any significant improvement in the claimant’s mental health is largely speculative.”

Mr Westcott submits that the present circumstances represent just such a hypothetical case as I then had in mind. The concessions made so far by the Defendants recognise that the Claimant is likely to suffer some degree of long term difficulty in conducting her adult life, and to need some care and support in so doing. It is the means by which the court is to achieve a realistic computation of meeting those needs that is in issue – and which is likely to remain a matter for speculation for some years to come.

In the end, although it is a very exceptional course to take, as I acknowledge, I have come to the conclusion that this is a complicated case in which the long term outcomes for the Claimant are uncertain and speculative. In order to do justice, in accordance with the overriding objective, it seems to me to be plainly right that I should make an order in the terms sought by Mr Westcott and thus, albeit regrettably from the Defendants’ point of view, postpone the exercise of quantifying long term loss until such time as there is solid evidence available.

I should add that I was invited also to grant permission to the Claimant to introduce evidence from an educational psychologist for the purposes of the hearing in December and I indicated at the close of the hearing that I would do so.