Ellison v University Hospitals of Morecambe Bay NHS Foundation Trust

In summary, Ayla is totally immobile, with virtually no spontaneous ability to use her hands and arms. She has severe microcephaly, severe cortical visual impairment such that she is effectively blind, and profound learning impairment. She underwent a gastrostomy at 18 months, and is entirely dependent on a gastrostomy tube for feeding. Prior to that operation she was at risk of aspiration and chest infection, the incidence of which has reduced since but has not been eliminated. She has suffered a number of orthopaedic problems, most seriously bilateral hip dislocation resulting in surgery in 2011. She is osteoporotic and hence at risk of spontaneous fracture. She suffers from epilepsy.

She is doubly incontinent and wears nappies at all times. Due to her brain damage she is unable to control her body temperature, so that she is at risk of hypothermia if environmental conditions are not maintained suitably to protect her. Her cognitive and intellectual abilities are extremely limited. This is clearly a case at the extreme end of the cerebral palsy spectrum. Given these features of her condition it goes without saying that Ayla is wholly dependent on others, and will never be employable. Notable features of her condition are painful spasms, and prolonged screaming or crying, as well as a serious sleeping disorder, such that she often sleeps during the day at school, but wakes frequently at night. None of these features of Ayla’s condition was disputed.

Dr Johnson saw Ayla in January 2013, when she was aged 5 years 9 months, and reported in March 2014. In the first of his agreed reports he states that Ayla presented with profound mental and physical impairment secondary to very extensive damage to her brain at cortical and sub-cortical levels, sustained at birth. A substantial loss of brain tissue and failure of brain growth have compounded the primary effects of brain damage, creating a markedly reduced biological capacity for remaining development and learning. Recovery has been extremely limited, and there is no prospect of any further recovery. Development to date has also been extremely limited and will remain so, reports Dr Johnson. He found no evidence that she had developed any useful or purposeful motor function. I add that two years after Dr Johnson saw her, now approaching the age of 8, Ayla remains substantially immobile, with some ability to hold her head up and to move it, but no ability to move her upper or lower limbs spontaneously.

Returning to Dr Johnson’s report, from a neuropsychological perspective there is no evidence, he states, that Ayla has any functional language in either receptive or expressive domains. There is no prospect that she will ever develop any cognitive aspects of language, or literacy, or numeracy. The available evidence on cognitive function, says Dr Johnson, is that there appears to be little beyond basic orienting, recognition of, and responding to familiar stimuli. He states: “I consider that Ayla's cognitive and intellectual abilities are probably so low as to be immeasurable in any meaningful way." The prognosis is for complete dependency in all domains, with no foreseeable prospect of any significant improvement in her condition.

However, there is evidence "that Ayla can respond favourably to direct verbal and physical interaction”, and there is the potential "to improve the quality of her interaction, contentment and quality of life generally by providing an appropriate physical environment and levels of care tailored to her specific needs." I interpose that the film taken by Mrs Ellison in May 2013 shows Ayla responding with evident pleasure to playful touching and tickling. Dr Johnson notes Ayla’s difficulty in regulating her sleep-wake cycle. Doubting that this problem can be managed pharmacologically, he identifies the most effective solution as a more appropriate physical environment at home, and increased use of hydrotherapy to comfort and relax her.

Prof Levene and Dr Pohl each saw Ayla on 29 May 2012, when she was just over 6 years old. Prof Levene initially reported in June 2013, Dr Pohl in June 2014. These experts’ joint report is dated 4 August 2014. They agree on the essential characteristics of Ayla’s condition, recorded in the first paragraph of this judgment, and that she has a very severe motor disorder which will not improve, and visual impairment due to brain injury. They agree that the prognosis is for no further improvement in her condition. The experts agree that Ayla’s poor sleep hygiene is due to her cognitive impairment, the need for regular care, spasms, nocturnal fits, and the need for repositioning. As these factors are not likely to change, her sleep hygiene is unlikely to improve as she gets older.

As to spasms, Prof Levene’s report of June 2013 noted that Ayla “appears to suffer significant pain as a result of her unpredictable spasms.” Dr Pohl’s report did not address the issue of pain. The two experts agree that Ayla’s spasms are a manifestation of her fluctuating dystonia, often triggered by stimulation or discomfort. They are considered likely to remain a persisting problem. They identify methods of managing these problems symptomatically, including careful management and handling, and hydrotherapy.

The spasms suffered by Ayla, and the associated pain and screaming, are clearly a significant feature of this case. Carla Ellison’s first witness statement, made in January 2014, describes her own observations, as a full-time carer, of these aspects of Ayla’s condition. She describes her child suffering with tightness and spasms in her muscles, which she filmed on 22 January 2014. The film shows Ayla’s arm muscles tightened, her hands in a claw-like posture, moving up and down in what the family has called “strumming” motion. She is in evident discomfort, grimacing, crying and moving her head from side to side.

Mrs Ellison states that Ayla often screams for hours on end “and we understand that this is because she is in pain”. Ayla’s sleep was poor as a baby, according to Mrs Ellison’s statement. By January 2014 the position was that she “hardly sleeps at all and she is usually awake for most of the night”, waking up and needing attention about 10 times a night on average. She became uncomfortable in the night, states Mrs Ellison, “due to her involuntary movements and spasms which cause her to scream so she needs to be repositioned”.

Mrs Ellison states that Ayla’s crying was, in January 2014, worse than ever. “She screams inconsolably at the top of her voice for hours on end… when her muscles go into spasm she screams and this causes her to become even more stressed out and upset.” Mrs Ellison’s statement says that “We have tried everything to try and stop Ayla from screaming as it is distressing to see Ayla so upset and to be unable to console her.” The only thing that helps, according to the statement, is putting her in warm water, which relaxes her muscles and calms her down. At the time of the statement she had limited access to a hydrotherapy pool and the parents were making do with a bath at home. Mrs Ellison’s supplemental statement of December 2014 elaborated, making clear that her daughter does not respond to pain relieving medication such as paracetomol or Nurofen, though this has been tried, and that only full immersion in the hydrotherapy pool seemed to settle her and relax her muscle spasms.

The frequency of Ayla’s spasms, and of the consequent pain and screaming, were in issue between the parties. Mrs Ellison’s first witness statement exhibited two diaries she had prepared to illustrate the level of care provided to Ayla. One was a 4 day diary from March 2013 (“CLE1”) and the other a two week diary of night care between 29 March and 11 April 2013 (“CLE2”). Notable features of CLE1 are that:-

CLE2, the night diary, supports Mrs Ellison’s evidence that Ayla wakes every night, and that she is often crying. On 31 March 2013 she is recorded as awake, screaming and shaking and in spasm at 10.35pm, just over an hour after being put to bed. She was cuddled to try to stop this, for 60 minutes. She woke again at 2.35am when Mrs Ellison sat in her room to stop her crying. On 2 April 2013 Ayla was put to bed at 9.30pm but woke at 11.30pm “crying, stiff, fuming and very unsettled”. She cried most of the night, and although Mrs Ellison sat in her room would not go back to sleep. On 8 April Ayla was put to bed early, at 8.30pm, having cried “from the minute she got up til bed time”. She woke at 10pm “screaming, shaking, limbs in spasm”. Mrs Ellison sat with her, cuddling her and stretching her legs to try to stop the spasms, until 3 hours later when she went back to sleep.

Mrs Ellison made a second witness statement dated 15 December 2014 for the purposes of commenting on the defendant’s expert evidence, and to bring matters up to date. In it she stated that “Ayla’s condition is much the same as it was at the time of my last statement”. She exhibited a further night diary which she had completed, covering the period from 28 July to 3 August 2014, when two people were needed to attend to Ayla’s needs. Some summaries of extracts will illustrate the picture.

The issue of frequency of spasms, and related issues, were explored in Mrs Ellison’s oral evidence. She said that Ayla has spasms every day. Although she was not always screaming, “She will always have spasms every day, that has just become Ayla. These spasms, you have got to be constantly moving her, trying to change -- people don't realise the whole time that Ayla is sat with me, I'm constantly doing stuff on her to try and stop her from getting to that …”

The accounts given in Mrs Ellison’s diary entries were not challenged, but she was cross-examined by reference to daily record sheets or logs prepared by carers in October to December 2014. Ms Vaughan Jones focused on a period between 1 and 9 December 2014 and took Mrs Ellison carefully through the handwritten records, suggesting to her that these showed that there was bad crying on days two and three of the period but that for much of the rest of the time Ayla was fairly settled. Mrs Ellison’s response was that the true picture was not as the records suggested.

Challenged with the fact that the logs contained no record of inconsolable crying Mrs Ellison replied: “No, but I am the one who is consistently there and I know that she is having spasms. If she screams when she wakes up, she is having spasms and it goes on all day and all night.” She continued: “… like, records aren't consistent. People write stuff and like the last few weeks people -- she has been screaming literally every single night for the last six weeks.” Explaining further why she did not consider the records shown to her were representative of the true picture Mrs Ellison said:

“I'm there 24 hours a day. I spend all of my minutes of the day helping -- I am the second carer all the time, which I don't want to be. I'm the one who is there, constantly, and I am telling you that my daughter is in agony, and she has been, and she has been like that since she has been a newborn baby, and she needs some help. But it's not fair. There is nothing that they have tried, other than hydrotherapy, that can make a difference with her, and that's why I'm willing to take -- I don't want to go off for three hours on a Friday night when I have got three other children, not being able to make their tea, not being able to put them to bed. I'm willing to go all the way to Kendal to take her, even though I don't want to, because I know the benefit it has for her and I know that that night she is not in pain.”

It was put to Mrs Ellison that what the records show generally is that, on two perhaps three days a week on average, when she hasn't got a chest infection or one of those provoking problems, Ayla will have periods of uninterrupted screaming, but on about half the week she doesn't. She answered: “Yes, I would say that, yes, but that doesn't like – the other day she is still -- it's not continual screaming but probably half the week is when she wakes up in the morning and she is already starting and it tends to be worse of a weekend as well. That's the two days that she seems to be at her worst with the spasms.”

The issues of spasms and pain are also dealt with in the evidence of other witnesses. One of these is Carla Ellison’s mother, Lesley Godwin. Mrs Godwin states in her unchallenged witness statement of 20 January 2014 that she has helped to care for Ayla since she was born. She says that “Most days Ayla cries for a lot of the time and she can become quite agitated. She is also very stiff and in pain with her muscle spasms causing her to scream for hours on end.” She describes Ayla screaming non-stop all day as something which “happens frequently”. Mrs Godwin states that she does some night shifts helping to look after Ayla while Carla tries to get some much-needed sleep. She says: “Ayla often cries in pain with her muscle spasms during the night so I rub her legs and try to settle her but this can take a long time and I end up having to cuddle her for hours at a time.” Mrs Godwin remained a carer for Ayla during 2014, and is one of the carers whose records cover the eight day period examined in Mrs Ellison’s oral evidence.

Another of Ayla’s carers was her paternal grandmother, Gill Ellison. She has also, with her late husband, helped care for Ayla since she was born. She was been a paid carer from November 2013 until a time in 2014, when her husband Phil developed terminal skin cancer. At that time, as Carla Ellison’s second statement explains, Gill Ellison’s focus understandably shifted to her husband. In January 2014, when she made her witness statement, Gill Ellison was carrying out the night shift on Sunday, Wednesday and Thursday nights, but also providing unpaid care for considerably more time than that. She describes Ayla screaming all the time as a baby. Now (in January 2014), she says that when she sits by her bed at night, “Ayla might nod off for an hour and then she will wake up crying”.

Mrs Gill Ellison describes attempts to go out for lunch as a family at weekends when, she says, “most of the time Ayla starts screaming uncontrollably …” and there is nothing they can do to stop this. Mrs Gill Ellison speaks also of the “remarkable” change in Ayla when she is in the hydrotherapy pool, describing it as changing her mood, relaxing her and seeming “to ease the pain she suffers with from her muscle spasms.” This evidence from Gill Ellison is unchallenged, as is the statement of the late Phil Ellison which records that Ayla often gets very distressed and cries a great deal, with the “only thing” that seems to relax her being hydrotherapy. Pauline Bateman, a physiotherapist who has seen Ayla at the Sandgate hydrotherapy pool states that she has seen that Ayla is often crying before she gets into the pool, and has severe spasms with her body very stiff and her joints quite tight. When in the pool Ayla seems to get “respite from this pain”.

It is a fair observation that the logs for the eight-day period in December 2014 that were scrutinised in cross-examination do not record symptoms of the same frequency or severity as Mrs Ellison’s diaries. However, Mrs Ellison is the one person who has been a constant carer for Ayla for the best part of 8 years. She is plainly in the best position to speak of her daughter’s condition, and the frequency with which Ayla experiences spasms and pain evidently cause her considerable pain. Mrs Ellison conceded that there are two or three days a week when Ayla is continuously screaming, but that she does not do this every day. However, I do not consider that her evidence amounted to a concession that Ayla was not crying from pain on the other days of the week. Quite clearly, she did not concede as much. Rather, her evidence, taken overall, was to the effect that the symptoms were worse on two or three days of the week, when there was prolonged screaming for hours. There can be no doubt that Mrs Ellison’s evidence was sincere. Her evidence was given with feeling, but also with authority. I recognise the risk that the enormous strain that Mrs Ellison’s constant caring responsibilities must inevitably have put her under could lead her, in all sincerity, to overstate the true position. In my judgment, however, she has not done so, or not to any significant extent.

I accept the diaries at CLE1 and CLE2 as faithful and accurate records of the daily events at the periods of time in 2013 which they cover, and as typical of Ayla’s daily routine at around that time. Not only is it hard to envisage these records being significantly inaccurate, they are consistent with and supported by the statements of Mrs Ellison’s mother and her mother-in-law. Those statements of January 2014 support the diary entries and Carla Ellison’s evidence that Ayla’s condition continued to involve frequent spasm and pain until January 2014.

I do not consider that Ayla’s condition and symptoms have materially altered for the better since January 2014. I accept the evidence given by Carla Ellison on that question, in her second witness statement and its exhibit, and in the witness box. If anything, the pain experienced by Ayla seems to have got worse in recent times. The recent six week period described by Carla Ellison certainly appears to have involved worse pain and screaming than the period covered by the March-April 2013 diaries, and the subsequent period described in the written statements of January 2014.

It may be that for some reason the eight day period looked at via the logs of December 2014 was unusual. Since that period ended only just over a week before Mrs Ellison’s second witness statement was made it is more likely, in my judgment, that screaming, spasm, and pain occurred according to the previous pattern or to a similar extent, but for some reason went unrecorded. I note that the format of the logs invites the carer to record information under specific headings, and that these does not specifically encourage carers to record pain or screaming, as opposed to seizures, which are specifically mentioned. Carers may have developed a familiarity which led to these symptoms being omitted from the records.

Whatever the reason for the possible omissions in the logs, I find that typically over recent years Ayla has suffered spasm, with resulting pain, on most if not all the days of the week; and that for two or three days a week on average this has involved continuous pain and prolonged and uninterrupted screaming, for periods upwards of 60 minutes and up to several hours. I find that this is most common after school, and at the weekends, but that its incidence is otherwise generally unpredictable.

I also find that the spasms occur not only by day but also at night, and that prolonged pain and consequent screaming for an hour or more happens quite frequently – once or possibly twice a week - during the night time. On the basis of the expert evidence, I conclude that these conditions are caused by her injuries and likely to persist according to broadly the same pattern unless and except to the extent that the pain is relieved by one or other of the methods identified as having some effect, most prominent of these being hydrotherapy.

The current, 12th edition of the Judicial College Guidelines contains figures adjusted to reflect not only the Simmons v Castle uplift but also inflation to the end of April 2013. Since then, the RPI index has risen by some 3.2%. The suggested range for tetraplegia, at section 2 of the Guidelines, is between £262,350 and £326,700 (uprated for RPI, £270,745 - 337,154). The guideline states:

“The typical case of tetraplegia attracting an award in the mid-range of this bracket is appropriate for cases in which the injured person is not in physical pain, has full awareness of their disability, has an expectation of life of 25 years or more, has retained powers of speech, sight and hearing but needs help with bodily functions.”

The figure at the mid-point of the stated range is £294,525 (£303,500). The guideline goes on:

“At the top end of the bracket will be cases where physical pain is present or where there is a significant effect on senses or ability to communicate. Such cases often involve significant brain damage where degree of insight is a relevant factor: see 3(A)(a). Lack of awareness/significantly reduced life expectancy will justify a below average award. Other factors bearing on the award include age, the extent of any residual movement, the degree of independence (if any) whether through the provision of aids/equipment or otherwise, the presence of respiratory issues and depression.”

The reference to 3(A)(a) is to the guideline for Very Serious Brain Injury, the bracket for which, with the Simmons v Castle uplift, is £227,975 to £326,700 (£235,270 - 337,154). The guideline states, so far as relevant:

“In cases at the top of this bracket the injured person will have a degree of insight. There may be some ability to follow basic commands, recovery of eye opening and return of sleep and waking patterns and postural reflex movement. There will be little, if any, evidence of meaningful response to environment, little or no language function, double incontinence and the need for full-time nursing care.

The level of the award within the bracket will be affected by:

i)

The degree of insight

ii)

Life expectancy

iii)

The extent of physical limitations

The top of the bracket will be appropriate only where there is significant effect on the senses and severe physical limitation …”

On Ayla’s behalf it is submitted that the appropriate figure is £300,000. Mr Machell submits that this is a “modest and conservative” figure given the global impact of her condition and in particular the exacerbating feature of painful spasms. The defendant does not dispute the extent of the brain injury, but submits that the appropriate figure is £280,000. Ms Vaughan Jones QC relies on two particular matters highlighted in the guidelines as having a significant bearing on quantum: the claimant’s lack of insight, and her life expectancy - now assumed by agreement to be to the age of 29 and 9 months. Mr Machell counters that this is not by any means a “short” lifespan.

Ayla’s condition clearly does not match the “typical” case referred to in section 2 of the Guidelines. It includes several features characteristic of the upper end of the brackets for Tetraplegia and for Very Serious Brain Injury. There is a very significant effect on senses: there is no language function, and an inability to communicate meaningfully in any other way; her sight is gravely impaired; there is relatively little sign of response to environment (other than her propensity to get cold). Her physical limitations are very severe indeed, and she is wholly dependent on others; she is in need of full time care. Importantly, in my judgment, she suffers continual pain. It is likely that her present condition will persist throughout her life, that is, for a further 22 years. A lifetime of nearly 30 years, though short by comparison with average lifespans, is a considerable period over which to suffer frequent and evidently significant pain. It is not, in my judgment, a short lifespan for the purposes of the tetraplegia guidelines. It is within the band identified in the tetraplegia guidelines as a feature of the “typical” mid-range case.

Against those factors I must take account the mitigating impact of the pain relief likely to be achieved by hydrotherapy, and my findings on that issue, which are set out later in this judgment. I must also, importantly, bring into the calculation Ayla’s intellectual impairment and consequent lack of insight into her condition. Dr Johnson’s evidence, agreed as it is, is clear. It is, rightly, reflected in the case stated on her behalf in the Schedule of Loss, which asserts that “her cognitive and intellectual abilities are so low as to be immeasurable.” I recognise that Mrs Ellison has, in her second witness statement, reported an improvement in Ayla’s responsiveness since she was seen by the experts, but I have no evidence that this reflects an ability to understand her own condition. This is an important factor in the assessment of the nature and degree of Ayla’s suffering, and necessarily reduces what would otherwise be the appropriate award.

It does not, however, reduce the appropriate figure as low as the defendant’s £280,000. That is very much towards the bottom end of the suggested bracket, and inapt in my view for a case involving almost total loss of physical amenity and almost 30 years of frequent physical pain and suffering. The sum claimed is, when inflation is taken into account, already below the mid-range for tetraplegia. Taking all these matters into account, I have concluded that the sum of £295,000 represents an appropriate award of general damages for this claimant.

It is agreed that the 2% interest to be awarded on general damages from the date of service of proceedings amounts in aggregate to 4.34% to the date of trial. My award will therefore attract interest of £12,803.

It is necessary, in order to evaluate the competing cases on the accommodation issues, to consider the family background, the course events have taken in the Ellison family’s life so far, and the futures which the family might have had and will now have. The majority of what follows was unchallenged evidence. To the extent that it was challenged, I accept the claimant’s evidence – for the most part, that of Daniel and Carla Ellison.

Daniel Ellison was born on 30 November 1983, Carla on 11 July 1984. They are both from Ulverston, and have been together since they were at school together there – 16 years in all. Daniel's father Phil worked in the oil industry for some 40 years. From 1973, while his two sons were growing up, he was mostly working on rotation, spending four weeks abroad and four weeks at home so, as he put it in his statement, "I missed 50% of their lives including a lot of special occasions such as Christmas and birthdays". Two of Daniel’s uncles worked in the oil industry, and his brother Stuart now works in that industry also.

Daniel and Carla both went to university in the Manchester area, she to Salford to study midwifery, and he to Manchester University where he obtained a Masters degree in Engineering, Manufacture and Management, graduating with a first-class honours degree in 2006. Carla completed her midwifery degree at the same time. On leaving university Daniel obtained a job with Chevron UK Ltd as a Completions Engineer. He told me that he had chosen Chevron over other job opportunities available to him, including BP, because of the company’s international reach, and the opportunity to work in a number of foreign countries as an expatriate. His starting salary was £27,600. In addition, he had an excellent benefits package including a final salary pension, private healthcare, share incentive scheme, life and disability cover, vacation scheme, an annual bonus, and an offshore allowance.

But the time Daniel started work for Chevron in September 2006 Carla was pregnant with Ayla, and as a result she did not start work as a midwife, as planned. The couple rented a flat in Aberdeen while Daniel worked, largely on oil rigs in the North Sea. Carla came home to Ulverston for Ayla's birth to ensure she was among family. The couple continued living in Aberdeen for a while, with Daniel working on the rigs and Carla at home with Ayla. During this period they bought the flat they had been renting. In 2008, Daniel obtained a position with Chevron in Angola. It was unusual for someone so junior to be offered a position abroad, but he had been placed on Chevron's High Potential List, meaning he was considered capable of being a future senior manager. Only 10% of Chevron staff were on this list.

From April 2008 Daniel worked in Angola on a 28/28 day rotation, similar to that which his father had undertaken. At this time Carla and Ayla moved back to Ulverston, so that they could be near their relatives whilst he was away. Carla rented a home there. The Aberdeen flat was rented out, and had been rented out ever since. The rent covers the mortgage payments and other outgoings but no more. The couple married in December 2008. At the same time they bought the house in Ulverston which they presently occupy.

Daniel’s salary rose with his years with Chevron and his seniority. He was promoted twice whilst working in Angola. This, coupled with a 40% uplift on his salary, the tax on which was paid by Chevron, meant his salary was around £66,000 in 2009, rising to £80,000 by 2011. A performance management form for 2009 recorded his supervisor’s opinion that "Dan is certainly destined to become one of the clear leaders of our company". He states that he was on target to reach a salary in 2012 in excess of £100,000.

Mr Ellison enjoyed working in Angola, and had what he describes as an "excellent standard of living". Chevron had created a purpose-built community for employees, who lived in large houses with swimming pools, with maids, and full-time drivers to take whatever they want to go. Challenged in cross-examination with the suggestion that life on the compound was a “bubble”, and that Angola was a very expensive and potentially dangerous place to live, Mr Ellison described expatriates in Angola working for Chevron as enjoying a “fantastic lifestyle” which he thought would be right for his family. His evidence, and that of Carla Ellison, is that they had planned together to relocate with Chevron and to lead their lives as a family abroad, as expatriates. Mr Ellison said in his oral evidence that his intention was to remain with Chevron for his whole career, and to work abroad for that whole period and take the family with him, relocating to various countries. His father had not had that opportunity, he said, because he was not a graduate.

The practice at Chevron was for employees such as Daniel Ellison to spend spells of three years in one country at a time, moving on to another at the end of that period, to gain a broad range of experience. The couple's plan, according to Mr Ellison, was to follow this work pattern until such time as their children were at secondary school age. At that point, they would seek to relocate to a country with a high quality secondary education system. Countries given as examples for this purpose were the USA, Australia, and Singapore, though others were said to be candidates. In his witness statement Mr Ellison said: "I do not believe we would have moved back to the UK until I reached retirement age and possibly not even then if we were happy where we were."

For employees working in locations such as Angola, Kazakhstan, Nigeria, Thailand and Indonesia the benefits package provided by Chevron included meeting all housing costs, according to Daniel Ellison. A document detailing the benefits available in Angola was produced which confirmed that the company provided “Company-assigned furnished housing” and “utilities and management”. In countries such as America or Australia, where it was possible for the employee to select accommodation in the open market, the company made available an allowance. The employee would source of their own location using that allowance. Mr Ellison was cross-examined by reference to website extracts setting out the benefits afforded by Chevron to employees in Angola and other countries, which did not include those he had described. He responded, and I accept, that the benefits packages described in these documents were for local staff and not expatriates.

As matters have turned out, it was impossible for the family to maintain a situation in which Mr Ellison was away for four week spells, leaving Carla as a sole parent in charge of Ayla. Mr Ellison concluded that he must end his career with Chevron in August 2011. He could not continue to work abroad, and the company’s only UK location is Aberdeen, too far from Ulverston to commute. This resignation meant the sacrifice of further accruals to his final salary pension, and the other associated benefits provided by Chevron. Instead, he took up consultancy work in London, the only available location in England for work in his speciality. For the past 3 ½ years he has commuted from Ulverston for that purpose, getting up at 4.10am on a Monday, and leaving home at 4.35am to travel to London, and returning home late on Fridays.

Mr Ellison initially worked for Tullow Oil, who are based in Chiswick, and rented a flat in Kew. From March 2013 he has used a hotel in Victoria during the week. He is working now for Premier Oil in offices near the hotel. His work as a consultant involves fairly frequent trips abroad, for about a week at a time, every six weeks or so. His services are provided through a limited company at a daily rate which started at £650, rising to £1,100 a day from March 2013. From the resulting income he has of course accommodation, travel, and other costs to meet. His rent in Victoria is £500 a week. The terms of engagement are a 12 month contract with a 30 day notice period. It is very likely in my judgment that self-employment under these conditions falls well short of what he would have achieved with Chevron, not only in terms of job security but also in terms of the value of the overall remuneration package.

In the same period that Mr Ellison has been a self-employed weekly commuter the couple have had three further children: Amber (born 8 February 2012) and twins, Charlie and George (born 11 March 2014). The case for the claimant is that it is unlikely that the parents would have chosen to have more than two children otherwise. The evidence of Daniel and Carla Ellison is that the weekly commute which Daniel has been undertaking has put a huge strain on both of them. Daniel states that it is “exhausting and very stressful”. Carla states that the present situation is putting an “immense strain” on their relationship. The period when he was in Angola was also hard, as she was left without his support for 4 weeks at a time. They both say that they wish to move to the London so that the family can be together. Carla Ellison states “I believe that it is vital that we all live together as a family and we need to move to London as soon as possible.”

The chosen area of London is the Richmond/Kew area. It was selected as it is familiar to Mr Ellison, straightforward for his commute to the locations at which work is likely to be available to him at present (Chiswick or Victoria, or possibly BP at Sunbury-on-Thames), and Heathrow airport is reasonably accessible. In addition, and importantly, the couple have identified a suitable school for Ayla: the Strathmore School. The school has a hydrotherapy pool. It is due to be merged and redeveloped, and will move location, in 2016. However, the new secondary school to be created as part of the merger and redevelopment scheme will have a new pool, accessible to primary and secondary school pupils.

This aspect of the case gives rise to six main issues:-

A move to London?

I have no hesitation in accepting that the stated intention of Carla and Daniel Ellison to move to London to build a new family life there is a sincere, genuine and heartfelt one. I am also satisfied that their intention is likely to be carried out if Ayla is given the means to bring it about. The written evidence of Daniel and Carla Ellison was only given added force by their oral evidence at the trial, which included courteous but probing cross-examination.

The thrust of the case that was put to Daniel Ellison is that both families are very close, live in Ulverston, and are firmly attached to Ulverston. A life in London would deprive the couple of the support of their network of family and friends. It would still involve Mr Ellison being abroad for periods of time, leaving Carla as sole parent for a week at a time every 6 weeks or so. When at home, he would be off to work early and home fairly late, seeing relatively little of the children.

Mr Ellison accepted that the couples’ families were close, but not that the support of the family and the couple’s network of friends was of such importance as to divert the couple from a move to London, so that the family could be together. He considered that on balance Carla would prefer professional paid carers. He believed he would see the children before leaving for work, as they wake at 6am and he would leave around 7. He would see them in the evenings.

He accepted that the weekends in Ulverston were better now that (since mid-2014) they have had paid carers, but said “it’s still very difficult family time” due to his exhaustion on returning from a long week in London. He did not consider that the support Mrs Ellison gets is equivalent to having her husband around to support her. He rejected the suggestion that the current situation is “manageable”. He described the situation as one in which they had to try “to sustain a marriage based on a few stolen hours at the weekends which are not quality time anyway”. He characterised this as “not manageable or sustainable and it’s something that we need to change as a matter of urgency.” This was said with emphasis, and obvious feeling.

Carla Ellison’s evidence on this topic was still more direct and emphatic, and she was unable to maintain her composure when explaining the situation and her intentions. Asked by Mr Machell whether she would stay in Cumbria at the end of the case she said firmly, “No.” She explained “Because I want to do – me and my husband have been together for 16 years and for the last 7 years we have been forced to live apart. It’s hard - …” She then broke down in tears. In cross-examination she accepted that in London it would be “quite hard” not having her mum or sisters or friends to hand to help and support. However, She said, convincingly, that “actually, having family caring and being around all the time actually isn't as good as what people think it would be – and I think it’s – having now paid carers that haven't been family is actually a better thing for me.” She was confident that on moving to London she would assemble a team of carers with whom she would make friends, as she had in Ulverston.

Asked whether the reason she had not looked at London properties so far was that there is doubt about whether they are actually going to move, she explained, with conviction, that “We have been wanting to go to London since Daniel first moved there … but its not been possible” due to not having care in place. She also made the obvious point that before it is known what can be afforded there is little point in seriously looking. There are difficulties, as both she and her husband explained, in raising a mortgage in the couple’s present situation. Mrs Ellison stated “We have been told we can’t get a mortgage anyway…”

I am satisfied that these were authentic voices, speaking the truth about intentions which this couple are likely to ensure are realised. The couple cannot now live abroad. Mr Ellison cannot deploy his skills in the UK other than in London or Aberdeen. Both cities are, on the evidence, too far for any reasonable commute from Ulverston. Aberdeen would be worse than London from that point of view, was Daniel Ellison’s unchallenged evidence. The commute has imposed great strain already, and I accept that it is unsustainable if the family are to stay together. The addition of paid carers ameliorates but will not resolve that problem. My clear conclusion is that maintaining the cohesion of the marriage and family unit require the move, and that it will take place.

It is clear that the couple do not have it all worked out, as to how exactly they will manage a life in London. It is both rational and understandable from a human perspective that they should not try to plan in detail, when they do not have key planning tools such as knowledge of the sums that will be available. I do not see the fact that they have yet to visit London properties as an indication of a lack of commitment. They have planned some key elements, such as the region of London to which they wish to move, and the availability of a suitable school for Ayla. They clearly have explored the financial aspects, including the availability of a mortgage. It is very likely that there are aspects of moving the family to London from Ulverston that will take the couple by surprise to some extent. However, the strength of character they have already shown makes me confident that they will cope with that.

A hydrotherapy pool?

I am asked to rule on the issue of principle. I am not asked at this stage to determine what would be the reasonable costs of providing, maintaining, and replacing such a facility. There is agreement on the size of pool that would be required, if any is. The parties consider that they are likely to be able to agree the figures if I find in favour of the claimant. However, the defendant relies in support of its case on this issue on the overall scale of expense that the provision of an in-home pool would involve. The costs, which I will come to, are undoubtedly high, and the claim is not advanced lightly, says Mr Machell, but he submits that the evidence is as strong in this case as it is ever likely to be.

For the defendant it is submitted that the court will only award the costs of installing and maintaining a hydrotherapy pool in the home when three conditions are satisfied: (i) it is necessary as part of the therapeutic treatment of the claimant: Cassell v Hammersmith & Fulham Health Authority [1992] PIQR Q168, Q190 (Purchas LJ); (ii) there are no other reasonable alternatives available: Whiten at [262-263]; (iii) the costs are proportionate to the benefit to be obtained: Whiten at [5]. Ms Vaughan Jones put the third point this way in closing: it is for the court to weigh up whether the additional symptomatic relief which a pool at home would provide is sufficient to justify the very high cost, and the answer taking all relevant factors into account is no.

The observations of Purchas LJ were made in passing and were not part of the ratio of Cassell, but I would accept the point, on the footing that “therapeutic treatment” is not given too narrow a meaning. I have already indicated my views on the proportionality point: I accept Ms Vaughan Jones’ second criterion but not, in full, her third point. It seems to me that the issue I have to decide in the present case is best stated in this way: whether the provision of a hydrotherapy pool within the new house is required in order to place Ayla in the same position that she would have been in if she had not been injured, so far as money can do so. If there is a reasonable alternative which would achieve the same or substantially similar benefits at lower cost, the answer to that question will be no. But if there is significant harm that cannot be made good otherwise, the mere fact that the making good will be expensive is not an answer to the claim.

There is a terminological point that it is as well to get out of the way. Strictly speaking, I am not concerned with hydrotherapy, but with water-based activity. It is accepted on behalf of the claimant that immersion in water confers no medical benefit on Ayla, in the sense that it will not in any way improve her condition. Prof Levene’s evidence to me was that for that reason the use of the term “therapy” is somewhat clumsy. He identified the benefit as symptomatic relief, putting it this way in his oral evidence:

“Medically, as a doctor, we can treat and cure some conditions but we obviously recognise that we can't treat and cure all of them and, sadly, Ayla has been so badly damaged by her original brain injury that there is very little that we can do in order to improve her outcome, but an important part of the medical management, simply on a humanitarian basis, is to reduce symptoms and one of her symptoms is clearly discomfort and that's evidenced by this incessant crying that she had and I think we heard that on the video and that is reduced quite markedly when she is put into the hydrotherapy pool. So as a method of symptom relief, that is why I'm recommending head-out-of-water immersion, not for the benefit of physiotherapy or improving outcome later on, it's simply to try and improve and reduce the uncomfortable nature of the spasms that she has.”

For convenience, I shall continue to refer to hydrotherapy, for convenience, subject to the reservation I have noted.

It is not disputed by the defendant that hydrotherapy affords some benefits. Indeed the proposition that it affords some symptomatic relief is common ground between the medical experts. The physiotherapy experts agree that hydrotherapy is reasonably required as part of Ayla’s regime. What the defendant does not accept is that the benefits can only be made available by making a hydrotherapy pool accessible to Ayla at her home. The defendant’s case is that provided other methods of avoiding and dealing with spasms and associated pain are properly deployed, access to external hydrotherapy pools twice a week would be sufficient, if supplemented by bathing at home in a Jacuzzi-style bath.

I have already referred to some of the evidence of Carla Ellison on this issue, as well as that of others, when dealing with the issue of the frequency of Ayla’s spasms. My findings on that issue are of course important for the issue that I am now addressing. The essence of Carla Ellison’s evidence as to the need for and benefits of hydrotherapy can perhaps be best conveyed by the following passages from her witness statement and oral evidence.

In her first statement she explained that “the only thing that calms [Ayla] down is hydrotherapy. As soon as Ayla is immersed in the hydrotherapy pool, the change in her behaviour and facial expression is instant and she calms down straight away. ... Hydrotherapy is a massive form of pain relief for her and no other form of pain relief, including medication works for her.” She explained that the journey to and from the Sandgate pool was around 2 hours and often undermined the benefits of the pool session. In her second statement Mrs Ellison stated that in her view Ayla “would benefit enormously from having a hydrotherapy pool available at home as this would be used whenever needed to help relieve her muscle spasms or when she is screaming.” She responded in this way to the observation made by Mrs Clegg (to whose report I shall come) that there is no scientific literature to support the effectiveness of water immersion for the relief of pain: “in Ayla’s specific case it is self-evident that it does help her with her painful muscle spasms and helps to relieve her crying.”

In evidence in chief Mrs Ellison said:

“She is constantly in pain. Every now and again she might -- her arms might just relax a little bit but then she is back into spasm again. She is constantly uncomfortable and there is nothing we can do that we have tried can make any difference to Ayla in terms of pain relief, massage, exercise, like, stretching. The only thing that we found that makes any difference with it at all is hydrotherapy. ”

In cross-examination she insisted: “there is nothing you can do to stop -- once she has started her spasms, there is nothing you can do to stop them other than literally putting her into hot water. There is nothing you can do, physically, to stop them from happening.” She spoke of the round trip to take Ayla to the Kendal pool on a Friday: “I don't want to have to travel that far every week but I know the benefits that it gives to Ayla and that -- … so I'm willing to take her there, knowing the benefit the water gives to her every week because that's the only thing that she gets any pleasure out of, one of the only things that she gets pleasure out of and it has so much effect on the pain relief for her, nothing else that I have tried has worked with her.”

The video recordings certainly provide support for the view that upon immersion in the pool at Kendal, Ayla is calm and serene. She clearly smiles, with apparent pleasure, during her lengthy immersion as shown in the “Day in the Life” film. She does not seize up, or cry, or show any sign of distress. She appears to be calm, also, as she is removed from the pool by hoist.

Ms Vaughan Jones put to Mrs Ellison a series of measures that can be adopted, and a series of aids that may be used, in order to prevent the onset of spasms and pain, or to deal with those symptoms once they appear. Mrs Ellison’s evidence was that stroking and repositioning the child would delay but not prevent the screaming. The same was true, said Mrs Ellison, of cuddling or other sensory feedback, such as making noises. When she was screaming all the time, “You can try as much as you want, there is nothing you can do to settle her”. Hydrotherapy was the one thing that had made a difference. It made her a lot more relaxed afterwards and she slept better at night time.

Mrs Ellison rejected the suggestion that a bath was as good a measure as hydrotherapy in a pool:

“We tried to put her into a bath, that makes no difference because literally on the pictures that we have provided last night was a bath was full up to the rim and only literally her bum was in the water, her knee joints were out the water, her arms were out the water, the entire top half of her body was out the water and that's literally with the bath full to the rim.”

The reference to pictures is to photographs produced by Mrs Ellison showing Ayla on a bath seat which provided support for her neck but as a consequence left a substantial part of her body out of the water. Cross-examined about references in the logs to Ayla enjoying a bath, Mrs Ellison accepted that this was of some benefit to Ayla’s legs but not to her arms which “are the main issue and they can’t go under the water.”

In his initial report, Prof Levene referred to the pain that Ayla appears to suffer as a result of her unpredictable spasms and stated, “Her parents have found that virtually the only pleasurable activity for her which causes her to smile is immersion in water during hydrotherapy." He identified another benefit as assisting in physiotherapy. He concluded that "although there is no proven long-term benefit of hydrotherapy it is likely that Ayla in particular will benefit more generally from having access to regular hydrotherapy including reduction in painful spasms, enhancement of physiotherapy and reduction in risk of spontaneous fracture."

In February 2014 Prof Levene provided a further report, having seen the claimant’s witness statements, the “Day in the Life” video, and the clips taken by Mrs Ellison. He recorded that it was clear from the video that Ayla was "a generally irritable child who cries excessively.” However, “On immersion in water in a hydrotherapy pool there is a transformation in her appearance and she rapidly settles and becomes placid. Her previously stiff tone relaxes and her four limb posture is maintained in a much more normal position." Prof Levene found that the video supported the observation that her irritability is “at least in part due to painful spasms rather than temperament”. He considered it clear that when Ayla was removed from the pool she was more relaxed for some time afterwards. His opinion was that hydrotherapy "has the positive effect of providing enjoyment and pleasure for Ayla during the therapy session and she remains more relaxed for some time afterwards. This is likely to be a therapeutic effect."

Dr Johnson’s initial report of March 2014 concluded that hydrotherapy is of benefit to Ayla. He had delayed submitting his report until that date, to await further evidence on Ayla’s functioning. Having seen the “Day in the life” video and Mrs Ellison’s recordings, he noted that the change in the child’s behaviour when she is in the hydrotherapy pool was “remarkable”, describing her as “remarkably at ease” when in the pool. His opinion was that from a neuropsychological perspective, if Ayla can be helped to relax in warm water, then "any appropriate provision would be reasonable".

Dr Johnson recommended provision of water-based activity "as shown, on a frequent and regular basis”. He considers that this is clearly a benefit and may help to stabilise the abnormal sleep-wake cycle. He recognises the disadvantages of changing, hoisting, and travel and advises that "it would be most advantageous to have direct and ready access to a pool on a frequent basis, not only for therapy and exercise, but when distressed at other times and/or social interaction with others, especially her siblings ..."

The claimant’s physiotherapy expert, Mrs Filson, also reported in March 2014. She had been to the Sandgate pool with Ayla and her parents in July 2013. She reported that immediately Ayla was in the water she opened her eyes and looked very relaxed. She continued to smile when turned on her tummy, and appeared far more alert. She described the video clips she took as clearly demonstrating how Ayla benefited from being in the warm pool. She noted that the overall body stimulation provided by being immersed in a warm pool totally relaxed Ayla, who smiled and was more alert. A warm bath had a good effect, but she could not be totally immersed and could not relax fully. In contrast to immersion the effect of a bath lasted only for so long as she was in the bath. Mrs Filson concluded that the benefits clearly demonstrated, and the fact that Ayla was reported to often be in pain and distress, meant it would be beneficial to her to have a pool installed in her home, large enough for two carers to support her in the water. Having seen Mrs Filson’s report, Prof Levene wrote a further short report of April 2014 supporting her recommendation.

The defendant’s physiotherapy expert Mrs Clegg wrote a report in June 2014, expressing the view that Ayla should have access to water immersion "to gain an additional experience and to encourage some voluntary movement if possible". She recommended a large home bath with an adjustable Jacuzzi current running through it which would assist circulation and give her some good sensory input. At this time she had viewed Mrs Filson's film clips, but not the "Day in the life" film, or Mrs Ellison's recordings. She reported that she was unaware of any scientific literature to support the effectiveness of water immersion for the relief of pain or modification of the abnormal muscle tone in cases of cerebral palsy. She remained of the view that Ayla would gain sufficient exercise by weekly admission to a suitable warm water pool such as the Sandgate pool, combined with immersion in a large bath at home.

Dr Pohl reported later in June 2014. He had reviewed the medical records, the letter of claim, the claimant's experts’ reports, and those of the defendant’s other experts. His report does not record that he had viewed any of the video material. As I have already noted, Dr Pohl’s report did not address the issue of pain. He stated: “With respect to hydrotherapy, clearly AE obtains pleasure and enjoyment from this activity, she has little enjoyment from other activities. It is reported that it facilitates the physiotherapy. However I know of no long-term benefit of water-based therapy over land based therapy and therefore, although I do not deny she enjoys it, on medical grounds, I cannot recommend that it is required."

The joint report of the paediatric neurologists dated 4 August 2014 was more positive. The material reviewed for this purpose included the “Day in the life” film. The experts agreed that “The video recordings of her daily activity indicate some symptomatic relief at the time of her water-based therapy." Prof Levene added: “She settles in a water bath rapidly and the frequency of spasms are reduced and there is probably a reduction in spasms for some time after being removed from the pool". Prof Levene also expressed the opinion that water-based therapy "appears to be an important adjunct to her comfort and relief from spasms and as such is required on a daily basis”.

On 10 August 2014 Dr Johnson provided a supplementary report, having read the expert reports disclosed by the defendant, and the joint statement of Prof Levene and Dr Pohl. He stated that water-based activity had “clear psychological benefits for Ayla’s mood and behaviour”, and the potential to improve sleep and hence her daytime routine. "If she is relaxed, then she is less stressed, a state of considerable physiological and psychological benefit to her." He identified the evidence of need and benefit in this case as being “Ayla’s obviously relaxed state when in the pool, and the absence of any other activity, in any sphere, that achieves the same effect. It is a behavioural observation, supported by evidence from this the parents.” Dr Johnson rejected Mrs Clegg’s then opinion, that once-weekly visits to a pool would suffice. He considered that "if it is to benefit Ayla, it needs to be at least daily and at times when she needs it, not when the pool happens to be available.”

When the physiotherapy experts came to prepare their joint report, they agreed that “Ayla reasonably requires water based therapy in a warm accessible pool as part of her therapeutic regime”, but disagreed about the frequency of the need. Mrs Filson noted Ayla’s muscle spasms, muscle rigidity, and pain “on a very regular basis, throughout the day and night” and her resultant crying. She advised that if Ayla had the opportunity for Head out of Water Immersion (“HOWI”) she would benefit from the physiological properties of such immersion, leading to relaxation, reduction of pain, and some enjoyment. A bath or Jacuzzi were neither long enough, deep enough, or wide enough to utilise the principles underlying this view. Mrs Clegg, who had by now viewed the “Day in the Life” film, had adjusted her opinion, now considering that Ayla would benefit from accessing a warm vessel/pool for water based physiotherapy/water exercise on a twice weekly basis.

Giving oral evidence Prof Levene made clear his view that although there was no evidence in the literature that water-based activity would improve functional outcome, immersion can sometimes have additional benefits in terms of symptomatic relief. In Ayla’s case he observed that “anyone looking at the video will see a transformation”. He did not suggest that water-based immersion is the primary, first treatment to be given to Ayla when she is irritable, but “as a last resort the hydrotherapy water-based immersion works”. Putting Ayla in a car to travel to a pool and then to go through the process of undressing, and reversing the process after immersion was apt to undo the benefits. He went on:-

“So to have that available when she requires it is useful, I would say, is essential in terms of relieving her symptoms, and on the basis of the unpredictable but relatively frequent need for it I think that to have it available and to put her in the pool on a regular basis, on a daily basis, is enjoyable for her and offers her significant symptom relief and I think there are very few other things that soothes her as much as the water-based immersion does.”

Cross-examined, Prof Levene agreed that Ayla’s spasms are different from those of an athlete with pains: they originate centrally, and probably in damage to the basal ganglia. There is a variety of means that can and should be used to avoid provoking the spasms: these include careful handling and the avoidance of any startling activities, bustle or movement. There are also methods other than immersion that could be used to deal with spasms if and when they arose. He had no medical opinion to offer on the vessel that should be used to give water-based immersion, except that partial immersion could risk hypothermia, given Ayla’s poor temperature control mechanisms. He agreed also that there was some risk that the handling required to get Ayla into and out of a pool could stimulate spasm. His overall conclusions were, however, that from the medical perspective, whatever the causal mechanisms might be, immersion in the pool was demonstrated to relieve Ayla’s symptoms, and that its benefits outweighed its disadvantages.

Dr Pohl emphasised that the mainstay of controlling tone is good posture and handling. This reduces background abnormality of tone, and reduces the chances of symptoms being provoked. Referred to the passage in his report that dealt with hydrotherapy he stated that he worked closely with physiotherapists and would defer to “the people on the ground who are actually actively doing this and the therapists who have the skill in this area” He would not "feel strongly on medical grounds that this has got to happen." Cross-examined, he accepted that the photographs of Ayla in the bath showed that it was not possible for her to be fully immersed or to achieve buoyancy. He said:

“I can see from the video and from some of the testimony that there is some benefit from periods of being immersed in water. I think that that cannot be denied but I'm not so sure that I can say that I know that's (a) the only way in which she can obtain relief, or is always the right thing for her, because we have heard that there are many circumstances in which it's not the right thing for her in terms of when she has got a chest infection or she is ill, and therefore I think I have to temper when I say strongly. I cannot advise strongly that she needs it on medical grounds.”

Mrs Filson in her oral evidence spoke of special training she had received in water-based therapy (after her evidence was concluded she made it known that this was not a qualification, but rather continuing professional development). She staunchly maintained that hydrotherapy in the form of HOWI has physiological benefits obtained through buoyancy, and the ability to carry out movements called “seaweeding” in which the body is swung from side to side in the water. She said that “seaweeding relaxes the spasm out”. A water bed does not serve a similar purpose as it is in contact with only part of the body. A bath would not provide the same long lasting effect, and could not be used for any lengthy period. It was put to her that the effect of immersion was relaxation for the period when Ayla was in the water, which is sustained for some while afterwards. She agreed. Mrs Filson did not accept that total immersion could be achieved in Ayla’s case using employing a different kind of bath support – a Burnett bath support.

Mrs Clegg has lengthy experience, and has worked with many children similar to Ayla over the years. She was in charge of a hydrotherapy tank in Dudley for 14 years. However, she ceased practice some 7 or 8 years ago, though she still sees people she has dealt with, and gives advice. In her oral evidence she explained that in her view a waterbed could be used to deal with Ayla’s spasm, that positioning is very important when dealing with spasm, and a therapy ball can be of value. Mrs Clegg saw immersion as “an adjunct to other physiotherapy techniques and the use of postural equipment and the frequency would be adjusted according to the child’s condition and mood…” She explained that watching the video had shown her that Ayla “was enjoying it very much in the water” and that she thought it would be “nice” for her to be able to go out of the house and access a pool. In cross-examination she was initially reluctant to accept that what Ayla obtained from immersion was “symptomatic relief”, but accepted this when it was pointed out that the medical experts agreed on it.

She accepted that her views had changed in two respects: first, that she now recommended use of a pool twice weekly, and secondly that she now recommended daily immersion, in a bath if not a pool. She agreed that in the photographs of Ayla in the bath she was only partially immersed. Pressed with Mrs Ellison’s evidence she was prepared to accept that it was “probable” that hydrotherapy at Kendal was the main source of pleasure, enjoyment, relaxation and symptomatic relief for Ayla. She agreed that it would be much better if this were available on an “as and when needed” basis.

The costs associated with acquiring, installing and using a hydrotherapy pool in the home are presented by Ms Vaughan Jones as follows: installation £212,705 (an agreed figure); running costs of some £5,000 per annum; replacement of the tub, hoist and dehumidifier, £78,000 over Ayla’s lifetime. The total has been reckoned at £373,985. On top of this, points out Ms Vaughan Jones, there is the additional cost of buying the larger property required in order to accommodate the necessary pool extension or pool building.

This additional cost is between £100,000, on the claimant’s case, and £250,000, on the defendant’s case. Ms Vaughan Jones, adopting her own client’s figure, calculates the annual cost of that difference on a Roberts v Johnstone basis as £6,250 per annum and hence an additional £100,000. That brings the total sum in damages that an award under this head would yield to more than £473,000 - not far short of £0.5 million, as she puts it.

It is helpful to start by focussing on some basic points about Ayla’s case, few of which are seriously disputed. If Ayla had not been injured the probability is she would have led a life free of pain, other than the ordinary shocks and pains that are incidental to everyday life. In the event, it is clear that due to her injuries she suffers discomfort amounting to pain at a frequency and to a degree which is well beyond the normal. That pain can fairly be described as continual; that is to say, it occurs not all the time but frequently. When it occurs, it is often prolonged and involves what Mrs Ellison has – in my judgment, fairly - described as “agony”. To put Ayla in anything like the position she would have been in if not injured, relief from this agony is necessary.

The question then is what means are available to relieve that pain? Medical science nowadays has many and varied methods of alleviating pain. In Ayla’s case however, most unusually, all attempts at pain relief have been unsuccessful, save for hydrotherapy. Nobody in this case has suggested any pharmacological treatment, many such having been tried without success according to Mrs Ellison. Looking at the evidence overall, I would accept that a number of techniques other than water-based methods have been used to soothe Ayla, with some success. These include repositioning, patting, cuddling, and making noises. The use of aids as suggested by Mrs Clegg could also assist – a water bed, therapy ball – as well as physiotherapy outside water. However, I accept that all methods attempted so far have succeeded only in delaying the onset of pain and screaming. The overwhelming effect of the factual evidence is that hydrotherapy is, in contrast, an effective means of relieving Ayla’s pain and discomfort, and that it is effective both during and for a significant period after it is undertaken.

There appears to be no scientific literature affirming or confirming the effectiveness of hydrotherapy in the relief of pain. The precise mechanism by which it works in Ayla’s case is not known. It appears probable that it involves relaxation of the muscles to “relax out the spasm”, as Mrs Filson put it. But I do not accept the defendant’s original case, which was put in cross-examination, that the relief obtained by Ayla through hydrotherapy is in substance relaxation, and nothing more. The evidence of Mrs Ellison and others who have witnessed Ayla’s behaviour over the years, including her behaviour in the hydrotherapy pool, is consistent in affirming that the experience relieves symptoms in the form of pain. The effect of Prof Levene’s evidence, and the medical experts’ joint report, is that the symptomatic relief obtained is relief from pain; and this is what was ultimately accepted by Mrs Clegg.

One striking feature of the way the medical and other expert evidence in this case has developed from its origins in 2013 through to the trial in February 2015 is the impact on all the experts of viewing the video recordings. I have traced through the experts’ evidence chronologically so as to highlight this. All have moved after viewing the “Day in the Life” video towards acceptance of the view that hydrotherapy has the benefit of pain relief. My own viewing of the video evidence had a similar impact on me. Having started from a position which I will admit was one of some scepticism I found that the video demonstrated first of all evidence of painful spams which supported that of Mrs Ellison but also, and still more strikingly, clear evidence of a quite dramatic change in Ayla’s behaviour on immersion. The words “remarkable”, used by Dr Johnson and “transformation”, by Prof Levene, are in my judgment entirely apt descriptions of the evident effect. Nobody has cast any doubt on the validity of that video evidence, which seems to me highly important to this aspect of the case.

I turn to the question of whether an at-home pool is required or, put another way, whether there is on the evidence any reasonable alternative means of affording Ayla the pain relief necessary to place her in something like the position she would have occupied if not injured. The appropriate starting point for addressing this question is in my judgment the frequency and timing of the spasms that cause Ayla such pain. I have considered this in detail when addressing the issue of general damages. There is some regularity in Ayla’s most painful spasms. They occur after school and at weekends more often than otherwise. However, there is also an unpredictable element to her pains, which may start in the morning without warning, and occurs quite often at night.

Ayla would, in London, have access to a hydrotherapy pool at school, twice a week. This was the evidence of Mrs Ellison. There is also a pool at Teddington to which access can be gained by appointment. Access to the school pool and the Teddington pool has to be pre-arranged, however. The evidence as to the availability of pools outside the home, if the family are settled in London, does not correspond with the pattern or frequency of Ayla’s symptoms of pain and screaming. Her pain is experienced more frequently than she would be able to have pre-arranged access to a pool at school or the Teddington pool, and its unpredictable element means that reliance on external pools would mean she would often experience pain when a booking had not been made. At night, such access would of course be impossible. It is clear, therefore, that she could not have access to a hydrotherapy pool as and when she experiences pain from spasms, if she were dependent on the facilities at school and in Teddington.

Does this matter? Or would the non-water-based measures and, or the use of a Jacuzzi bath as recommended by Mrs Clegg be enough to cope adequately with Ayla’s spasms and pain, at times when access to a pool could not be obtained? In my judgment the evidence does not support the view that the alternatives are equal in the symptomatic relief they afford to immersion in a pool which allows the whole body to be beneath the water. I do not consider that the evidence supports the view that the alternatives are substantially similar in their effect, either. Indeed, the evidence strongly suggests that none of the alternatives comes close in its effect. It seems to me that the key to this issue lies not so much in the expert opinion evidence as in the evidence of fact as to the degree of pain experienced by Ayla and the impact on that pain of water-based therapy and the alternatives.

The degree of pain I have dealt with. Measures to avoid or alleviate it which are not based on water appear to me to have only temporary and delaying effect, as Mrs Ellison said. As to bathing, this cannot achieve immersion, nor will it be possible to achieve immersion in future using an alternative bath support. I accept the evidence of Mrs Filson that immersion assists in physiotherapy. I accept that a warm bath does provide some symptomatic relief. I conclude, however, on the basis of the factual evidence, with the support of Prof Levene and Mrs Filson, that it is full immersion that makes the difference. I also conclude that the difference which immersion makes is very considerable. Mrs Ellison’s evidence of fact is central to this finding. She is not in my judgment a woman who was exaggerating, consciously or otherwise, to achieve an objective. Nor do I believe that she is misleading herself. Making all due allowances for the strain that she has been under I find her evidence reliable on this as on other issues. In reaching this conclusion I bear in mind also the corroborative factual evidence, to which I have already referred, of Mrs Ellison’s mother, Mr Ellison’s parents, Pauline Bateman, Mrs Filson and, of course, the video recordings.

It is suggested on behalf of the defendant that it is unrealistic to suppose that a hydrotherapy pool would in fact be used at night, to soothe Ayla if she wakes in pain. I do not consider that this is so. She will need and have professional night carers who have to remain awake, due to her tendency to wake frequently and in pain. If I am right to conclude that caring for Ayla in those circumstances would best be done by immersion in a home pool, then that is what her carers would be duty bound to do. Moreover, it would not only be of benefit to Ayla, it would make also make the carers’ lives easier.

It is also suggested that the use of a pool at night would be liable to be counter-productive, given the importance, stressed by Dr Pohl, of good sleep hygiene and the desirability of moving towards a more normal sleep-wake pattern. The weight of the evidence is however that Ayla is most unlikely to improve her sleep pattern, and it seems to me that her waking symptoms are so severe that relief of the pain they involve is much more likely to be of more benefit to Ayla than attempts, in all probability futile, to make her sleep patterns more regular.

For these reasons I have ultimately concluded that, in what I strongly suspect are the exceptional circumstances of this case, the cost of a hydrotherapy pool in the home is a cost that is reasonably required in order to provide the pain relief that will place Ayla, as far as possible, in the position she would have been in if she had not suffered the injuries that lead to this claim. There is in my view no reasonable alternative; no other means would provide the same or any substantially similar relief from the “agony” which Ayla suffers.

I would add that in my assessment the nature, frequency and degree of pain involved mean that the difference between the effects that provision of in-home hydrotherapy would have, and the alternatives, make the cost – though very substantial – proportionate to the need. As already noted above, I have taken account in arriving at my award of general damages of the relief from pain that the provision of an in-home hydrotherapy pool will in my judgment afford the claimant.

Reasonable house purchase price

The ideal property would be a bungalow, for obvious reasons. However, in London these are few, far between, and very expensive. The experts and the parties have therefore focused on two storey houses. They have agreed a reasonable figure for the purchase of a London home capable of adaptation to include a hydrotherapy pool at £1.6 million. To that figure must be added £135,000, to reflect the betterment that will result from the adaptation works to be carried out: see paragraph [133] below. The result is that the Roberts v Johnstone calculation falls to be carried out by reference to a capital sum of £1,735,000. The appropriate figure will be arrived at and agreed between the parties, or determined by me after the handing down of this judgment.

Given these findings, it is not necessary for me to reach a conclusion on the issue on which the parties are at odds, namely how much would reasonably be required to buy a home suitable for adaptation to Ayla’s needs, but without space to build a pool. However, my conclusion on the need for a hydrotherapy pool may be challenged, and since the issue has been the subject of full evidence and argument, I will address the question.

It is accepted by the claimant that the sum required would be lower than £1.6m. By the end of the evidence the rival figures were £1.5m (the lower end of Mr Valentine’s range, according to the joint report of the accommodation experts) and £1.35m (the upper end of the range put forward by Mr Vipond in the joint report). This difference is likely to be larger than it might appear, as Mr Valentine’s figures are based on a property search carried out by Mr Foster in January 2014, and Mr Vipond’s on his own research in June 2014. Between those dates, the experts agree, there was house price inflation of some 10%. On the other hand, Mr Foster’s search was specifically directed at properties that could accommodate a pool. He did not search for properties that could not.

In reaching a conclusion on this issue I have derived considerable help from a table prepared by Ms Vaughan Jones and Ms Hughes, listing 16 properties that might be suitable for the family, if no pool was required in the house. Two of these were derived from Mr Foster’s research, the rest from the research of Mr Vipond. Mr Vipond had based his views on examination of agents’ details. I accept the point forcefully made by Mr Valentine and, on the basis of his evidence, by Mr Machell, that Mr Vipond did not disclose this in his report. He gave only “thumbnails” of the properties in question, from which it was not possible to assess with any confidence whether they would or might be suitable for extension as required. That was a flaw, and to an extent unfair to the claimant. However, the evidence contained hyperlinks which could have been followed up. And Mr Valentine did a good job in assessing what he was provided with.

I accept also that Mr Vipond’s research covered an area well beyond that which would provide ready access to the only school identified as suitable for Ayla. Access to the school was not a criterion he adopted in selecting his area. In the end, however, I do place some weight on Mr Vipond’s research. I do so to the extent of accepting that it indicates that Mr Valentine’s figures for the cost of a property capable of extension to meet Ayla’s needs other than a pool are too high, and that today (allowing for some inflation in the past 6-8 months) an appropriate figure for the purchase of a suitable home in Kew or Richmond area which was adaptable to meet Ayla’s needs, not including a pool, would be £1.4 million.

Lift or no lift?

At the start of the trial there was a gulf between the parties’ experts as to the reasonable cost of carrying out adaptations to meet Ayla’s needs, the claimant contending for £413,000 and the defendant for £297,000. By the end of the trial this gap had narrowed very considerably. There was agreement that the costs of carrying out appropriate adaptations would amount to at least £345,000. The remaining issue is one that arises only if, as I have found, damages should be assessed on the basis that the family will move to London: should there be an additional award to reflect the cost of installing a lift to give wheelchair access to the first floor?

The costs of doing so have been calculated in detail by Mr Valentine. After discussion a figure of £51,468 was agreed, subject to a dispute about the need for Karndean hardwearing floor covering. Mr Valentine did not press this hard when cross-examined, and Mr Machell eventually conceded the point, leaving a cost of £41,145. A lift is the only way that Ayla could have access to the first floor. The question is whether that access is something to which she is entitled, applying the principles I have identified earlier in this judgment.

On behalf of the claimant it is submitted that in order to put her in as good a position as she would have been in had she not been injured, it is necessary to afford Ayla the facility to access all parts of her property. She would have that access if it had been possible for the family to live in a bungalow. It would not be equitable, says Mr Machell, if she did not because circumstances dictate the need for a two storey property. Mrs Ellison put it rather differently in her oral evidence, asking rhetorically why her daughter could not come upstairs as part of a family, to listen to a story if they were reading one at bedtime, for instance?

Ms Vaughan Jones submits that the issue is not whether Ayla has a right to participation in family life, but rather whether there is a reasonable need for her to have access to an upper floor for that purpose, and whether the cost is proportionate to the need. The case put to Mrs Ellison and relied on in closing is in substance that all Ayla’s reasonable needs can and would be fully catered for at ground floor level - which will have been adapted at great expense to fulfil those needs - with the assistance of her carers. Ayla spends and will continue to spend her time either in the family living spaces at ground floor, or in her own bedroom or therapy room. Family activity such as reading a story could as well take place downstairs as upstairs. Ms Vaughan Jones submits that the sad reality is that there is no question of Ayla feeling left out or isolated, as she does not have that level of awareness. Mr Machell counters by relying on the evidence of Mrs Ellison that Ayla’s responsiveness is massively increased over recent months.

The installation of a lift would be costly but in this context, as in others, it is not in my judgment a question of eliminating a head of damages simply because it is expensive, or even very expensive, to compensate the claimant for some aspect of what she has lost. The relevance of proportionality is in my judgment to the question of whether an identified reasonable need can be adequately catered for in another, less costly way which affords the claimant the same or a substantially similar benefit. The assessment of reasonable need must be sensitive to the facts of the case. It is in my opinion overly simplistic to talk of affording the claimant such access as the claimant would have had, without taking account of what benefits that access would have brought with it, and whether providing it now would afford the claimant the same or substantially similar benefits.

In this case, it is plain that the claimant’s cognitive impairment means that no amount of money could give her an enjoyment of family life comparable to that which she would have had if uninjured. Mrs Vaughan Jones is entitled to submit that Ayla will not be conscious of whether she is upstairs or downstairs. What can be done to meet the need for a family life is to ensure a reasonable level of physical participation in family activity, and interaction with other family members. She is capable of some response to such interaction. This means that there must be adequate facilities for such activities and interactions to take place.

I do not consider that access to the first floor of the future London home is reasonably required in order to achieve that objective for this claimant. In my judgment the vast majority of such activities and interaction would inevitably take place at ground floor level, during the daytime and the early part of the evening, in any event. Those few interactions which might take place upstairs, if Ayla had lived, uninjured, in a two-storey home, can be adapted to downstairs without significantly compromising their quality for her. The normal bed times of the other children will only coincide with Ayla’s for relatively short periods of their lives. Even when they do, family activities such as story reading together can reasonably take place in Ayla’s rooms or elsewhere at ground floor level. For these reasons I do not make any award in respect of the claim for the cost of a lift and associated first floor adaptations. I conclude that the reasonable costs of adaptation are limited to the agreed figure of £345,000.

The adaptations for which that sum provides will increase the value of the house to an extent. That increase in value, or betterment, needs to be deducted from the cost of the adaptation works, but added to the purchase costs for the purposes of the Roberts v Johnstone calculation: see Almond v Leeds Western Health Authority [1990] 1 Med LR 370, 373. As already noted, the betterment element is agreed at £135,000. That is a figure that does not depend on my findings about the lift. Those findings mean the agreed figure of £345,000 for adaptations stands. That and the agreed figure for betterment mean that my total award in respect of the cost of adaptations is £210,000.

Deductions for accommodation costs saved.

A claimant who is compensated for a head of loss must give credit for expenses of the same kind that would have been but will not now be incurred. This clearly requires that some deduction be made for the accommodation costs an uninjured Ayla would have incurred. That is uncontroversial. I shall return to the figures. What is controversial is the defendant’s contention that there should be a deduction from the capital sum that forms the basis of the Roberts v Johnstone calculation, to reflect the fact that Mr and Mrs Ellison will be living in Ayla’s new home.

It is suggested that by living in a London home during Ayla’s lifetime at the expense of the defendant the parents will save accommodation costs which they would otherwise have incurred, or make gains they would otherwise not have made. These, it is suggested, should be credited in the damages calculation. This issue has been variously labelled by the parties, and presented in several different ways. On analysis, however, it has two aspects.

I take the issue of principle first, and before turning to authority I address it as a matter of principle. The purpose of damages in a clinical negligence or other personal injury action is as stated above: to provide full compensation to the victim, restoring her to the position she would have occupied. Others may, however, benefit from the compensation provided, and the items or facilities which this makes available to the claimant. In an action brought by a child those who gain in this way may include not only the parents, but also siblings, or other relatives, such as grandparents. For simplicity, I shall concentrate on parents. They may benefit in the form of different and less expensive or better accommodation, or free transport in a vehicle provided out of damages, or in other ways. However if, in an action brought by a child claimant, parents gain such a benefit, the benefit will normally be necessarily, and merely, incidental to the compensation of the claimant.

Moreover, the gain to the parents will not normally be reflected in any reduction in the needs or losses of the claimant. To reduce the damages awarded to the child, on account of the parents’ gain, would lead to under-compensation, unless there is a principled basis on which the parents can reasonably be expected to make up the difference, and to place the child in the same position as she would occupy if compensated by the defendant for the full cost of the given item or facility.

There could be such a principled basis, if the circumstances were such that it was reasonable to expect the child - through her representatives - and the parents to strike a bargain, by which the child’s losses would be mitigated by means of payment in cash or in kind from the parents, in return for any incidental benefit they obtain. Failure to mitigate loss was the basis on which this aspect of the defendant’s case was initially advanced, as I understood it. The court cannot force parties to enter into rental or similar arrangements, however. If a hypothetical rent was deducted from damages but the parents chose not to pay rent, the child would be under-compensated. It is possible to envisage other mechanisms by which this problem could be avoided. One would be to set off the value of the incidental benefit to the parents of rent-free accommodation against the child’s liability to pay for the gratuitous care they have provided. But that would only be available where a gratuitous care payment was to be made, which is not always the case. And it may be that it is only one parent is due such a payment, though both get the free accommodation.

Further, and in any event, the circumstances in which it will be reasonable to expect any bargain of the kind I have outlined are likely to be very rarely encountered in practice. The child’s injuries will usually have had a severely harmful impact on the lives of its parents. This is likely to outweigh any incidental benefit gained by them from the child’s compensation. For reasons of policy the parents, as secondary victims, cannot claim compensation for the impact on them. It does not seem to me to follow that the impact must be left out of account when considering whether it would be reasonable to expect them to agree to pay for incidental advantages that accrue to them from compensation paid to the child.

I turn to the authorities, which in my judgment are, with the possible exception of one first instance decision, consistent with the approach I have indicated. The starting point is the basic principles set out by Orr LJ in George v Pinnock [1973] 1 WLR 118, 124-5. The claimant cannot recover the capital cost of acquiring new premises, because the claimant still has the capital in the form of the new premises. It is the additional annual cost during the claimant’s lifetime that is recoverable. The court held that “… the plaintiff has been involved in greater annual expenses of accommodation than she would have incurred if the accident had not happened. … The plaintiff is … entitled to be compensated to the extent that [the] loss of income [from the capital spent on the new home] or notional outlay by way of mortgage interest exceeds what the cost of her accommodation would have been but for the accident.” Ms Vaughan Jones emphasises that it is only in respect of additional costs that a claimant can recover compensation. Also to be noted, however, is that the comparison which Orr LJ draws is between the expenses and costs to the plaintiff.

In Roberts v Johnstone the child plaintiff’s adoptive parents had lived in a cottage quite unsuitable for the needs of the child. The injuries to the child meant they all had to move to a bungalow, suitably converted. The claim made on behalf of the child at trial was for £68,500 representing the purchase price of a new bungalow and the cost of the necessary conversions, less the value of the old cottage. The judge awarded £28,800 for “increased charges”, relying on George v Pinnock. On appeal, the plaintiff sought to recover interest for the plaintiff’s lifetime on the difference between the purchase price of the new home and the sale price of the cottage. The interest claimed was 7% per annum, being a notional mortgage interest rate. Since the appropriate multiplier was 16, the resulting sum would be more than the capital required to bridge the difference.

The main issue for the Court of Appeal was whether that was justifiable. The court held that it was wrong for the plaintiff to recover more than the difference in capital costs, and wrong in principle to apply a mortgage interest rate. The appropriate rate was held to be 2% being, at that time, a reasonable tax-free yield on a risk-free investment (the current discount rate is 2.5%). The court also addressed, at 893, the issue of betterment. What the court did not address was whether in principle it had been rightly conceded on the plaintiff’s behalf that credit had to be given for the proceeds of sale of the parents’ cottage. Although, as Ms Vaughan Jones points out, the award arrived at by the Court of Appeal in substitution for that of the judge involved such credit, this had been conceded throughout by the plaintiff and was not in issue before either court. Nor did the Court of Appeal make any observations on the topic. I do not consider that Roberts v Johnstone represents authority in support of the defendant’s case.

The issue has been addressed in four first instance authorities that were cited to me. In three, the court has concluded that the claimant should not have to give credit for any savings or gains that will accrue to the claimant’s parents as a result of the court’s decision; in one, it has been held that credit should be given. That one case is a decision of HHJ MacDuff, as he then was, in Lewis v Royal Shrewsbury Hospital NHS Trust (29 January 2007, unreported). The most recent decision is that of Swift J in Whiten, in which she considered Lewis and the other two cases, namely M (A Child) v Leeds Health Authority [2002] PIQR Q4 (Sullivan J), and Iqbal v Whipps Cross University Hospital NHS Trust [2006] EWHC 3111 (QB) (Sir Rodger Bell). It is convenient to review the cases in chronological order.

In M’s case, the claimant, her parents and her brother had lived in a detached house before the negligence. They all moved into an adapted bungalow afterwards. The defendant advanced the same argument as the defendant in the present case, seeking a deduction from damages equal to the value during the claimant’s lifetime of the accommodation afforded to the parents. The argument was rejected by Sullivan J, who founded his decision on “the basic proposition, which is that this is a compensation claim made on behalf of M”: [47].

In Iqbal the previous accommodation was rented, with the rent paid by Housing Benefit because the father was unemployed. The family moved into a new, adapted bungalow purchased from the claimant’s damages. The defendant submitted that the claimant should give credit for rent which her parents could and should pay to her, noting that they would receive Housing Benefit if they did. I gratefully adopt the summary of the decision set out in Whiten at [463].

“The judge in Iqbal, Sir Rodger Bell, considered that the defendant’s argument failed for practical reasons in the particular circumstances of that case. The claimant’s parents were not actually paying rent. The arrangement suggested by the defendant’s counsel would be cumbersome and would merely result in money being transferred from one public body to another. The claim was that of the claimant himself so that the deduction of notional rent could be justified only by finding that the failure by the claimant (through his receiver or the Court of Protection) to demand rent from his parents constituted an unreasonable failure to take steps to mitigate his loss. It could not be characterised as such. He went on to make a wider point:

“More generally, it is not just to deprive parents of the incidental benefit of living rent free, when there are so many sacrifices on their part, most obviously the detriment to their quality of life, which must go uncompensated under our laws of tort, however high the award in their child’s favour””.

This decision therefore included two points that feature in my analysis above. It identified the issue as being whether a failure to demand rent from the parents could be characterised as a failure by the claimant to mitigate; and it involved the more general question of whether it would be just to the parents to require them to pay rent. It will be apparent that I see these two points as closely linked. As I see it, if the parents have sustained uncompensatable losses that will be a reason why it will not be possible to characterise their child’s failure to demand that they pay her rent as unreasonable.

In Lewis the parents had moved to the specially adapted accommodation purchased by the claimant. They intended to rent out their previous home. The claimant initially conceded that this rent should be brought into account in the Roberts v Johnstone calculation, but had switched tack by the time of trial, maintaining this was wrong in principle. HHJ MacDuff dealt with the issue at [167]-[171]. He appears to have considered that Roberts v Johnstone was binding authority in support of giving credit. At [169], having referred to the in support of giving credit. At [169], having referred to the Roberts v Johnstone formula he said “A part of that formula is the recognition that the sale of the previous family home has to be brought into account. … Here of course, there is a saving in respect of the former home at the Hawthorns and, at first blush, if the Roberts v Johnstone principles are applied, credit must be given for the value of the former home …”

Counsel for the claimant had submitted “with diffidence and no great enthusiasm, albeit with confidence” that this was wrong, because the benefit accrued to the parents and not the child. The Judge concluded that the correct answer was to be found in Kemp & Kemp on damages, the current edition of which observed that “Where the parents rent out their old home it could be argued that some allowance should be made for the benefit of the income they receive. If on the facts this was considered appropriate then perhaps the best way to reflect this would be by adjusting the amount recovered for gratuitous care.” HHJ MacDuff concluded that since the parents now lived in the daughter’s new home and received rent for the old one it was right that this should in effect be taken as part payment for the care and attendance they had provided. He regarded this as “like for like”, stating that “Putting that another way, the parents should take the value of their accommodation as part payment for their ‘work’ as carers. The value of their accommodation should be assessed as being equal to the rent they receive from the Hawthorns.”

In Whiten Swift J regarded Lewis as a case decided on its facts: see [460]. Bearing in mind the wording of the citation from Kemp & Kemp, I am inclined to think that is a correct analysis. I note, however, that the Judge’s starting point was that Roberts v Johnstone principles required a deduction. Both Sullivan J in M, and Sir Rodger Bell in Iqbal had considered Roberts v Johnstone. Neither considered himself bound by that decision to allow credit against damages of the kind sought by the defendants in the cases before them. Sir Rodger Bell observed that the defendant’s point was not argued in Roberts v Johnstone. In Whiten Swift J took the same view. She observed at [465] that “it appears that the claimant’s advisers in that case had invited the court to make the deduction, so that the issue was not argued before the lower court or the Court of Appeal. The fact that neither court queried the concession made by the claimant does not necessarily imply that they ‘approved’ it.” I agree with that analysis. I note also that whilst M was cited to HHJ MacDuff, Iqbal is not referred to, and the Judge does not appear to have analysed the situation in terms of mitigation of the claimant’s loss. Nor is there any indication that it was argued that the parents had suffered uncompensated losses which ought to be brought into account.

In Whiten the factual situation was again that the parents would be moving into a new property, this being purchased outright by the claimant using his damages. It was argued for the defendant that during the period for which the claimant, if uninjured, could have been expected to live at home with his parents, there should be deducted from the capital value of the new property a sum representing the value of the property that the family would have had in any event. Otherwise, the parents and brothers would be living free of charge in the claimant’s home at the expense of the defendant. Having considered Roberts v Johnstone, M, Iqbal and Lewis, Swift J rejected this submission. Her reasoning appears between [465] and [469], and repays full reading. The following are what seem to me to be the key features.

“465.

…… I agree with the judges in the cases of M and Iqbal that the problem with that solution is that the claim is brought on behalf of the claimant, not his parents. I consider that it is wrong in principle for the value of a property that would have been owned by the claimant’s parents to be deducted from the value of the new property to be owned by him. To make such a deduction would also be unfair to the claimant. It would inevitably result in him being inadequately compensated for the loss of investment income on the capital value of the new property. It is not the claimant who has been relieved of the expense of purchasing a home; it is his parents. Yet the loss would fall on him. ….

466.

One way of achieving fairness for both claimants and defendants might be to require parents to pay a claimant an appropriate rent for occupying the accommodation and for the sum paid by way of rent to be deducted from the claim for his annual loss of investment income on the capital value of the new property. In many cases, the parents would be able to afford to pay some rent, even if it fell short of the market rent for the property. However, this would not be possible in all cases since some parents (like those in Iqbal) would lack the financial resources to pay rent. There would moreover be a risk that the parents’ ability to pay rent might change over time. In that event, a claimant would end up out of pocket if, at trial, a deduction had been made from the annual claim for investment income on the capital value of his new property in order to take account of rent which was not in fact paid.

467 … As the judge in Iqbal observed, if there is no agreement that rent should be paid, the only way that a court can make a deduction of the notional amount of the rent from the claimant’s damages is to characterise the failure on the part of the claimant to demand rent as a failure to mitigate his loss. The ordinary principles of mitigation of loss require the defendant to prove the failure by establishing that the claimant has unreasonably failed to take certain mitigating steps.”

Swift J went on at 468 and 469 to identify factors that existed in Whiten itself that affected the parents. Their life choices would be restricted, they would find it hard or impossible to move again. “In these and many other ways, their quality of life in the future will be adversely affected.” The judge considered that these factors would be present in the vast majority if not all cases of this kind, where the family has to move to alternative, disability-related accommodation. She concluded:

“The context and circumstances of those cases will not, in my view, be appropriate for a finding of a failure to mitigate loss to be made. The view expressed by the judge in Iqbal - to the effect that it is not just to deprive parents of the incidental benefit of living rent free having regard to the uncompensated effects of the defendant’s negligence on them - can perhaps be regarded as another way of expressing the same conclusion.”

I should only depart from Swift J’s decision if I am persuaded that it is wrong. I am not so persuaded. On the contrary, I agree with Swift J’s conclusions, and her reasoning is entirely consistent with my own. It involves a recognition that it is just to look holistically at the comparative situations of the parents, as they are and as they would have been, bringing into the reckoning what they have lost as well as what they may gain. In some cases, some of what the parents lose may be capable of calculation. The present case may in principle be such a case, given the striking difference between the financial consequences of the futures the family would have had, and will now have. Swift J focused, however, on losses that are not easy to measure in money. I share her view that this does not mean that they ought not to be acknowledged.

I turn to the issue of fact. I am wholly convinced by the evidence of Mr and Mrs Ellison that they planned to move abroad with Chevron. I am also persuaded that they would have done so in 2008, when Ayla was 1 year old, and that they would inevitably have stayed abroad for as long as they had a child in primary education. Mr Ellison clearly relished the idea of the lifestyle available, which he had seen at first hand. Mrs Ellison fairly acknowledged that she could not say whether she would have found life abroad in a company compound suited her, and that she might not have liked it. She also said, however, that she would have followed her husband “to a desert island” if necessary, as he is the most important person in her life.

Mrs Ellison is loyal, and she is not a quitter. I am convinced she would have stuck to life in the 3 year rotation followed by Chevron for at least 12 years. The chances of the family returning to the UK before that seem to me negligible. Whilst abroad there is in my judgment a 60% chance that Mrs Ellison would have chosen to work and would have been able to work as a midwife. She told me, and I accept, that there is strong demand for midwifery in the countries that are candidates for places this family would have lived.

I do not see any real prospect that the family would have abandoned the 3 year rotation in potentially challenging foreign countries before their youngest child was at secondary age. They probably would have had a second child sooner than they did, if Ayla had not been injured. So it is a reasonable assumption that their second child would have reached 11 in or about 2020. At that point, with children of 13 and 11, they would have faced a key decision on future education. One option would have been to stay with Chevron and move to the USA, Australia or one of the other countries discussed above, with high quality secondary education. Another would have been a return to the UK. That would have meant working in Aberdeen and living nearby, if Mr Ellison was to stay with Chevron, or a company move.

It is possible that the couple would have chosen a return to the UK at that time, but I think this would only have appeared to them to make sense if it had involved a move to a new company offering a significant promotion compared with what could be achieved with Chevron, and benefits at least the equal. The circumstances of the couple’s parents and other UK-based relatives might well have played a part, at this stage. On balance, however, I regard a move back to the UK as improbable. In my judgment, the chances are about 80% that the couple would have chosen to continue an expatriate lifestyle, educating their children abroad throughout secondary and into tertiary education. There is a 20% chance that they would have returned to the UK in or around 2020. If they had not moved back then, the chances are high that they would have remained abroad until retirement, as Mr Ellison said they would. There is a 20% chance that they would have returned when or soon after their youngest child left university, which would have been in about 2030.

Pending a move back to the UK, there is a real chance the couple would during Ayla’s lifetime have purchased UK property, to hedge against property price inflation ahead of a possible return at retirement or sooner. But that would have been a form of investment, probably rented out meanwhile. It would not represent alternative accommodation which should fall into the damages calculation, on any view.

I would accept the defendant’s case that if the couple had returned to live in the UK during what will now be Ayla’s lifetime, they would have purchased accommodation worth on average over £350,000. If that is what would have happened, then being accommodated in Ayla’s house instead without being charged for it will represent, in financial terms, a saving. However, my other findings mean that, as a matter of fact, the chances that living rent-free in Ayla’s home for her lifetime would financially benefit the parents are slender, there would be no benefit before 2020 at the earliest. The value to the parents would not be large. I next ask myself whether it would be reasonable to expect Ayla and her parents to enter into an agreement by which they, to the extent of this value, compensated her for the provision to them of rent-free accommodation, thereby reducing the damages payable by the defendant. I do not believe that would be reasonable.

There is in this case a mechanism by which set-off could be achieved: there is agreement to compensate for gratuitous care, the sum conceded in the Counter-Schedule being just short of £131,000. However, given my findings of fact about what would have happened if Ayla had not been injured, the uncompensated sacrifices this couple have made and will continue to make are clearly very substantial indeed. They are not by any means limited to, but they do include in my judgment a considerable financial loss. This seems clear, if the position they would have occupied as expatriates with Mr Ellison as a Chevron employee is compared with their present position, and the position that is likely to obtain over the next 22 years. The lost value of the Chevron final salary pension, if nothing else, can easily be recognised as very substantial. The sum for which the defendant claims credit is equivalent at 2.5% to approximately £9,000 per annum. It is not necessary in my judgment to calculate the losses to the parents. It is sufficient to conclude as I do that their value comfortably exceeds the value to the parents of free accommodation in Ayla’s London home during such part of her lifetime as they might otherwise have been spending on a home of their own.

Returning to Ayla herself, nobody suggests that she would have been in a position to buy a property in her 20s. The average age of a first-time buyer is now about 31, according to Mr Vipond’s report. The defendant maintains, however, that it is reasonable to assume that from the age of 22 she would have been living independently of her parents, in rented accommodation, paying £5,000 a year. Mr Machell accepts this, and I am sure he is right to do so.

We are here envisaging a 22 year-old Ayla who has been brought up largely or entirely abroad, as the child of expatriates in the oil business in comfortable accommodation paid for by the employing company, and who is earning a net salary of £21,805 per annum. I am confident Mr Machell was right to submit that she would share, to save costs. However, even sharing it is highly improbable she would have found accommodation suiting both her means and expectations at less than £5,000 a year. The appropriate multiplier is said by the defendant to be in the region of 4.96 but is not yet agreed. I am asked to give the parties an opportunity to agree it, failing which I shall rule on the issue.

Additional running costs

The total annual running costs of a London house adapted to meet Ayla’s needs have been agreed at £12,389, excluding the costs of running a hydrotherapy pool. Ayla is entitled only to the additional costs incurred as a result of her injuries. Hence, the defendant seeks a deduction to reflect living costs, including heating, electricity, water, council tax, and insurance, that would have been incurred in any event.

A deduction is sought to reflect the costs the parents would have incurred in running the home which they would have occupied if their child had not been injured. My factual findings above lead to the conclusion that there might have been some such costs, though the chances are relatively slender and the period some way off and relatively short. As a matter of principle, however, although there seems to be no authority on the issue, it must follow from my conclusions on the deductibility of accommodation costs that the issue is whether it would be unreasonable for Ayla not to mitigate by demanding a contribution from her parents.

The annual costs the parents would have incurred if they had bought and occupied a home in the UK are put by the defendant at £5,600, using with appropriate adjustments Mr Valentine’s figures for the costs of a three-bed roomed house in Kew/Richmond worth £500,000. I accept that is a reasonable estimate. However, I do not consider that on the facts of the present case it would be right to treat a failure by Ayla to require such a contribution from the parents as an unreasonable failure to mitigate loss.

Ms Vaughan Jones’ alternative submission is that there should be a deduction to reflect the costs that Ayla would have incurred as a flat-sharer in her 20s. This was not contested, and I agree this is an appropriate deduction. I conclude that a figure can properly be arrived at by taking Mr Valentine’s figures for the costs of sharing a two-bedroom dwelling in Kew or Richmond, excluding the costs of relocation and maintenance. Those costs are £2,127 a year, which will be subject to the same multiplier as the figure for Ayla’s assumed annual rent.

I will make the following additional awards in sums which have been agreed as not depending on my conclusions on the disputed issues, and which I approve:

As noted above, the reasonable costs of acquiring, installing, maintaining and replacing such a pool are expected to be the subject of agreement, failing which I shall have to assess them after this judgment has been handed down.

Inevitably, there are substantial additional costs involved in taking Ayla on holiday, compared to those that would have been incurred if she were not disabled. It is agreed that there should be an award to reflect the additional costs of taking her on holiday with the rest of the family, using special accommodation, and accompanied by three carers, up to the age of 19. The appropriate annual figure for those costs has been agreed at £10,000. The area of dispute is whether my award should include provision to compensate for continuing additional annual holiday costs after Ayla reaches 19. The claimant’s case is that Ayla is part of the family and will always accompany them, so long as she lives. The defendant’s case is that she would derive no meaningful benefit from doing so.

Mrs Ellison’s first witness statement says “We would still like to be able to go abroad as a family with Ayla as she loves the sunshine and the warm weather relaxes her muscles.” She acknowledges in that statement, however, the considerable difficulties involved in taking Ayla on holiday. She recounts what, in oral evidence, clearly emerged as a disastrous attempt to holiday with Ayla in Paris. Ayla was screaming on the train, and for a lot of the time that the family was in Paris. The result was that a great deal of the time had to be spent in the hotel. Mrs Ellison’s statement accepts also that plane travel would be very difficult given Ayla’s size, the consequent difficulties of handling, and the limitations of aircraft seating.

In oral evidence Mrs Ellison acknowledged that whilst the family had taken Ayla with them a few times when she was young, they had not done so since she got bigger, requiring a team of carers. Winter holidays would be out of the question, due to her vulnerability to cold. Nonetheless, she was “sure” that Ayla would be taken on holiday with the rest of the family if the funds and support were available. It was put to her that holidays don’t really work for Ayla: they are complicated and stressful, because of the inevitable disruption involved in travel, and prolonged inactivity en route. Mrs Ellison responded that “we would rather lift her than leave her behind” and said that Ayla enjoys the sunshine. She made clear that she and her husband intended to take Ayla with the family.

My focus must be on Ayla’s losses, and what is required fairly and justly to compensate for those. I ask myself what Ayla’s position would have been at and after the age of 19 had she not been injured, so far as holidays are concerned. The overwhelming likelihood is that she would have holidayed independently of her parents and sibling(s), alone or more likely with friends or with a partner. For the early years of this period she would probably have done so at her parents’ expense, lacking independent means. She would have derived benefits for which there can be no substitute, such as the companionship of friends, and learning about previously unknown places and cultures, whether in the UK or abroad. She may have gained health benefits from sunshine and outdoor life. These things would have brought happiness. What can and should be done to compensate for the loss of those benefits of adulthood, given her present condition?

I accept the sincerity of Mrs Ellison’s evidence, but as with the issue of the lift I do not believe that the requirement to put Ayla in the position she would have been in should be taken too literally, as enabling her to travel to such places as she would have gone uninjured. It is necessary to examine more closely the substance of the actual losses, and whether the suggested expenditure would truly compensate for those losses.

Holidays with the family in her actual condition would not afford Ayla any substitute for the intellectual experiences she would have had as an adult holidaying independently. Nor would the change of location have any material impact on her emotional well-being. Mrs Ellison said: “I don't think it matters that much to Ayla, like, where she is. If she is at home with the right people that know how to deal with her, then she is happy, but then like, if we take her abroad with the right people that knows what to do with her, then she is happy.” Mrs Ellison’s point was that Ayla could be as happy on holiday as at home, if suitably cared for; but the opposite is also true.

This leaves the physical enjoyment Ayla derives from experiencing the sunshine. That is not disputed, but there is no medical evidence to support a reasonable need for sunshine specifically as a means of giving Ayla pleasure and enjoyment. It is in my judgment something that can be substituted for in other ways, a principal means being hydrotherapy. Further, there is a real risk that travel would exacerbate unhappiness in some respects and for some of the time. Whilst I am quite satisfied that the family and carers would do their utmost to moderate any discomfort that Ayla would encounter in the course of travel I do consider that additional moving and handling, are inevitable and that consequent distress could not be avoided either.

For these reasons I do not consider that compensation for the cost of holidays after the age of 19 is a head of damages to which Ayla is entitled. The fair and just compensation for the loss of the benefits that Ayla would have obtained from holidays in adulthood is, it seems to me, to be found in the award of general damages for loss of amenity, and the damages I am awarding to afford her the facility of a hydrotherapy pool in her home.

That Ayla requires and will continue to require a wheelchair accessible vehicle is beyond doubt. On the advice of the transport consultant William Kiely the family bought, in June 2013, a VW Caravelle Executive 180ps 2.0L BiTDi DSG, suitably adapted. The purchase price of the Caravelle, as adapted and with various optional extras, was £51,543.89, including £39,344.33 for the vehicle and £11,504 for adaptations. Those incurred capital costs have been reflected in the agreed special damages figure.

However, such a vehicle costs more to run than others. The additional cost that will be incurred in future has been agreed at £2,500 a year. Further, the Caravelle will of course need replacement, as will its successors over Ayla’s lifetime. Ayla is entitled to compensation for the reasonable costs of continuing to have a wheelchair accessible vehicle available to her for life. The reasonable costs of replacement are in dispute.

It is agreed that the Caravelle is a suitable vehicle. The costs of replacement depend on three factors: the frequency of replacement, the residual value of the vehicle being replaced, and the cost of buying and adapting the replacement. It has been agreed that the appropriate replacement interval is 5 years, leading to a multiplier of 3.09. It is also agreed that the residual value of each vehicle at the time of replacement should be taken as 33% of its initial cost, with the cost of adaptation being entirely written off. The sole issue is as to the costs of the vehicle and conversion.

The Schedule of Loss claims £38,658 but even based on the purchase cost in June 2013 the figure should be lower, points out Ms Vaughan Jones. Allowing for 67% of the vehicle cost and the whole of the costs of conversion the sum should be £37,891. The defendant’s case is however that the price paid via Mr Keily is “top whack”. Its case in support of a lower figure relies essentially on evidence from its occupational therapy expert Mrs Tuckfield that a vehicle can be acquired for £31,000 and converted for £9,000, and a concession made in cross-examination by the claimant’s expert Ms Ho.

Mrs Tuckfield’s written report implied that her figures were based on what Ms Ho had previously said in other reports in other cases. She said in oral evidence, however, that she had based them on information gained from GM Coachwork, a vehicle converter and from case managers in her firm, who had obtained quotes for other clients. This took Mr Machell by surprise. In cross-examination he tested whether Ms Tuckfield could identify any items listed on the invoice of June 2013 which were unreasonable. In substance her answer was no, except for the leather seats; the basis for saying the cost was excessive was her knowledge that others charged less. Mr Machell fairly pointed out in his closing submissions that figures produced on this basis without supporting material did not allow any proper scrutiny or testing.

Mrs Ho’s evidence was that she advised clients on purchasing vehicles and this would often be a Caravelle. She disputed that the cost with a tail lift would usually be in the order of £42,000. She said “They would be in the higher 40s, probably about £46[000] but on this particular occasion there was a transport expert … and I left it to him.” This was a reference to Mr Keily, a witness of fact. In his oral evidence he accepted that it was possible to buy a Caravelle for £31,000 and to adapt it for £9,000 but said “it’s like buying a house and then furnishing it. So the starting price is different for different models, and it certainly is far too low for the specification that’s required for Ayla.” He would not accept that the appropriate conversions, including a tail lift – by far the most expensive adaptation, at nearly £9,000 in itself – could be fitted for £9,000.

I can see no basis on which to question the reasonableness of the sum actually spent on adaptation of this vehicle. There was some cross-examination of Mrs Ellison about optional extras but her answers were generally persuasive. Apart from the leather seating I see nothing that is not reasonably required for Ayla (Mrs Tuckfield pointed out that Ayla would be in her wheelchair, not using the seats; the cost is £1,625). However, Mr Keily’s evidence did not explain the choice of an Executive fuel injected model and in view of the evidence of Mrs Tuckfield and, more significantly, Mrs Ho, I consider it likely that less expensive models are commonly purchased for adaptation in similar circumstances and that, from the perspective of Ayla’s needs, that could reasonably have been done in this case.

Bearing in mind the totality of the evidence on this issue I consider that future replacement costs should be assessed on the basis of a vehicle purchase price of £35,000, to which the adaptation costs of £11,504 should be added. It is conceded on behalf of Ayla that there must be credit for the cost she would have incurred in any event as an adult, in buying a suitable car or cars. The agreed capital deduction is £8,505.

In summary, my conclusions on the disputed issues are as follows: