Reaney v University Hospital of North Staffordshire NHS Trust & Anor

The draft judgment following the substantive hearing in July was sent to the parties on 11 August. Thereafter attempts were made between the parties to resolve the quantification of damages, but this proved impossible. The final judgment following the substantive hearing was handed down on my behalf on 19 September: see [2014] EWHC 3016 (QB). The issues concerning the quantification of damages have been the subject of written submissions ending with a Reply to the Defendant’s Submissions on Quantum from Ms Hallissey dated 6 October. This supplemental judgment is intended to deal with the outstanding issues.

Mr Feeny says that the Defendants do not accept that the issues now raised by Ms Hallissey go solely to quantification and submits that it is still necessary in respect of certain aspects of the claim to consider the legal approach to causation. I will reflect on this feature of his submissions as I go through the areas of dispute, but I am bound to say that I had thought my position on causation was clear.

Happily, no issue is now taken with the figures for past loss set out in the Claimant’s submissions although it is said by the Defendant that not all the arguments relied upon by the Claimant are accepted as correct. This means that the claims for past care, chiropody, equipment costs and travel expenses are not contested.

The first major issue is the multiplier to be chosen for the assessment of future losses.

The essential (effectively agreed) finding is that the Claimant would live until the age of 78, a further 10.75 years: see paragraph 74 of the judgment.

The issue between the parties is which Table in the Ogden Tables should be used to calculate the multiplier. The Claimant contends for a multiplier of 9.44 utilising Table 28. The Defendants accept that 9.44 is the multiplier derived from using Table 28, but contend for 8.2 on the basis that the appropriate Table is Table 2 (adjusted).

What lies at the heart of this debate is whether the effect of the finding to which I have referred is a finding of the Claimant’s life expectancy, taking into account all relevant contingencies, or is a finding that her life expectation has been reduced accordingly and is still subject to other contingencies associated with mortality.

Mr Feeny draws attention to what is said in the explanatory notes to the Ogden Tables (7^th Edition) at paragraph 20 under the heading “Impaired Lives”:

“In other cases, the medical evidence may state that the Claimant is likely to live for a stated number of years. This is often then treated as requiring payment to be made for a fixed period equal to the stated life expectancy and using Table 28 to ascertain the value of the multiplier. In general, this is likely to give a multiplier which is too high since this approach does not allow for the distribution of deaths around the expected length of life. For a group of similarly impaired lives of the same age, some will die before the average life expectancy and some after; allowing for the spread of death results in a lower multiplier than assuming payment for a term certain equal to the life expectancy.”

He adds a reference to paragraph 21 as follows:

“In cases where pecuniary loss is to be valued for a fixed period, the multipliers in Table 28 may be used. These make no allowance for mortality or any other contingency, but assumed that regular frequent payments (eg. weekly or monthly) will continue throughout the period.”

These paragraphs, he submits, reflect the approach in the cases of Crofts v Murton [2009] EWHC 3538 (QB) (His Honour Judge Andrew Collender QC) and Smith v LC Window Fashions Limited [2009] EWHC 1532 (QB) (Cranston J).

Ms Hallissey submits that those two cases and the approach in the quotations from the Ogden Tables reflect a different position from this case. She submits that in those two cases the court had decided what the reduction in life expectancy should be as a result of the injury sustained whereas in the present case the overall expectation of life has been determined. She draws attention to what Cranston J said at paragraph 43:

“… Table 1 sets out reasonable estimates of the future mortality likely to be experienced by average members of the male population. It is a statistical expectation of life figure and as such cannot tell how long any particular person will live. Table 28 is a table to be used where pecuniary loss is to be valued for a fixed period. It makes no allowance for mortality or other contingency. Avoiding a double discount for mortality was the principle laid down by the Court of Appeal in Royal Victoria Infirmary v B [2002] Lloyds LR (Med) 282. In my judgment the learned judge in Crofts v Murton rightly said that the Royal Victoria principle applied only where, on the medical evidence, the court can determine exactly how long an individual in a particular case can be expected to live. In that case, as in the present claim, the medical evidence did not decide the overall expectation of life, how long the claimant would live. Rather it determined by how much his pre-morbid statistical life expectancy had been shortened. There is no double-counting of mortality by use of Table 1.”

That, she submits, supports the proposition that where the overall life expectation has been determined by the court, Table 28 is appropriate. Further support for that approach is, she says, to be found in the judgment of Swift J in Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB) where she said the following at paragraphs 100-105:

“100.

The paediatric neurologists in this case have assessed the claimant’s life expectancy by reference to his mortality risks as a whole, not just those risks associated with his cerebral palsy. This is not one of those cases (such as Tinsley, Crofts or Smith) where the medical evidence relates only to the reduction in life expectancy caused by a number of identified factors specifically relating to the claimant and the injury which is the subject of the claim. The predicted life expectancy which I have determined is a specific finding relating to the individual life expectancy of this claimant.

101.

I accept that the decision in B did not involve an acceptance of Ogden Table 28 (or its forerunner, Table 38), in preference to the application of the Paragraph 20 methodology and the use of Ogden Table 1 or 2. Paragraph 20 had not been published at the time that B was decided and the defendant in B was not advocating the use of a different actuarial Table as a basis for calculating the appropriate multiplier. Instead, the defendant proposed a further deduction from the multiplier calculated by reference to Table 38 on the basis of medical statistical evidence to the effect that there was a greater chance that B would die earlier than her predicted life span than of her living longer than predicted. The Court of Appeal rejected that proposal.

102.

The decision in B was based on the principle … that, where a claimant’s life expectancy has been predicted (having been agreed between the parties or determined by the court), there is no room for any discount on the ground that the prediction might be wrong.

103.

I have heard no statistical evidence explaining the Paragraph 20 methodology. Consequently, I do not understand the logic of assuming a spread of two years around the predicted life expectancy of 28 years, in preference to a spread of – say – four, six or eight years. But, whatever the logic may be, it is clear that the Paragraph 20 methodology is intended to make allowance for the fact that the predicted life expectancy of 28 years might be wrong. Moreover, it seems to me that underlying the methodology must be the assumption that the claimant has a greater chance of dying before the expiration of his predicted 28 years than of surviving for longer than 28 years. If that were not the case, the multiplier produced by using Table 1 would be greater than that derived from the application of Table 28. If I am right about that, the argument being mounted by the defendant in this case is, in reality, the same as that advanced unsuccessfully in B.

104.

In any event, there can be no doubt that the effect of using Table 1 in the manner suggested by Paragraph 20 is to produce a discount (albeit a relatively modest discount) from the multiplier based on the full life expectancy as predicted. That being so, the application of Table 1 in accordance with the Paragraph 20 methodology in a case such as this would offend against the principle that there should be no discount from the multiplier calculated by reference to a claimant’s predicted life expectancy.

105.

In those circumstances I shall calculate the relevant multipliers in accordance with Ogden Table 28 ….”

In my view, what was agreed between Mr Gardner and Mr Tromans (and endorsed by me) was a predicted life expectancy of this claimant. The most significant factors affecting her life expectancy (for example, her immobility, her weight and her smoking) were taken into account in arriving at this prediction. Mr Feeny contends that the Claimant still has all the usual contingencies associated with mortality, but that does not seem to me necessarily to be so: at all events, because of her immobility some of the risks that more mobile people will face are obviated, but, of course, she faces the risks associated with immobility. There is, of course, no certainty with any prediction of this sort, but, in my judgment, adopting Table 2 would result in an additional, and thus unfair, discount.

It follows that the multiplier contended for by Ms Hallissey should be adopted.

I understand that once the multiplier has been decided, the Defendants will be able to agree the figure for the future accommodation claim.

first six months

In paragraph 79 of the judgment I endorsed the approach suggested by Ms Hallissey. Mr Feeny submits that the evidence is that the Claimant and her husband will not tolerate overnight carers in their current accommodation (which is referred to briefly at paragraph 50 of the main judgment). He submits that no evidence was led from them which would indicate that their view of the position would change after a favourable judgment. Accordingly, he submits that it is likely that the current care regime (with possibly some increase) will apply until the move to new accommodation. On a broad brush approach he suggests that I should allow £25,000.

Ms Hallissey’s response is that the evidence about the difficulties of having a live-in carer was largely to do with Mr Reaney’s inability to sleep properly when the carer would be walking around at night or watching the television. When this was happening he was still at work. He has, of course, since retired. The situation now, of course, would be that they could choose their own carers and impose their own conditions for the limited period before they moved to a new property.

I do not find it an attractive proposition that the Claimant and her husband should, in effect, be condemned to participating in an unsatisfactory care regime whilst endeavouring to move property, a care regime that is also unsafe from the Claimant’s point of view. On the other hand, it is probably unlikely that the full regime could be implemented immediately, but equally there may be an incentive on their part to move more quickly once the means to do so is to hand. The idea of a lump sum is an attractive way of dealing with those factors, but I do not think that anything as low as £25,000 would be fair.

On a very rough-and-ready approach, I think that awarding two-thirds of the total claim for 6 months (approximately £132,000) is fair, yielding a figure of £88,000 for the first 6 months.

In his written submissions, Mr Feeny has drawn attention to cases where a “cut-off” has been applied to future losses when it has been shown that a claimant would have reached the same position as a result of an existing condition (for example, osteoarthritis) as he or she would reach by virtue of the negligence in issue. He contends that, given the finding in the judgment that the Claimant would have required hoisting by two carers from the age of 75 (presumably referring to paragraphs 37 and 38), and no specific additional care need arising from the Defendant’s breach of duties having been identified at this stage, then there is no continuing care and accommodation claim after this age.

Inevitably in a case such as this, there are aspects of the Claimant’s current or likely future condition that would or might have been present at some stage in any event. I dealt with that in the substantive judgment in some detail. I concluded that from about six months after her discharge from hospital her pressure sores and their sequelae “made a significant and material difference to her physical well-being and her care needs from the position had those sores and their sequelae not been permitted to develop”: see paragraph 68(i). My conclusion, as Ms Hallissey observes, was that she requires 24/7 care from two carers for the rest of her life which was materially different from what she would have required but for the development of the pressure sores and their sequelae. My conclusion relating to her care requirements in that situation is set out in paragraph 68(v). As I trust is clear from paragraphs 70-72 of the judgment, I did not see this as a case where there was any “cut off” in the future care or accommodation requirements of the Claimant and I saw no basis (if it is contended for) for some credit to be made by the Claimant for the notional cost of the care she would have required in any event. It was not care that she would have paid for.

Mr Feeny submits that because the Claimant would have been wheelchair dependent in any event she would have required a wheelchair accessible vehicle irrespective of the consequences of the pressure sores. Alternatively, he says the Claimant’s position in terms of transport from age 75 will be identical to that in the “but for” position.

I am unable to accept either aspect of that proposition and I do not consider that it fairly represents what I had concluded. As a result of the need for 24/7 care by two carers, it was clear (and, I thought, agreed) that the Claimant would require a larger vehicle than she would have required in any event: see paragraphs 51 and 68(iv). The need for such a vehicle was, in my judgment, caused (or materially contributed to) by the negligence of the Defendants (see paragraphs 70-71) and there is no need for any notional credit to be given against the claim for the cost of the vehicle that would have been required either because it could never have been afforded or because, if it was provided, it would have been provided at no cost through the local authority (see paragraph 72 of the judgment).

Mr Feeny takes a point in relation to the Claimant’s future physiotherapy requirements in the light of Ms Knight’s evidence. Her evidence was to the effect that prior to the age of 70 the Claimant would have required six sessions a year but for the development of the pressure sores, but she now requires 18 sessions. After the age of 70 she will, Ms Knight said, have additional problems with her limbs and there would need to be an increase to 24 sessions whereas, but for the development of the pressure sores, she would have required. Ms Knight’s evidence was not countered by an equivalent expert on the Defendants’ side and, given that I found her evidence generally persuasive, I accept this analysis.

Again, as I understand it, Mr Feeny questions the claim for the full amount of the physiotherapy costs. The answer is exactly the same as in relation to future care, accommodation and transport. In this particular case, it is not at all clear that the Claimant would have been provided with the degree of physiotherapy that Ms Knight says would have been required in the “but for” scenario – even though it would have been “good practice” to provide it. This is an additional reason for allowing the full claim.

Mr Feeny has challenged the annual figure of £2550 advanced on behalf of the Claimant (based on a figure advanced by Ms Rachel O’Brien, the Claimant’s Occupational Therapist expert), suggesting that Ms Knight gave a figure that amounted to £203.50 per annum. He suggests that the figure of £2550 may be a typing error.

None of this figured in the evidence before me. However, it is clear that the figure of £2550 (which comprises an annual orthotic assessment of £550 and orthoses of £2000) was spelt out in Ms O’Brien’s report, cannot have been a typing error and has not been challenged other than by way of comment that it is “vague” and based on hearsay.

I have some sympathy with the suggestion that this annual figure does appear to be somewhat high, but it seems to me too late for the issue to be raised now. If the Claimant wishes to make some adjustment to the claim in the light of my comment, so be it, but otherwise I cannot interfere with a matter that could have been challenged substantively at the trial.

Mr Feeny suggests that the Claimant would have required at least one carer to go on holiday in any event and, accordingly, that one half of the annual figure of £1390 claimed should be adopted as the multiplicand, namely, £695.

I do not consider that this submission withstands the approach I have already adopted to the way the Claimant’s claim falls to be valued. She will require two carers and I see no basis for deducting the notional cost of one carer which is, in effect, what is being suggested.

I believe all other matters are agreed in the light of the acceptance by Ms Hallissey of one or two points made by Mr Feeny.

The draft of this judgment was sent to Counsel on 21 October with my request (a) that they should confirm that there were no outstanding matters for me to deal with and (b) that they should endeavour to agree on the effect in monetary terms of the original judgment and this Supplemental Judgment. They are agreed on both. I am grateful to them for the work they have carried out to this end. Its effect is set out in the Appendix to this judgment.

There will, accordingly, be judgment for the Claimant in the sum of £2,894,814.69, the final terms of the order to be agreed by Counsel.