The judgment is available at: [2015] EWHC 1376 (QB)
In 2006, the claimant, HS, was born at the defendant hospital. When HS was born she was suffering from a streptococcal infection. Negligent failure by the paediatricians with the neo-natal care of HS to recognise and to treat the infection led to the development of meningitis. As a result, HS suffered catastrophic brain injury. She was 8 years old and would never have any capacity to manage her own affairs as an adult. HS, by her mother and litigation friend JS, brought a claim in clinical negligence claim arising out of the post-birth management of HS. Liability was admitted in a letter from the defendant's solicitors. Various heads of claim were agreed in advance of the hearing. Various matters remained in issue for the court to decide.
The matters on which the court's decision was required were:
- the amount recoverable for future care;
- the amount recoverable for case management;
- the sum recoverable to cover the additional cost of holidays caused by HS's disability;
- and whether the cost of a hydrotherapy pool at HS's home was recoverable.
The court ruled:
(1) In terms of future care, the court was satisfied that the cost of two full time carers during the day was recoverable immediately and throughout HS's remaining childhood and teenage years. Furthermore , the court decided that there was a need for a second night carer throughout HS's life and that there had to be provision for such care from that point onward. The court was satisfied that it was reasonable and proportionate for a second night carer to be provided as a sleeping night carer. The division between day and night care, when HS was an adult, was a 14:10 division.
(2) Case management cost should not be the same irrespective of how the care package was delivered. If an agency was supplying the carers, there was bound to be less time spent by a case manager on that aspect of HS's overall care. As to the other issues the contingency figure was bound to be a guesstimate rather than evidentially based and the difference in relation to travel costs was modest. Whilst there was evidence that a likely continuing case management cost was in the region of £17,000 per annum, the court had to also regard to the hourly rates agreed by the care experts and the hours said by each to be necessary. On the totality of the evidence, the court concluded that the future care management cost until HA's 19th birthday would be £12,094 per annum with an annual cost thereafter of £15,360.
(3) HS's disabilities meant that any holiday would cost more than if she were able bodied. The parents returned to India each year to visit the extended family who remained in their home state of Kerala. It was impossible to say with any certainty where HS would take her holidays in the future, particularly when she was an adult and when her parents were nearing retirement age. The parents asserted confidently that the trips to India would continue but the increasing difficulty of transporting HS and accommodating her in India could not be ignored. There was no doubt that she was entitled to the additional cost of those holidays. A figure of £5,000 per annum was appropriate to reflect the additional cost of holidays.
(4) It was established law, that the guiding principle was whether a claim advanced reflected a claimant's 'reasonable requirements' or 'reasonable needs' arising from his or her negligently caused disability. Just providing pleasure would not ordinarily be sufficient and some real and tangible benefits would need to be demonstrated.
The court was satisfied on the evidence that HS would make some use of a home pool. It probably would decrease as she grew older. In the circumstances the court did not consider that provision of a home hydrotherapy pool would be reasonable as a specific head of damage in the claim. There was a private facility nearby and costs of twice weekly visits to a private facility were recoverable.
A total award of £3,592,336 would be made.
Robshaw (A Child) v United Lincolnshire Hospitals NHS Trust [2015] All ER (D) 21 (Apr) applied.
For more information or to speak to a member of the Clinical Negligence team click here.
