Porter v Barts Health NHS Trust

This is a clinical negligence case. The child claimant, Miss Bayley Porter (“Bayley”), is now aged 12. At her birth on 7 May 2005 she sustained a hypoxic brain injury, as a result of which she now suffers from quadriplegic cerebral palsy and microcephaly. Bayley is thus very severely disabled, with limited mobility, and requires a wheelchair to move around. She has significant cognitive impairment.

By an order dated 30 November 2015 judgment was entered against the defendant Trust, following a compromise of the proceedings under the terms of which it is liable to pay 80 per cent of the damages that would have been awarded upon the basis of full liability.

If all items claimed, in terms of general damages, interest, past and future loss are included, then the total for the claim, after applying the 20 per cent discount for settlement, is £24,129,289, whereas the total suggested by the counter schedule is £2,850,789 plus periodical payments.

On 17 December 2015 an interim award of £500,000, inclusive of CRU, was made in the claimant's favour. Some of that money has been expended, but the court was informed that some £298,000 remains unspent from that interim award.

Bayley is wholly reliant upon others, principally her devoted mother, a Mrs Kelly Porter, for all her needs. Mrs Porter has three other children: Cheyenne, 18, Honey, 10, and Rico, who is 2. The family live in a three-bedroom house rented from Thurrock Council. It is a small house with two storeys: there are three bedrooms which, together with the bathroom, are on the first floor. The staircase has no handrail or bannister.

The evidence from Mrs Porter in her witness statement is that the three bedrooms consist of two "average size" rooms and one box room. Mrs Porter used to sleep in one of the rooms in a double bed with her daughter Honey, and Cheyenne and Bayley in a double bed in the second bedroom. However, as Bayley is now 12, her size and weight are such that Mrs Porter cannot carry her up and down stairs on a regular basis. As a result, she now sleeps downstairs in the front room on a sofa, and Mrs Porter and Cheyenne take turns to sleep on the other sofa so that Bayley is not left on her own. This arrangement has meant, however, that it is difficult for Mrs Porter to manage to give Bayley a bath more frequently than on alternate days. Even so, Mrs Porter is suffering from strain to her back as a result of having to carry Bayley up and down the stairs.

Bayley uses a wheelchair for mobility but the house has insufficient space for her to move freely. The doors are not wide enough for an electric wheelchair to pass through. Moreover there are no facilities or room for Bayley to have any form of physiotherapy, with consequential adverse effects upon her legs in particular. At the front door of the house there is a steep step which may make it impossible for an electric wheelchair to be used on the drive.

It is common ground that the existing accommodation is inadequate.

The evidence of the solicitor acting for the claimant, Kent Pattinson, in his witness statement dated 11 October 2017, is that the claimant’s family have been involved in a search for a suitable alternative property for a long time. In November 2016 they decided to seek the assistance of a "professional property finder" and a company named PLG Consultants Ltd of 176 King St, London W6, were instructed to continue the search on behalf of the claimant and her family. One potential place was identified in April 2017, but this was discarded as a possibility as the surveyor instructed to inspect it raised considerable doubts over the possibility of obtaining the necessary planning permission for conversion. Nothing seems to have come of either of the properties which were identified as possible alternative houses by the parties' respective surveyors in their first reports.

A large house has now been identified as available for conversion for Bayley's use and for the accommodation of the family and carers, with sufficient space for wheelchair access and internal use, and also for much-needed physiotherapy and similar activities. The house is called Birch House, in Tomswood Road, Chigwell IG7 5Q.

The reports of the surveyor, Mr David Reynolds, served on behalf of the claimant, confirm that the current premises are wholly unsuitable for Bayley's use, but that Birch House would, if converted and adapted as he recommends, satisfy all of the requirements in terms of suitability for Bayley's use that are set out at paragraph 9 of Mr Reynolds’ second report, produced in September 2017.

The purchase price of Birch House is £1,650,000. However, the further £330,000 would be needed for the associated costs in terms of conversion works, adaptation, fittings, and purchase costs. In addition, as the quantum hearing in the case is listed in October 2018 there is a need for a further year's care and case management costs of approximately £219,000.

In those circumstances the court is requested to make a further interim award of £1,900,000 to cover the claimant's needs to trial, since the £298,000 referred to above, the unexpended part of the first interim payment, can be used to make up all but £1,000 of the total required.

The point is made on behalf of the claimant that there is an urgent and pressing need for alternative premises to be purchased and converted, adapted, and equipped, as the present accommodation is neither suitable for the claimant's disability nor for the care which she requires. The evidence from Mrs Porter and from the claimant's grandparents show that there is really no doubt about the urgency involved. As leading counsel for the claimant put it, as each week passes in waiting to see if a less expensive property might be found Bayley’s mobility continues to deteriorate, as there is literally insufficient space in her present home for her to be able to move, other than to crawl very short distances.

There is no issue between the parties that the requirements of CPR 25.6 are satisfied. There is however a significant issue over the amount.

The principles to be applied are those set out by the Court of Appeal in the well-known case of Eeles v Cobham Hire Services [2009] EWCA Civ 204. However, the starting point is to be found at CPR Part 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”.

Under Eeles 1 (see Smith LJ at paragraph 43 of her judgment) the court must assess the likely amount of the final judgment, leaving out of account those heads of future loss which the trial judge might wish to deal with by way of orders for periodical payments (“PPO”.) It is important for the court to bear in mind that the claimant is not kept out of money to which she is entitled, but nevertheless to avoid the risk of an overpayment.

Moreover, in making the award, the court must be careful not to fetter the discretion of the trial judge by the premature making of an award that is so significant as to create "an unlevel playing field," nor one which impinges upon the judge’s freedom to make a PPO in respect of any particular head of claim for future loss.

That said, claimants of full age and capacity may spend the money awarded as an interim payment as they wish. In the case of a claimant such as Bayley, the expenditure which it is proposed to make in respect of her future accommodation will be subject to the approval of the Court of Protection.

The heads of claim to be assessed when considering the making of an interim award include general damages for pain, suffering and loss of amenity, special damages in terms of losses to date, and interest. The assessment should be carried out on a conservative basis. Provided that is done, a reasonable proportion may be a high proportion. Proportions as high as 90 per cent have been awarded in the past.

Where, however, the interim payment requested exceeds a reasonable proportion of the likely award thus assessed, recourse may be had to the second stage: Eeles 2. Under this stage, the court may include in the assessment of the likely amount of a final judgment the capitalised amounts of future losses. However, a judge can only do this if he or she “can confidently predict that the trial judge will wish to award a larger capital sum than that covered by” the items falling within Eeles 1 – see paragraph 45 of the judgment of Smith LJ.

The court must be satisfied by evidence that there is a real need for the interim payment requested. As Smith LJ pointed out (see para 45):

“For example, where the request is for money to buy a house, [the court] must be satisfied that there is a real need for accommodation now as opposed to after the trial and that the amount of money requested is reasonable. [The court] does not need to decide whether the particular house proposed is suitable, that is a matter for the Court of Protection, but the judge must not make an interim payment order without first deciding whether the expenditure of approximately the amount of money he proposes to award is reasonably necessary. If the judge is satisfied of that to a high degree of confidence then he will be justified in predicting that the trial judge would take that course and he will be justified in assessing the likely amount of the final award at such a level as will permit the making of the necessary interim award.”

Until February of this year, when the discount rate was changed from 2.5 per cent to minus 0.75 per cent, capitalised accommodation costs, including future running costs, were calculated in accordance with the case of Roberts v Johnstone [1989] 1 QB 878, on the basis of compensation for the loss of use of capital required by the purchase of a more expensive property: the “notional loss of investment income approach.” In Roberts v Johnstone the Court of Appeal held that it would be appropriate to base the calculation on an assumed rate of return of 2 per cent, but in 2001 the Lord Chancellor exercised his power under the Damages Act 1996 to set the discount rate at 2.5 per cent .

As has been widely commented, since the decision to move to a negative interest rate, it is obvious that it is no longer possible for any form of award to be based upon the Roberts v Johnstone principle. As William Davis J said in the case of JR (A Protected Party) v Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 (QB),

“I consider that the editor of McGregor [on Damages] was quite correct when he opined that a fair and proper solution should be found to the conundrum of providing a claimant with the means to purchase special accommodation. He also was correct when he suggested that a negative discount rate would mean that the approach in Roberts v Johnstone would lead to a nil award.”

In Wells v Wells [1999] 1 A.C. 345 the House of Lords held that the principle to be followed by the court in making an award of damages for future expenditure is to place the injured party as nearly as possible in the same financial position as he or she would have been in but for the accident. The aim was to award such a sum of money that will amount to no more, and at the same time no less, than the net loss. This principle remains the basis for an award, and it is to be anticipated that accommodation costs must be capable of being assessed as damages where, as a direct result of the injuries caused by a defendant's negligence, a claimant requires specially adapted accommodation which is of a size and kind that she would not have required had she not been injured.

In the case of George v. Pinnock [1973] 1 W.L.R. 118 it was held that the plaintiff should not be entitled to the capital cost of a suitable property, as this would leave the beneficiaries of her estate “a windfall” on her death. However, the court held that the plaintiff was entitled either to the additional mortgage interest on the additional cost or to damages for loss of income from the capital. Orr LJ said that,

“An alternative argument advanced was, however, that as a result of the particular needs arising from her injuries, the plaintiff has been involved in greater annual expenses of accommodation than she would have incurred if the accident had not happened. In my judgment, this argument is well founded, and I do not think it makes any difference for this purpose whether the matter is considered in terms of a loss of income from the capital expended on the bungalow or in terms of annual mortgage interest which would have been payable if capital to buy the bungalow had not been available. The plaintiff is, in my judgment, entitled to be compensated to the extent that this loss of income or notional outlay by way of mortgage interest exceeds what the cost of her accommodation would have been but for the accident.”

In the case of Manna v Central Manchester University Hospitals NHS Foundation Trust [2017] EWCA Civ 12 Tomlinson LJ said that

“The exercise in which the court is thus engaged is in modern conditions increasingly artificial. The assumption underlying the approach is that the claimant will be able to fund the capital acquisition out of the sums awarded under rubrics other than accommodation. But in modern times residential property prices have increased rapidly while general awards for pain, suffering and loss of amenity have remained at their traditional levels. Whilst Peter is no doubt robbed to pay Paul, it must often be the case that the accommodation assessed by the court as suitable is simply not purchased.”

Adding that many people,

“… would surely say that any device which legitimately facilitates the calculation of a fund which will enable proper care and support to be given to a person so grievously injured deserves support ….”

Tomlinson LJ said,

“[n]o one suggests that we should on this appeal revisit the imperfect principles which have held sway since the decision of this court in George v Pinnock [1973] 1 WLR 118.”

Many suggestions for an appropriate solution to the problem created by the change in rate have been made in professional literature since February of this year. These include basing awards of damages for accommodation upon mortgage costs to be paid by PPO, or by an award of capital for purchase of a suitable house to be occupied by the claimant upon the basis only of a life interest with a reversion to the defendant. Alternatively, funds provided by the defendant might be used by the claimant to buy such a house subject to a charge in favour of the defendant. In the still further alternative, it has been suggested that a variation on the Roberts v Johnstone method might provide a solution to the problem ifthe notional loss of investment income approach was replaced by the notional cost of mortgage interest.

Only very passing reference was made in argument to the problem as it will arise in this case if and when the assessment of damages listed for October 2018 proceeds to a hearing. None of the suggested possibilities for solution of the problem mentioned above was canvassed at the hearing of the application. Whilst reference was made to the existence of draft proposals by the government, it was rightly submitted that the court could not speculate as to what might happen in respect of such proposals to deal with the discount rate in the future. The Eeles approach had to be taken upon the basis of matters standing as they do today.

Counsel for the defendant trust suggested that for present purposes the court should make some form of "like-for-like" calculation. The basis for such a calculation, counsel suggested, was to take the approximate costs of suggested adaptation and extension which would be required for any property proposed by the experts, to deduct “betterment”, then add acquisition costs and running costs, and to apply an appropriate multiplier. By this method, counsel for the Trust submitted, on the claimant’s figures a capital sum of £783,143.45 resulted, whereas on the figures put forward on behalf of the defendant trust a capital sum of £664,360.80 would be provided.

For the claimant two different bases for the valuation of the accommodation claim were suggested: either,

For the defendant, the author of the counter schedule submitted that there was no justification for a claim for rental costs:

“… the claimant will not rent, as she will choose to invest her damages in property in order to avoid the loss of their value. The claimant is not entitled to recover in respect of costs she will not incur.”

In the case of Oxborrow v West Suffolk Hospitals NHS Trust[2012] EWHC 1010 (QB), on an application for an interim payment in which some issues arose that were to an extent similar to those in the present case arose, Tugendhat J said,

“11 Throughout the correspondence leading up to this application, and in paragraph 1 of the Defendant's skeleton argument, it is submitted that there will be an issue at trial as to whether the Claimant's future accommodation needs can adequately be met by his renting a larger property with modest adaptations. I noted that there was no reference in McGregor [on Damages] or the authorities cited to me, or elsewhere as far as I am aware, to any case in which a court or commentator has even considered whether a seriously disabled claimant's future accommodation needs can adequately be met by renting a property. [Counsel for the Claimant] and [counsel for the Defendant] both have very great experience of this field of the law, and neither of them was aware of any such discussion. No material has been put before the court to suggest that that is or could be a real issue at trial. [Counsel for the Defendant] states that consideration has been given in other cases to such future accommodation to the knowledge of those instructing him, but he put no written a material before me.

12

There is of course no reason in principle why the future accommodation needs of a claimant should not be met by renting a property. But in practice there are obvious difficulties. It is unlikely that adaptations would be modest, and if they were to cost a significant sum, there would be no assurance that a claimant would only have to pay them once. A claimant would not have security of tenure for the full expectation of his life and thus may have to move from one rented property to another, paying for the adaptations in each case. Indeed the situation may be worse, because as [counsel for the Defendant] reminded the court, in such a situation the claimant may even have to pay for the reinstatement of the property which he is leaving to put it back into the condition in which it had been before the adaptations had been made.”

Whether it was in the light of such considerations as the learned judge referred to in that case, or otherwise, the rental basis for accommodation was not pursued as a realistic one in the present case, for the purposes of the application for an interim award at any rate. It follows that the assessment can only be on the basis of alterations, adaptations, acquisition and running costs, et cetera.

A further point made on behalf the defendant trust is that to allow the claimant to purchase Birch House would incur greater running costs than are considered reasonable by either of the surveyors. As a result, it is submitted, the trial judge would be placed in the invidious and unnecessary position of having to determine on the basis of incomplete evidence and conflicting expert evidence whether the claimant's purchase of Birch House was unreasonable “… so as to require discounting various heads of loss including running costs.”

Be that as it may, it is common ground that the present accommodation is not merely inadequate but wholly unsuitable, and with every month that passes it becomes more unsuitable, as Bayley is still a growing child. Aids and equipment (such as a motorised wheelchair and similar items) are of absolutely no use to her if it is impossible to get them through the door, or if there is insufficient space for them to be used within. If the only accommodation which is of a suitable size, and which is suitable for adaptation, is one which happens to be somewhat larger and somewhat more expensive than premises which exactly match the claimant’s needs, that, it seems to me, is a problem for the defendant trust as the tortfeasor, not a misfortune to be visited upon the claimant. Whilst no evidence was given on the point, it can hardly be unduly speculative to consider that the cost within the Home Counties of acquisition and construction of bespoke premises, tailor-made to fit the claimant’s present and future needs exactly, with no unnecessary space, would be likely to be enormous.

Whilst the trial judge is likely to regard himself or herself is bound by the principles, however imperfect, established by the case of George v. Pinnock, I am confident that the court while having regard to the risk of over-compensation, will not permit the Claimant to be under-compensated as the result of the change in the discount rate, since the court must follow the decision of the House of Lords in Wells v Wells and make an award of damages for future expenditure which places the Claimant as nearly as possible in the same financial position as she would have been but for the accident. The point was expressly made in that case that the aim is to award such a sum of money that will amount to no more, and at the same time no less, than the net loss. The imperfections referred to by Tomlinson LJ in Manna have become distinctly more marked since the change in rate.

In the instant case I am satisfied that the purchase and adaptation of Birch House represents the only viable solution to Bayley’s needs and I am satisfied that the trial judge will allocate by way of damages in the form of a lump sum sufficient capital to enable her to be accommodated substantially in accordance with the requirements set out in the experts' reports. In my view such a lump sum is most unlikely to be less than £900,000.

Leading counsel for the claimant summarised the respective parties' positions as to the valuation of the heads of claim other than for accommodation for the purpose of Eeles 1 as follows.

At the hearing there was no discussion in any detail of the respective valuations of the particular heads of claim. In my view, for the reasons advanced by counsel for the Claimant, it is likely that significantly higher sums than those contended for by the defendant trust will be awarded in respect of some of these heads of claim.

Upon a conservative basis, therefore, it seems to me that a total approaching £1,450,000 is likely to be awarded, as follows:

A deduction of 20 per cent must be made to reflect the terms of settlement, giving a net figure of £1,080,000. A further deduction of 10 per cent to bring the figure towards the ceiling of what may be regarded as a reasonable proportion of the eventual award gives a final figure of £972,000.

It was accepted by counsel for the claimant that, even on an optimistic basis, it was impossible to provide for the interim award requested without recourse to Eeles 2.

Those acting for the claimant must pass a two-stage test in the presentation of a claim under Eeles 2. Not merely must they show that there is a real need for the interim payment requested in advance of the trial, but, secondly, that the court can have a high degree of confidence that the trial judge will award the elements of future loss which are suggested as the basis for the additional amount under Eeles 2 by way of capital sums, and not by PPO.

Counsel for the defendant trust, in addressing the “real need” stage of the test submitted first, that the parties' surveyors had made reference to purchase prices for alternative properties which were much less than the amount which form the basis of the application. The claimant’s surveyor had made reference to available suitable property at between £900,000 and £950,000, and the defendant's expert had made reference to property at a price of £741,000 (more recently £660,000.) The evidence from the solicitor for the claimant and from members of the claimant's family as to their inability to find any other suitable property other than Birch House, despite a year-long search involving agents, was (submitted counsel for the defendant trust) served on behalf of the claimant at an embarrassingly late stage.

Dealing with the second stage of Eeles 2, counsel for the defendant submitted that the court could not have a high degree of confidence that the trial judge would award all the elements of future loss suggested by those acting for the claimant by way of lump sum. Those acting for the defendant Trust had expressly reserved its position in respect of PPOs for heads of loss other than care and case management. The effect of the reduction in the discount rate was, it was submitted, such as would reduce all heads of future loss by the date of the assessment of damages. There was also an issue as to life expectancy.

The heads of claim for future loss to be taken into account at the second stage are conveniently set out in exhibit KP 2 to the witness statement of Kent Pattinson dated 29th of September 2017. The principal items are set out under columns headed “Schedule” and “Counter Schedule” respectively. The parties’ totals, after making a 20 per cent discount to reflect the terms of settlement, are as follows:

Omitted from the above are various claims and counter-offers including (in particular) those for future care: for that alone £20,662,371 is claimed as a lump sum, but the counter schedule suggests a PPO should be made. The author of the schedule says under the heading “The form of the award” that,

“It is noted that the schedule is presently calculated on the basis of a lump sum award for all heads of future loss. It is denied that this would be the form of award that would best meet the claimant's needs. The defendant avers that an award of periodical payments would clearly be appropriate in respect of the claim for future care, future case management, and that periodical payments may also be appropriate for the claim for other heads of future loss.”

Counsel for the defendant Trust submitted that the trial judge may wish to award at least elements of each of the heads of future loss, not merely those for care and case management, by way of PPOs.

In Oxborrow (supra) Tugendhat J said at paragraph 37 of his judgment, in dealing with Eeles 2 considerations in that case, that,

“[Counsel for the Defendant] also reminds me of the passage in Eeles at para 38 where the court said:

“However there will be cases… in which the judge at the interim payment stage will be able confidently to predict that the trial judge will capitalise elements of the future loss so as to produce a greater lump sum award. In such a case, a larger interim payment can be justified. Those will be cases in which the Claimant can clearly demonstrate a need for an immediate capital sum, probably to fund the purchase of accommodation. In our view, before a judge at the interim stage encroaches on the trial judge's freedom to allocate, he should have a high degree of confidence that such a course is appropriate and that the trial judge will endorse the capitalisation undertaken.

38 [Counsel for the Defendant] submits that the present arrangements can continue until trial and that this court cannot have the degree of confidence required to make the order sought by the Claimant.

39 I prefer the submissions of [counsel for the Claimant]. In my judgment I can have the high degree of confidence that is required that the trial judge will allocate by way of damages in the form of a lump sum sufficient capital to enable the Claimant to be accommodated substantially in accordance with the requirements set out in the experts' reports which are before the court.

40 Because it is common ground that the existing accommodation is inadequate, I have not thought it necessary to set out in detail why that is so.”

In my judgment this case is, if anything, a more compelling case then the case of Oxborrow so far as demonstration of the need for an immediate capital sum to fund the purchase of accommodation. Unless and until steps are taken to do this, the claimant’s condition will worsen. Given her needs and the challenges faced by her mother, the trial judge is likely to prioritise the Claimant's need for suitable accommodation. A capital sum in a very large amount is in my view almost inevitable, however the calculation is made. Of course, that will reduce the amount in respect of other heads of claim which the trial judge can order by way of PPO, but in my view it is most unlikely that the judge would choose to make a PPO precluding the purchase and adaptation of suitable accommodation. The accommodation issue, on the evidence, transcends all other considerations.

The state of the evidence is clear on the following matters.

I do not accept the submissions made by the defendant trust that, for the reasons given by their surveyor, Birch House may be suitable but is not “appropriate” whether in terms of distance from the Claimant’s school, or in terms of price. Those points, in my judgment, are not determinative of the issue of “real need” in circumstances such as the present where the rehousing of the claimant in suitable accommodation is all-important.

The point that purchase of the house might, or even necessarily will, involve expenditure of money on its purchase taken from other heads of claim is neither here nor there, as it is the reason for Eeles stage 2 being involved at all. Moreover, even at Eeles Stage 1, money paid as damages (for example) for pain, suffering and loss of amenity may well be so used. It is for that reason that the Court of Appeal made the point that the court need not normally have regard to the use intended for the money by a claimant: if any claimant is of full age capacity he or she may spend the money as they wish. If, as here, the claimant is neither of full age or capacity, it becomes a matter for the Court of Protection.

With regard to the second stage of the test, I do not consider that there is any risk of tying the hands of the trial judge at the hearing of the assessment of damages. As leading counsel for the claimant pointed out, it may be confidently predicted that the judge will wish to make awards in respect of future loss of earnings, aids and adaptations, and Court of Protection costs by way of lump sum awards. Not only is this the almost invariable practice of the court in all but the most exceptional cases, but also, as counsel pointed out, items which are variable in nature, or the need for which may be the subject of dispute, would not be suitable for a PPO in any event.

By contrast, it is possible to predict with confidence that the claim for future care and future case management will be the subject of a PPO.

A selection (only) of the main heads of claim for future loss to be taken into account at the second stage are set out below under columns headed “Schedule” and “Counter Schedule” respectively, rounded up or down to the nearest whole figure. As I have already mentioned, there was no critical analysis at the hearing of the figures put forward on either side under these heads. I have therefore done the best I can to make a conservative estimate of the likely awards in the third column.

Omitted from the above are the claims and counter-offers in respect, in particular, of accommodation costs and future care, future aids and equipment, neuropsychology, and certain other costs. Whilst it is probable that the trial judge will wish to make PPOs in respect of future care and possibly in respect of future aids and equipment, for example, it may well be that he or she will consider it appropriate to award a capital sum in respect of other heads. Thus there is a margin of appreciation, so to speak, above the total of the awards likely to be made in capital terms that are summarised above.

To the court’s estimate of £2,162,000 likely to be available under Eeles 2, there must be added the estimated amount available under Eeles 1 of £972,000 (taking account of the deduction for settlement.) The result of that calculation is the sum of £3,134,000. A “reasonable proportion” calculated by taking eighty per cent of that sum in round figures is just under £2,664,000.

In my view, therefore, the further £1,900,000 sought by way of interim payment, when added to the previous £500,000, will bring the total of the interim payments to £2,400,000 and will by no means exceed the amount which the court should consider making by way of interim payment having regard to all relevant considerations in the case of Eeles.