LAT v East Somerset NHS Trust (Now Yeovil District Hospital NHS Foundation Trust)

This is an application on behalf of the claimant under CPR 25.7 for an interim payment in respect of his claim for damages against the defendant arising out of the defendant’s negligent failure properly to treat him during the neonatal period and in particular in failing to treat his hypoglycaemia appropriately.

The claimant was born on 31^st August 2002 so that he is now aged 13 years. The proceedings were served on the defendant in June 2013 and liability was admitted in full on 14^th July, 2014. On 10^th October 2014 judgment was entered for the claimant for damages to be assessed and an interim payment in the sum of £250,000 was ordered. That is the only interim payment which the claimant has received to date.

On 16^th April 2015, at a costs case management hearing, various directions were given in relation to the assessment of damages including directions for the service of experts’ reports and a Schedule of Loss. Subsequently a trial date in February 2017 was allocated for the assessment of damages. The claimant has served a number of experts’ reports and in April 2016 served a preliminary Schedule of Loss and Damages containing losses calculated up to 28^th February 2017 and future losses thereafter.

As a result of the defendant’s negligence, the claimant has suffered serious neurological damage resulting in spastic diplegic cerebral palsy, learning difficulties, epilepsy, visual problems and behavioural problems. Details of his condition and prognosis, including life expectancy, are contained in a medical report dated December 2015 from Dr. Richard Newton, consultant in child and adolescent neurology, instructed on behalf of the claimant.

At the time of Dr. Newton’s report, the claimant had been assessed as having a reading age of 6 years with a spelling age of 5 to 6 years. Although he can count one for one up to about 30, he does not have any sense of monetary value. A neuropsychological assessment by Dr. Warner-Rogers in December 2015 showed some skills in the average range but his processing speed and visual perceptive abilities are significantly below average for his age. He also has difficulties with problem solving, attentional control and flexibility in thinking which lead to impaired educational performance. He had been in mainstream primary school, but his transition to a mainstream secondary school was a very unhappy experience for him and he now attends Avalon Special Needs School in Street, where he is doing well.

Dr. Newton said that the claimant communicates with speech which is readily understood and his concentration is good if engaged in something he really enjoys. He has significant motor impairment. He walks confidently on a flat surface using a widely spaced gait but even on a flat surface, especially if it becomes uneven, he is very unstable. He uses a frame walker for stability and requires a wheelchair for longer distances. He ascends stairs one step at a time and descends on his bottom. Whilst he is able to undertake some everyday tasks, he regularly needs help or supervision, for example with dressing, washing and cleaning his teeth. He occasionally has stress incontinence. From the age of 6 years he has suffered from epilepsy which is treated with drugs which have largely controlled his clonic seizures, although more recently he has regularly been having paroxysmal episodes which may represent seizures.

Dr. Newton concluded that the claimant’s motor impairment involves extreme clumsiness so that he requires help with daily living skills. His motor impairments are seen in association with intellectual impairment such that it is highly likely he will need a level of supervision for managing his own affairs and daily living skills for the rest of his life. His level of motor disability should not increase provided he has continuing therapy throughout his life. Overall, Dr. Newton was of the view that the claimant is probably functioning in the range of children towards the upper end of severe learning difficulties and the lower end of those with moderate learning difficulties. If he is offered suitable opportunity and encouragement, he should continue to learn steadily within this functional range. So far as the claimant’s life expectancy is concerned, Dr. Newton, by reference to various published studies and papers, was of the view that it will be to the age of 78 years.

The claimant’s mother and father separated some eighteen months after the claimant’s birth, but remain on good terms. Thus, the majority of the claimant’s care has been undertaken by his mother, although his father has made a significant contribution to his care over the years and sees the claimant very regularly, now having him for an overnight stay once a week.

I have read a lengthy statement from the claimant’s mother and a shorter statement from his father. The mother’s statement gives a very good indication of the claimant’s difficulties and the care and supervision which he has required over the years. One serious concern which has arisen in the last couple of years is the claimant’s behavioural problems. He has temper tantrums and has been aggressive towards his parents and on occasion has lashed out at them or put his hands around his mother’s neck. This behaviour largely occurs at home and he is reasonably well behaved at school. There are obvious concerns about this behaviour and Dr. Warner-Rogers and Dr. Newton have advised that the claimant should have the input and support of a psychologist to seek to improve his behaviour at home. Dr. Newton has stated that this behavioural problem, as the claimant moves through adolescence and becomes bigger, presents the potential that he will require two carers and possibly more to avoid harm both to himself and to others. As it was considered that the intervention of a psychologist should be in place for the next two to three years, Dr. Newton strongly advised that final decisions on the claimant’s future level of care and support should be delayed until the issue of the claimant’s behavioural problems is resolved. Clearly, whether or not the claimant will require one carer, or two or more carers, on a 24 hour basis in the future will have a very large impact on the cost of future care and case management. On the basis of the costings of Mrs. Maggie Sargent, the claimant’s care expert, the difference between the capitalised cost of one carer and two carers for life, using a life multiplier of 28.7 (based on the life expectancy to age 78) is some £2.5 million.

By reason of this issue, the parties have agreed that the assessment of damages hearing in February 2017 should be vacated and the claim stayed until the end of 2018, by which time the position as to the claimant’s behavioural problems should be clearer. Accordingly, at the hearing before me on 23^rd June 2016, I so ordered and directed that there should be a further costs case management hearing in March 2019, and I made other consequential orders.

The claimant’s application for a further interim payment, which I now have to consider, seeks a payment of £1.75 million on top of the £250,000 interim payment already made. The application is based on the claims set out in the claimant’s schedule served in April 2016, but on the basis that the assessment of damages will now not take place until February 2021 by reason of the stay on the proceedings referred to above. The main reasons for this application for a further interim payment are that the claimant and his mother are living in arguably unsuitable rented accommodation and need to purchase and adapt a suitable permanent home, and that a care regime needs to be implemented, particularly because of the claimant’s increasing behavioural problems.

The defendant does not oppose the ordering of a further interim payment, and indeed has offered to make such payment in the sum of £1 million, but submits that the Court should not order any payment in excess of that amount.

In support of the application, the claimant relies upon the witness statement of Paul Rumley, his solicitor, and a substantial bundle of documents containing the statements of the claimant’s parents, experts’ reports, including those to which I have already referred, and the Schedule of Losses. The defendant has not yet served any experts’ reports. However, exhibited to the statement of the associate at the defendant’s solicitors, Ms. Garrett, opposing this application, is a report from the defendant’s care expert, Stephanie Cotterell, dated June 2016 (redacted in relation to future costs) which does refer to the views and findings of some of the defendant’s experts. Ms. Garrett also exhibits a letter dated 17^th June 2016 from Stephen Fisher, an accommodation expert, and a letter dated 21^st June 2016 from Dr. Jane Hood, an educational psychologist. I was greatly assisted at the hearing by written and oral submissions from Leading Counsel for the claimant and for the defendant.

The claimant clearly satisfies one of the conditions entitling him to an interim payment under CPR 25.7 in that judgment has been entered for damages to be assessed. However, under 25.7(4) “the Court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment”.

For the purposes of this application, the parties are agreed that it is very likely indeed that the trial judge will make a periodical payment order (PPO) in relation to a number of the future loss claims. Thus, as confirmed by the Court of Appeal in Eeles -v- Cobham Hire Services Limited [2010] 1 WLR 409, for the purposes of 25.7(4) in a case in which a PPO is made the amount of the final judgment is the actual capital sum awarded. In Eeles, the Court of Appeal set out the relevant principles which should guide the making of an order for an interim payment in such a case. In Smith -v- Bailey [2014] EWHC 2569 (QB), Popplewell, J. (at Paragraph 19) set out the following helpful summary of the principles contained in Eeles.

“(1)

CPR r25.7(4) places a cap on the maximum amount which it is open to the Court to order by way of interim payment, being no more than a reasonable proportion of the likely amount of the final judgment.

(2)

In determining the likely amount of the final judgment, the Court should make its assessment on a conservative basis; having done so, the reasonable proportion awarded may be a high proportion of that figure.

(3)

This reflects the objective of an award of an interim payment, which is to ensure that the claimant is not kept out of money to which he is entitled, whilst avoiding any risk of an overpayment.

(4)

The likely amount of a final judgment is that which will be awarded as a capital sum, not the capitalised value of a periodical payment order (PPO).

(5)

The Court must be careful not to fetter the discretion of the Trial Judge to deal with future losses by way of periodical payments rather than a capital award.

(6)

The Court must also be careful not to establish a status quo in the claimant’s way of life which might have the effect of inhibiting the Trial Judge’s freedom of decision, a danger described in Campbell -v- Mylchreest as creating “an unlevel playing field”.

(7)

Accordingly, the first stage is to make the assessment in relation to heads of loss which the Trial Judge is bound to award as a capital sum, leaving out of account heads of future loss which the Trial Judge might wish to deal with by a PPO. These are, strictly speaking: (a) General Damages for pain suffering and loss of amenity; (b) past losses (taken at the predicted date of the trial rather than the interim payment hearing); (c) interest on these sums.

(8)

For this part of the process the Court need not normally have regard to what the claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of Protection. Nevertheless, if the use to which the interim payment is to be put would or might have the effect of inhibiting the Trial Judge’s freedom of decision by creating an unlevel playing field, that remains a relevant consideration. It is not, however, a conclusive consideration: it is a factor in the discretion, and may be outweighed by the consideration that the claimant is free to spend his damages awarded at trial as he wishes, and the amount here being considered is simply payment at the earliest reasonable opportunity of damages to which the claimant is entitled: Campbell -v- Mylchreest [1999] PIQR Q17.

(9)

The Court may in addition include elements of future loss in its assessment of the likely amount of the final judgment if but only if (a) it has a high degree of confidence that the Trial Judge will award them by way of a capital sum and (b) there is a real need for the interim payment requested in advance of trial.

(10)

Accommodation costs are “usually” to be included within the assessment at Stage 1 because it is “very common indeed” for accommodation costs to be awarded as a lump sum, even including those elements which relate to future running costs.”

The guidance set out in points (1) to (8) are sometimes referred to as “Eeles Stage 1” and in the remaining points as “Eeles Stage 2”.

In my judgment, in the present case the court can have a high degree of confidence that accommodation costs will be awarded as a capital sum, as indeed is the usual approach. Thus, in Eeles Stage 1, it is appropriate to consider on a conservative basis the likely awards for general damages for pain, suffering and loss of amenity, special damages (being past losses to the date of assessment), interest on those sums and accommodation costs.

Helpfully included in Leading Counsels’ skeleton arguments were short schedules setting out their suggested figures for these heads of claim.

It is clear that the likely amount of the past losses is to be taken as at the predicted date of the assessment of damages. It is suggested on behalf of the claimant that, following the stay of the proceedings and further directions, it is unlikely that the trial will take place until February 2021 and the claimant’s pass losses claim should be taken up to that date. The defendant submits that a new trial date of February 2020 is achievable and that the losses should only be taken up to that date. Bearing in mind that the further costs case management hearing has now been set for March 2019, and the time estimate for the trial will be less than the three weeks originally given, I consider that a trial should be able to take place in early June 2020. Accordingly, I approach this application by first determining the likely capital award on a conservative basis as at that date. Miss Gumbel, Q.C. on behalf of the claimant submitted that the court should assess the appropriate figure for each head of loss and then make a 20% reduction to reflect a conservative figure as required by Eeles. That was the approach of Spencer, J. in CR -v- West Herts NHS Trust [2015] EWHC 1123 (QB) (although in respect of the general damages figure he only made a reduction of 10%). In other cases, the approach has been simply to assess a conservative figure for each head of loss rather than to apply an overall percentage reduction to the appropriate figures. I propose to adopt that approach in relation to the application in this case.

I then turn to each of the relevant heads of loss to be assessed on a conservative basis as at the beginning of June 2020.

It is accepted by the parties that the claimant’s injuries fall within the category of moderately severe brain injury in the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases. The range of damages within that category, including an uplift of 10% under the Legal Aid Sentencing and Punishment of Offenders Act, 2012, is £183,150 to £235,790. On behalf of the claimant, it is suggested that the appropriate award is £220,000. The defendant suggests an award of £200,000. In my judgment, on a conservative basis the appropriate award would be £200,000 and with interest up to 1^st June 2020 the award including interest would be £228,000.

Past losses calculated up to 28^th February 2017

The claimant claims £269,239 in respect of the value of the care provided by the claimant’s parents up to February 2017. This is based on the aggregate costs per hour including enhancements for weekend and night care for the number of hours per week of extra care provided by the parents over and above the care a baby and child would normally need, as estimated by Maggie Sargent, the claimant’s care expert. It is said on behalf of the claimant that there should be no deduction from these commercial care rates to reflect the fact that the care is provided by the parents because, inter alia, of the exceptional level of care provided by them. The defendant argues by reference to the report of its care expert, Ms. Cotterell, that the number of hours claimed is excessive and that the basic not the aggregate care rates should be used. The defendant also maintains that a deduction of one-third should be made from the commercial rates to allow for the care being provided by family members. On this basis, the defendant’s valuation of family care to February 2017 is £85,651.

In my judgment, it is reasonable to allow the aggregate rates for family care, but I consider that the hours per week claimed by the claimant may be excessive, and to give a more conservative estimate they should be reduced by 20%. This would give a total on the claimant’s figures of £215,391. I then deduct from that 25% to reflect that the care has not been provided commercially, but by the claimant’s parents, which is a common approach in such cases. That gives a net figure of £161,543.

The Claimant claims £80,481 for these losses. Included in this amount is the purchase of a Land Rover Discovery motor vehicle for just over £57,000, and the full cost of a Kuoni holiday for £13,734. The Land Rover was purchased as the vehicle can be lowered so that the claimant can get in and out of it, which he would not be able to do with an ordinary vehicle. It is also sufficiently large to accommodate his wheelchair. The defendant concedes the need for a larger vehicle, but says that the cost of the Land Rover is excessive and unwarranted. It is also said that the full cost of the holiday should not be allowed - only the extra costs due to the claimant’s disabilities. The defendant therefore suggests a figure of £30,000 for these losses. On balance, I consider in the circumstances the cost of the Land Rover is likely to be awarded, but the full cost of the holiday would not be allowed. To allow for the risk that the full cost of the Land Rover would not be awarded, and the likelihood that the full cost of the holiday would not be allowed, I reduce this claim to £60,000 as a conservative figure.

The defendant is prepared to accept the claimant’s figure of £4,253.

The defendant accepts the claimant’s figure of £8,398.

The claimant claims £17,679 but the defendant says no credit has been given for the costs which the claimant and his mother would have incurred in any event. Whilst this argument may not succeed, for present purposes I take the defendant’s figure of £10,000 for this claim on a conservative basis.

On the basis of the figures assessed by me above on a conservative basis, the total of past losses to 28^th February, 2017 is £244,194. The claimant claims interest on those losses at 22%, but the defendant submits that this does not allow any credit for the interim payment of £250,000 made in October 2014, or for that to be made as a result of the present application, and does not reflect the long period of time over which the losses have occurred. Thus, the defendant suggests an overall rate of 15% should be applied. To allow for those points made by the defendant, and again adopting a conservative approach, I assess the interest at 15% on those losses, which gives a figure of £36,629.

The further losses from 28^th February 2017 to my predicted trial date of early June 2020 then have to be assessed as, together with the above losses to 28^th February 2017, they will form part of the past losses as at the predicted trial date. Thus, there is a further 3¼ years of ongoing costs from 28^th February 2017.

The claimant’s care expert advises that the care currently provided by the claimant’s parents (and particularly his mother) should in future be provided by professional care both during the day and at night. She has costed for one carer although, as indicated above, if the claimant’s behavioural problems persist after the next two or three years, he may require two carers. Mrs. Sargent has advised that the claimant should have five hours per day care on school days and twelve hours a day at weekends and in school holidays, plus a sleep-in night carer from 10.30 p.m. to 8.30 a.m. The annual cost of such care (including pension contributions) plus case management will be £115,536 in the first year and £113,436 per annum thereafter.

Ms. Cotterell, the defendant’s care expert, considers that initially the level of professional care suggested by Mrs. Sargent would be overwhelming for the claimant. She therefore suggests that, to when the claimant is 16 years, there should be professional care for 16 hours per week in term time and 36 hours per week in school holidays, with a sleep-in carer two nights per week. In addition, she allows for continuing parental care at 14 hours per week. She suggests that a sleep-in carer for two nights a week would give the claimant’s mother respite for three nights a week, as the claimant spends one night a week with his father. The overall annual cost of this care is £34,461. From the age of 16 years, Ms. Cotterell allows for additional care, although the calculation would appear to be in the redacted part of her report. It is said that the annual cost (including some continued family care) would then be £75,439. In addition, the defendant allows £11,704 for case management in Year 1 and £10,078 per annum thereafter.

On the basis of these figures, I calculate that the care and case management costs sought by the claimant up to 1^st June 2020 would be £370,767. The defendant’s figure I calculate at £218,090. In my judgment, it is likely that the trial judge will largely allow for paid carers including sleep-in care for, say, four or five nights per week, with perhaps a small daily amount of extra care by the parents. However, it may well be that the claimant’s care expert has overstated the number of hours required and so, on a conservative basis, including case management, I assess the care costs to 1^st June 2020 at £295,000, that being approximately midway between the claimant’s and the defendant’s figures.

On the basis of the claimant’s expert, the cost to 1^st June 2020 would be £51,941. The defendant has not disclosed any expert evidence on this topic, but suggests the annual cost claimed by the claimant is too great and its figure would be in the region of £37,750. On a conservative basis, I assess these costs at £46,500.

The claimant estimates £75,000 for the initial costs of aids and equipment. The defendant says that this is an inflated estimate and would include some items which would be part of the accommodation claim, and suggests only £25,000 should be allowed. The claimant’s figure appears rather high when one looks at the capital cost of equipment in the report of the claimant’s consultant occupational therapist, Julia Ho. A conservative figure in my judgment would be £35,000.

The claimant’s figure to 1^st June 2020 would be £6,500, and the defendant’s £4,550. On a conservative basis I would allow £5,000.

The claimant’s claim for therapies (including psychological input for his behavioural problems) to 1^st June 2020 would amount to £60,250. This includes over £11,000 per annum for speech and language therapy until age 16 years, although his speech is good. The defendant suggests that this claim is excessive and its figure for therapies would be £31,375. I am doubtful that the claimant needs anything like the degree of speech therapy suggested by the claimant’s expert Ms. Hazell, or that he would engage with it. A conservative figure for therapies would therefore be the defendant’s figure of £31,375.

Up to 1^st June 2020, the claimant’s figure for the extra cost of holidays would be £29,315, and the defendant’s figure £17,875. A conservative assessment in my judgment is £18,000.

The claimant claims £25,000 in respect of the legal costs of a possible appeal to a tribunal regarding his educational placement. This appears highly speculative and at this stage I would not allow anything for such claim.

The claimant estimates a cost of £30,000 and the defendant £10,000. Bearing in mind the claimant would have had the costs of a computer and similar equipment in any event, and that the equipment suggested by the claimant’s expert, Mr. Southall, seems somewhat excessive, a conservative figure would be £10,000.

I calculate that the total of the losses from 28^th February 2017 to 1^st June 2020 on the basis of the above figures assessed by me is £440,875.

The claimant is currently living in rented accommodation with his mother, having moved from their previous home, which was unsuitable, in about September 2015. However, it is said that the rented accommodation is not ideal because the claimant sleeps in a downstairs bedroom and his mother sleeps upstairs. Thus, the claimant may go on the stairs in the night with the risk that he may fall due to his mobility problems. Furthermore, it is said that, given the claimant’s behavioural and other problems, it is important now to provide him with a settled and permanent home which should be purchased for him. This is particularly so as the landlady of the present rented accommodation has indicated that she proposes to move back to that house, which means that the rented accommodation is not a long term option.

The claimant’s accommodation expert, Mr. Burton, has advised that the only long term option is to purchase a bungalow and adapt it to meet the claimant’s requirements. He identified a suitable property at a price of £607,100 with adaptation costs of £86,646. Unfortunately, that property is no longer on the market. The defendant submits that the claimant should remain in the rented accommodation in the short term, and the need to purchase a home for the longer term can wait.

I do not accept the defendant’s submission. In my judgment, it is entirely reasonable for the claimant to purchase a property now for his long term needs. As was stated by Whipple, J. in AC -v- St. George’s Healthcare NHS Foundation Trust [2015] EWHC 3644 (QB) at Paragraph 25, there is no precedent to support the case for requiring a severely injured claimant to rent a property as an alternative to the purchase of suitable accommodation.

Stephen Fisher, the defendant’s accommodation expert, in his letter dated 17^th June 2016, agrees that, in the future, the claimant needs to move to an adapted bungalow. He agrees that £607,100 is a reasonable guideline price, although he says the specific property identified by Mr. Burton had excessive floor space and unnecessary outbuildings. Mr. Fisher also agreed that £86,646 is a reasonable estimate for the costs of adaptation.

The costs of the accommodation should therefore be calculated in accordance with Roberts -v- Johnstone [1989] QB 878. With the life expectancy to age 78, the claimant says a multiplier of 32.05 is appropriate. The defendant does not accept this life expectancy, but says in any event that the proper multiplier for that life expectancy is 31.2. The claimant asserts that the claimant, but for his injuries, would have rented a property until age 30, and then bought a property jointly with a partner for £173,724. The defendant submits that, as the claimant is claiming future loss of earnings of £35,000 per annum, he would have purchased a property jointly at the age of 30 at a higher price than that contended for on behalf of the claimant, and suggests a price of £340,000, of which the claimant would have to give credit for half. In my judgment, for present purposes, it would be reasonable to assume that, at age 30, the claimant would have jointly purchased a property for £250,000 and will have to give credit for one half of that sum. The defendant also asserts that, in his Roberts -v- Johnstone calculation, the claimant has failed to give any credit for the claimant’s mother’s living costs and adopts a capital value of the former house of £200,000. The claimant argues that decided cases do not support the argument that the parents of a disabled claimant should give such credit. (See e.g. Warby, J. in A -v- University Hospital of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB)). In my judgment, the appropriate approach at the present stage is that such credit need not be given.

The defendant argues that the claimant, but for his injuries, would probably have rented a property between 25 and 30 years and credit should be given for that. There is dispute between the claimant and the defendant as to the reasonable maintenance costs of the home to be purchased, and the claimant’s additional running costs and relocation costs. The claimant also claims the cost of instructing a property finder, but in my judgment that is not necessary.

I therefore propose to adopt at this stage a conservative approach to the calculation of the accommodation claim, but having regard to the various arguments put forward by the parties as summarised above. For the Roberts -v- Johnstone calculation, I adopt the overall multiplier of 31.2 proposed by the defendant.

Thus, the totals for general damages, past losses, interest and accommodation costs assessed on a conservative basis on the predicted trial date of 1^st June 2020 are as follows:

It follows that the Eeles Stage 1 total is less than the amount now sought by way of an interim payment of £1.75 million (in addition to the £250,000 already paid). The question then arises of whether, under Eeles Stage 2, I can include elements of future loss such as future loss of earnings in assessing the likely capital amount of the final judgment, so as to bring the total figure above the amount sought by way of an interim payment. However, I do not have, as would be required under Eeles Stage 2, a high degree of confidence that the trial judge would award future loss of earnings or any other future losses by way of a capital sum (as opposed to a PPO), and I do not consider that there is a real need for an interim payment in the amount sought.

It follows that the application for a further interim payment in the sum of £1.75 million must fail. I must therefore consider what would be a reasonable proportion of the likely amount of the final judgment as assessed by me above now to be ordered by way of a further interim payment, taking into account the £250,000 already paid. I am aware that, in previous cases, 90% or even 95% of the likely capital award has been considered a reasonable proportion (see e.g. AC -v- St. George’s Healthcare NHS Trust (ante); TTT -v- Kingston Hospital NHS Trust [2011] EWHC 3917 (QB); FP -v- Taunton and Somerset NHS Trust [2011] EWHC 3380 (QB)). In my judgment, at this stage an appropriate further interim payment is in the sum of £1,100,000. When this is added to the £250,000 already paid, the total interim payments of £1,350,000 represent approximately 81% of the total likely capital award as assessed by me above. I do not consider that such interim payment would fetter the discretion of the trial judge or inhibit his freedom of decision so as to create an unlevel playing field. The further interim payment will enable the claimant to purchase a suitable property and adapt it, and set up an appropriate care regime. I therefore order that the defendant makes a further interim payment in the sum of £1,100,000.