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Quantum in Meningitis Cases

The Brain Injury Group 14th May 2019

Eventually, Billy came to dread his father’s lectures over all other

forms of punishment…..

“It’s a great honour …and it’s an honour to be with Her Majesty, obviously…I’m very

honoured to be given this honour.”

David Beckham upon receiving his OBE in 2003

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Introduction

Having been involved in litigating meningitis cases for over 25 years (see e.g.

Appendix 6), and given, sadly, the multiplicity of outcomes in meningitis cases (e.g.

children and adults, amputation, neurological, brain and spinal injury), I’m conscious

that there is no ‘one size fits all’ approach to quantum. These notes are therefore

intended to be as wide-ranging as possible, in order to touch upon the issues, if not

‘cover all the bases’, in such claims, and to provide a helpful resource to be revisited

from time to time as required.

Given the wealth of experience in the room however, I’m reminded of the ATLA award

for the Judge of the Year 2003, Judge Sheldon Shapiro, reprimanded by the Florida

Supreme Court for keeping on his judicial bench a toy lavatory that made a flushing

sound. When unpersuaded by the submissions of advocates appearing in his court,

he would flush the toilet. The Florida Supreme Court noted with approval the judge’s

agreement “to undergo psychological/behavioural therapy with an emphasis on

sensitivity training.”

A. Amputation/Prosthetic Claims

Functional Advances = Increased Costs?

Functional advances in prosthetics inevitably increase costs in respect of prosthetic

provision, as well as the costs of multidisciplinary assessment and supportive

therapies (see below). Technological advances have been based on the development

and use of ultra-lightweight materials, miniature microprocessors to sense position and

movement and lightweight motors and micro-hydraulics to give powered prosthetics.

Microprocessor-controlled knees and hands and commercially available electric

elbow, wrists and ankles have followed, significantly increasing movement and

therefore function.

However, more recently further developments have implications for reducing overall

costs eg, developments in waterproofing and microchips such that one prosthetic limb

could arguably be used for multiple functions e.g. the Genium X3 developed by

Ottobock with its advanced microprocessor knee for everyday, sports and water use.

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Key Issues on Quantum

• The Claimant’s age.

• The Claimant’s actual or intended premorbid occupation (if any).

• The Claimant’s premorbid activities, sports and hobbies.

• Type of upper limb amputation e.g. partial/hand amputation, elbow

disarticulation (amputation through the elbow), below-elbow (transradial) or

above-elbow (transhumeral) amputation,

• Type of lower limb amputation e.g. below-knee (transtibial) or above-knee

(transfemoral) amputation.

• Amputation stump length, healing, condition, phantom limb pains and/or CRPS

and the ability to use prosthetics.

• The benefit of early involvement in rehabilitation, therapy and prosthetic use,

with associated therapies and equipment, potentially leading to a better quality-

of-life/outcome in terms of function and potentially return to work.

• In liability and causation admitted cases, the need to claim substantial interim

payments at an early stage to trial prosthetics with MDT therapeutic input and

support, with a dual benefit for the Claimant and the claim.

• Conversely, benefits to Defendants in terms of maximising potential and e.g.

earning capacity, avoiding further deterioration in condition as a result of

poor/delayed therapeutic assessment and input, and significantly increasing

goodwill.

• The difficult issue of paediatric prosthetics, e.g. the weight and lack of

availability of children’s prosthetics and, if they are available, threshold ages for

initial use and growth patterns/projections dictating an increased regularity of

replacement.

• Cosmetic options and priorities i.e. Claimant preference.

• Partial wheelchair use and the risks/likelihood of reducing prosthetic tolerance

leading to increasing (or even full) wheelchair dependency and correspondingly

increased care/equipment costs, but potentially decreased prosthetic costs.

• The risks/likelihood of a reducing ability to assist with transfers.

• Life expectancy (sometimes not significantly reduced).

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• The need to claim provisional damages for a serious deterioration eg, transtibial

to transfemoral amputation or contralateral (and therefore double) amputation

(but note not for technological advances/increasing costs - see post).

Multidisciplinary Teamwork/Instruction of Experts

It cannot be emphasised enough that modern prosthetic use requires a multi-

disciplinary approach. This is likely to determine the instruction of experts, such as:

• Orthopaedic surgery eg, pre-existing osteoarthritic conditions, concurrent

orthopaedic injuries, type and outcome of amputation, prosthetic use, mobility

e.g. SIGAM mobility grades (see Appendix 3), residual earning capacity,

condition and prognosis – including the impact of abnormal stresses on the

spine, shoulders, hips and knee(s), deterioration with ageing and life

expectancy.

• Rehabilitation medicine ie, from a specialist centre eg, the Douglas Bader

Rehabilitation Centre at the Queen Mary’s Hospital, London - to deal with some

or all of the above e.g. the ‘usual suspects’ Dr. Sooriakumaran or Professor

Hanspal.

• Vascular surgery eg, stump viability and viability of the contralateral limb,

increased risk of cardiovascular disease.

• Cosmetic surgery eg, scar revision and improvement.

• Clinical psychology.

• Specialist gait and video analysis (when necessary) eg, to assess walking,

comfort and balance and improve gait to the equal 50/50 weight distribution

between limbs as the ‘gold standard’ in an effort to minimise future difficulties

and deterioration.

• Prosthetics.

• Orthotics.

• Physiotherapy.

• Occupational therapy e.g. specialist equipment, toileting and wheelchair

provision, vehicle adaptations, increased miscellaneous (e.g. utility) costs, DIY

and services, especially with ageing.

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• Holiday costs - note that this usually relates to better seat provision to facilitate

comfort whilst flying, as opposed to wheelchair and/or equipment carriage,

which should be provided by the airlines free of charge.

• Care.

• Accommodation.

• Advanced surgery (when indicated) eg, ‘Osseo-Integration’ (OI) and ‘targeted

muscle reinnervation’ (TMR); see below.

Availability of Multiple Prosthetics

Developments in prosthetics have led to the availability of multiple limbs and

associated equipment, for:

• Daily use.

• Water based activities.

• Recreational eg, skiing and even extreme sports.

• Cosmetic coverage - with remarkable advances.

• Specialised purposes eg, prosthetics for work.

Employment Capacity

Bear in mind that advances in prosthetics and particularly the demands and

expectations of younger prosthetic users have increased the need to consider and

facilitate a return to work, especially in view of the Equality Act 2010 (see below).

Surgical Advances

Surgical advances, sadly often due to the military conflicts in Iraq and Afghanistan,

have led to the availability of advanced surgical techniques, such as:

• Osseointegration (OI) and the Intraosseous Transcutaneous Amputation

Prosthesis (ITAP): direct attachment to the body via a surgically implanted

titanium pin allowing the attachment of an advanced microprocessor-

controlled prosthesis directly to the skeleton, removing the need for the

prosthetic socket and silicone liner on the stump.

• ‘Targeted muscle reinnervation’ (TMR): often used in high level upper limb

amputations, involving the surgical rerouting of motor nerves previously

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involved in muscle control. A large number of sensors are then positioned

on the reinnervated muscle, in order to allow conscious control of advanced

multi-segmented robotic limbs.

• 3D Printing: still relatively early days and experimental but ‘watch this space’

over the next 10 years. For example, the BBC News website on 1 March

2017 reported the case of Ben and Kate Ryan and their 2-year-old son Sol

who unfortunately underwent a left below-elbow amputation of his arm as a

neonate due to complications arising from a blood clot. Ben Ryan, a further

education psychology lecturer, gave up his job and in conjunction with

Bangor University, has developed an arm/hand that can grip, and launched

a new company ‘Ambionics’ (see their website).

Osseointegration (OI)

Whilst deferring to the experts, as I understand it the origins of osseointegration date

back to the early 1950’s when a Swedish Professor of dentistry, Per-Ingvar

Brånemark first began conducting experiments with titanium implant chambers to

study blood flow in rabbit bone. He discovered that the bone had integrated so

completely with the implant that the chamber could not be removed. Brånemark called

the discovery "Osseointegration” and in the mid 1960’s began his first successful

experiments on humans. Subsequently his son, Rickard Brånemark, became

interested in whether the technique could be replicated with prosthetics and as Director

of the Center of Orthopaedic Osseointegration at Sahlgrenska University Hospital,

University of Gothenburg, Sweden, between 1999-2014, performed more than 200

surgeries using a novel percutaneous osseointegrated prosthetic system for the

treatment of amputees.

The advantages are that a conventional socket is of course a fixed volume ‘vessel’ or

‘bucket’ (albeit with some adjustability), and inflexible in relation to volume changes

e.g. with activity and different holiday climates. With osseointegration there can

potentially be fewer issues around heat sweats and with a socket rubbing, creating

sores etc. In addition, clients may not have to buy clothes a number of sizes too big to

fit over the socket, giving a significant ‘boost’ to appearance and therefore confidence,

and/or can avoid effectively ‘sitting’ on a high socket with an above-knee amputation.

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It should be noted however, that, notwithstanding the fact that the military have re-

started osseointegration in the UK, these surgical techniques remain somewhat

controversial as they are arguably limited to relatively fit amputees and are relatively

expensive and not widely available in the UK (see now the Dorset Orthopaedic and

Relimb’s dedicated Osseointegration and TMR service based at the Royal Free

London NHS Foundation Trust in Hampstead). In addition, there is as yet no

settled/standardised approach (e.g. between the UK, Sweden, Germany/Holland and

Australia), to the sequence of time between the required surgeries and rehabilitation.

In addition, in the case of lower limb surgery, advances in prosthetic sockets and

silicone liners have given rise to good use of traditional prosthetic sockets in many

cases, such that on one view the above techniques need only be considered in the

event of particular considerations e.g. short stumps, bone changes, scarring and

tissue breakdown precluding the use of normal prosthetic limbs. In addition, there is

some early research that indicates significant risks of such procedures in terms of

bone damage (even including fractures), and in particular post-surgical infection,

which would need to be put in the balance. Careful input is therefore required from

medico-legal experts and treating clinicians before such advanced techniques are

considered or employed.

Such input should arguably include the recent policy statement by NHS England on

Osseointegration for transfemoral amputation in adults of 22nd February 2019 (see

https://www.england.nhs.uk/commissioning/publication/osseointegration-for-

transfemoral-amputation-adults/), pursuant to which it is not recommended by NHS

England as a treatment option for transfemoral amputation. The policy statement

acknowledged that “Residual limb and socket comfort problems may significantly limit

users of conventional prosthetic limbs”, and that “Mobility increased with a substantial

number of people using the osseointegrated prosthesis on a daily basis.” However,

given the lack of/small body of evidence on effectiveness/safety, employment/return

to work outcomes, quality-of-life and long-term viability, NHS England determined “that

evidence is not available to support the routine commissioning of repeat/revised osteo-

implant procedures” save in exceptional circumstances.

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It should however be remembered that, although expert prosthetic reports and

schedules of loss evidence ‘reasonable needs’ (see below) and present intentions as

to how awards are likely to be applied, once a settlement or judgment award has been

received it is open to an individual Claimant to apply the damages howsoever they

wish e.g. to self-fund osseointegration from conventional prosthetic/socket costs or

other heads of loss e.g. general damages.

The Impact of Improved Prosthetics

The good news then is that for modern and particularly younger amputees/prosthetic

users, technological advances in the design and use of prosthetics act to reduce

spinal/contralateral limb loading and decrease energy levels, thus assisting mobility

levels, and should potentially reduce the impact of ageing and delay the transition to

greater wheelchair use and even dependency (interestingly, see the provisional

damages case of Simon Butler v Ministry of Justice [2015] EWHC 3384 (QB)

below).

Again however, it may yet be too early to rely upon clinical literature and research to

displace the settled ‘wisdom’ as to the impact of ageing upon prosthetic users. As

indicated above therefore, the effects of ageing will need to be considered with your

experts in relation to the risk/likelihood of reducing prosthetic tolerance leading to

increasing or even full wheelchair dependency and increased and even ‘live in’ care

requirements in older age. As a result, issues of wheelchair accessible/adapted/’carer

friendly’ accommodation will inevitably arise.

Scheduling Future Prosthetic Costs

All aspects need to be considered with the clinical/rehabilitation, prosthetic, care,

accommodation and therapeutic experts and your counsel, including:

• General damages (see Appendix 4).

• Capital costs, often for multiple prostheses.

• The lifetime of particular prosthetics.

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• ‘Cycles’ of provision e.g a prosthesis having a lifespan of 6 years with a new

silicone liner every 2 years and a replacement prosthetic socket and perhaps a

protective cover at 3 and 5 years.

• Maintenance/partial replacement costs eg, sockets.

• Insurance costs.

• The use of split multipliers.

• Contingencies eg, for accidental damage/temporary replacement costs.

• The use of disabled multipliers in cases of preserved or residual earning

capacity.

• Increasing care and accommodation costs with ageing.

• A mechanism to deal with the cost impact of technological developments in

prosthetics over time. A variable PPO would arguably not be available, in that

it provides for one application to vary in respect of each specified disease or

type of deterioration or improvement, rather than developments in and therefore

the increased costs of prosthetics. However, it would be possible to argue

for/schedule a contingency for such increases, not least because of the dual

impact of increases in costs and, over time, the superseded/lower cost

prosthetics becoming unavailable. In the case of Patel v Wright & Midas

Security Group Limited [2005] EWHC 347 (QB) Mr Justice Treacy (as he

then was) considered that it would be wrong to speculate what was to happen

in relation to equipment costs in the absence of evidence whether they would

go up or down. However, if such evidence (both historical and projected), could

be deployed via your prosthetics expert, that first instance decision could

arguably be distinguished, at the very least creating a litigation risk for

defendants that such costs could well be recovered at trial, and therefore a

corresponding settlement value for claimants.

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B. Neurological, Brain and Spinal Injury Claims

Investigations: Which Clinical Disciplines?

• Orthopaedic

• Neurosurgical

• Neurology

• Neuropsychology

• Psychiatry/Neuropsychiatric rehabilitation

• Gastroenterology (percutaneous endoscopically-guided gastrostomy

(PEG) tubes for long term feeding; likely duration of use, extent and cost of

daily care/potential complications and further monitoring/treatment).

• Ophthalmology/Audiology/ENT (sight/hearing/smell and taste).

• Urology (consequences of long-term indwelling catheter/vaginal

fistula/bladder/bowel problems/need for related surgery).

• Plastic surgery (ie for facial or other scarring).

Orthopaedic Issues

• Complete v. incomplete SCI

• Indications for surgical/neurosurgical intervention

• Mobilising v. wheelchair use

• Bladder and bowel management

• Deterioration of mobility in later life

• Autonomic dysreflexia and/or syrinx

• In any event, contractures and maintenance physiotherapy to maintain

mobility and therefore quality-of-life

Neurological Issues

• Injury severity

• Capacity

• Convulsion risk

• Life expectancy

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Neuropsychological Issues

• Cognitive deficit

• Behavioural problems

• Potential for independence

• Potential to work

• Mental capacity.

Quantum Experts

Disciplines:

• Orthopaedic/neurosurgery (re: severity of condition, ongoing management

and pain levels)

• Urology (bladder and bowel function and care)

• Neurology (condition and prognosis/capacity/life expectancy)

• Pain management (eg, consequential CRPS)

• Rehabilitative medicine (particularly for initial “catch up”/intensive

rehabilitative therapy, in order to counter months or even years of under-

provision and arguably in the interests of both parties).

• Specialist brain/spinal injury care and case management.

• Occupational therapy.

• Physiotherapy.

• Speech therapy.

• Maxillofacial/cosmetic surgery.

• Accommodation/disability architect.

• Assistive technology.

• Probably not employment, save in particular circumstances. The case of

Turner v Walsall Hospital NHS Trust [2013] EWHC 1221 (QB) is relevant

to the grant or refusal of permission to rely upon an employment expert. Mr

Justice Globe upheld the decision of a master to refuse the claimant

permission, and in fact indicated that, in the circumstances of the case, he

would have exercised his discretion in exactly the same way.

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Provisional Damages

For example, in relation to the risk of epilepsy (Annegers et al. 1998), or the risk of

meningitis or syrinx (a rare condition in which a fluid-filled cavity develops in the spinal

cord or brain which, if untreated, can significantly affect function). Other examples

would be myocardial infarction or stroke, contralateral amputation or sympathetic

ophthalmia, or transplantation (e.g. liver, kidneys etc). Consider with your counsel

whether there is a real need for a provisional award or, if not, the potential value to a

claimant and the potential for a defendant to ‘buy off’ the claim for provisional

damages.

Note however that even a substantial risk of epilepsy may not significantly alter the

quantification of future damages in a severe head injury case, but, in the case of mild

to moderate brain injury, could act e.g. to remove any residual driving ability and/or

working capacity. Equally, a significant risk of syrinx may give rise to the risk of the

claimant becoming wheelchair bound which would again impact upon residual working

capacity and also upon care, accommodation, therapeutic and equipment needs.

In that regard, see the case of Alexander Kotula v. EDF Energy Networks (EPN)

plc & Another [2011] EWHC 1546 (QB) in which Mr Justice Irwin granted an order

for the claimant’s lump sum award to be treated as provisional damages and also an

order permitting variation of periodical payments if necessary. He held that the

(agreed) prospect of the claimant developing a syrinx was not fanciful and that an

identifiable proportion of those who did develop a syrinx suffered serious

consequences, such that the need for certainty and finality was outweighed by the risk

of the potential inadequacy of an award. The defendant’s interests could be protected

by the use of CPR Part 36 if unmeritorious applications were made, either for lump

sums or a variation of the PPO.

As above, see now the case of Simon Butler v Ministry of Justice [2015] EWHC

3384 (QB) in which a provisional award of damages was made in a personal injury

case for a severe foot injury where there was a 25% chance of amputation but a 70%

chance of post-amputation improvement with the potential for the claimant to be a

highly active prosthetic limb user. There was however an overall risk of an adverse

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post-amputation outcome of 7.5%, leading to a debate about whether there could and

should be an award of provisional damages. The court did award them on the basis

that a return to court would only be triggered if the claimant elected to undergo

amputation and his condition deteriorated i.e. by him being wheelchair-bound and

developing phantom pain etc.

See also the case of Loughlin v Singh and Others [2013] EWHC 1641 (QB) in which

Mr Justice Parker held that it was appropriate for provisional damages and a PPO to

be awarded where there was an accepted risk of the development of epilepsy causing

significantly increased care needs, and also the 2014 case of Jack Farrugia (below)

at paragraphs 120-124.

C. The Big Quantum Issues

• Life expectancy.

• Care - Care at home or institutional care? Regime e.g. one or two resident

carers or a team of rota carers? The nature and extent of night care.

• Care - NHS statutory funding.

• Care - local authority statutory funding

• Accommodation & other heads of loss

Life Expectancy

See the leading case of Royal Victoria Infirmary v. B (a child) [2002] Lloyd’s Law

Rep (Med.) 282, as endorsed at paragraph 69 of the case of Jack Farrugia (see

below). Notwithstanding the periodical payments regime, life expectancy frequently

arises as an issue; see for example the case of Jessica Florence Morgan –v- Paul

Phillips (14th March 2006) Lawtel (unreported elsewhere), which concerned life

expectancy and local authority care issues. The judge tended more towards the

evidence of the claimant’s expert in neurological rehabilitation than that of the

defendant’s neurologist and statistician (Professor David Strauss).

The clinical issues usually relate to immobility, cognitive deficit/aphasia, feeding and

swallow function, Sudden Unexpected Death in Epilepsy (SUDEP), autonomic

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dysreflexia and issues in relation to respiratory function/skin/UTIs.

The medico-legal issues are usually whether to adopt a top-down (e.g. Professor

Michael Barnes), or bottom-up (e.g. Professor Strauss) approach and the assessment

of life expectancy as a clinical or a statistical issue. Be aware of the case of Katie

Louise Lewis v Royal Shrewsbury Hospital NHS Trust (29th January 2007) on

Lawtel (unreported elsewhere), in which the then HHJ Alistair MacDuff QC, now the

recently retired Mr Justice MacDuff, preferred the bottom-up approach and therefore

disapproved of the evidence and the approach of Professor Barnes. In addition, see

the case of David Rowe v Dolman [2008] EWCA Civ 1040 in July 2008 in which the

Court of Appeal considered the issue of life expectancy in relation to the award of

periodical payments. See also the cases of Anthony Crofts v. Alan Merton (5th

September 2008) on Lawtel (unreported elsewhere), and Whiten (below), cases at

first instance that, amongst other things, confirmed the settled position that when a

court had determined life expectancy on medical evidence, a further deduction from

the multiplier would amount to a double discount for mortality.

The proper approach is to rely upon the 'Cohort', rather than the 'Period' life-

expectancy figures provided by the ONS, the former being based upon projected life-

expectancy and the latter upon historical data. Experts should also be encouraged to

select the data for England and Wales, excluding Scotland ie the particular life-

expectancy for a male or female, cohort (not period), in England and Wales only (not

the UK figures), from the latest projected figures based upon 2016 mortality rates. This

is particular important in relation to those neurologists who rely upon the Strauss and

Shavelle USA data, which Strauss himself has conceded involved historical mortality

data, when UK life expectancy is now significantly longer and projected life expectancy

figures are adopted; see “Life expectancy in cerebral palsy: an update” in

Developmental Medicine & Child Neurology 2008, 50:487-493 at 493, Strauss,

Brooks, Rosenbloom & Shavelle.

See the clinical references; post. See also the decisions in Whiten, Robshaw and

Farrugia as summarised below.

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Care Issues (1) - Family/Voluntary & Paid Care

Well rehearsed, namely:

• Did family/voluntary care have the character of nursing care or only

domestic help?

• The commercial care rates are set out in the PNBA’s Facts & Figures

each year. Although there are conflicting decisions as to whether the

aggregate rate should be awarded or the daily rate, the aggregate rate

as currently published is generally finding judicial favour; see Swift J in

Whiten v. St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB),

following on from Teare J in Massey v. Tameside & Glossop Acute

Services NHS Trust [2007] EWHC 317 (Admin).

• N.B. The alternative of a carer’s loss of earnings/giving up employment.

• For how long will parents be able to continue to provide voluntary care?

• What is their own age, orthopaedic or other condition (and therefore

prognosis), and life expectancy?

• Should they not be encouraged to resume as much as possible family

relationships, i.e. to cease being carers and resume their own

independent lives to that extent? Sleeping arrangements/night

care/sleep deprivation may be a particular issue/vehicle for persuasion.

• If/when professional care commences, will it be only day care or also

involve care at night and if so one or cheaper ‘sleeping’ or costlier ‘waking’

night carers?

• Issues of directly employed v. agency carers/local v national rates/quality

of staff/the need for a team leader/the (albeit exceptional) need for RSN

input/extras e.g. staff meetings/training/holiday/keep/pensions etc.

• What are the accommodation implications e.g. sitting room and/or

bedroom, bathrooms and an office?

• Issues of unplanned transfers requiring two carers and sleeping night

carers not being expected to provide assistance more than once or at

most twice a night.

• Attendance at day centres or residential college reducing care

requirements.

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• Ensure sufficiency of respite care, another critical factor in the

parents/family carers regaining their quality of life.

• Is residential care an issue?

• Is reliance placed upon family preferences? Can those preferences be

supported by claimant experts providing evidence that they are clinically

supportable e.g. in the case of a catastrophically injured claimant who

requires specialist clinical/nursing care, that that can be facilitated in the

domiciliary setting, such that, in accordance with family preferences, he

or she is going to be able to move out of a funded residential home?

Care Issues (2) - CHC (NHS) Funding

As we know, the issues will be:

• Is the claimant an adult or a child?

• If an adult, do they have capacity or not?

• Is there a significant issue on liability?

• Will there be a litigation risk percentage settlement?

• If there is a percentage settlement, when does it act to cause the claimant

to rely on statutory funding in order to make up the shortfall eg, a 90%

recovery might not but a 75% recovery may well do?

• The claimant chooses a care regime and the defendant must show that it

is not reasonable, as opposed to there being a cheaper alternative.

• Post the decision in Peters (see below), the issue is only one of preventing

double recovery by the claimant giving an undertaking not to

seek/continue with statutory funding or to give a reverse indemnity.

• See now the effect of Tinsley (see below).

• Is statutory funding already in place?

• Where will it be delivered i.e. in a residential or domiciliary (home) setting?

• Do we need the early involvement of a statutory funding expert?

A key issue: How secure is ‘continuing healthcare’ (‘CHC’) funding?

• At what Level? Level 1 is fully funded NHS continuing healthcare, Level 2

is continuing healthcare and social care and Level 3 is local authority

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funded care.

• In relation to CCG funding, the obtaining and disclosure of continuing

healthcare documentation and particularly the multidisciplinary Decision

Support Tool (‘DST’), and subsequent annual reviews.

• On 12th April 2013, the government/NHS issued updated guidance in

relation to eligibility, namely the “Guidance National Framework for

NHS Continuing Healthcare and NHS Funded Nursing Care” to be

considered in conjunction with the updated Decision Support Tool for NHS

Continuing Healthcare revised in November 2012.

• See Appendix 1 (pro forma) and Appendix 2 (an actual completed form);

what are the claimant's scores across the 12 'domains' of Communication,

Breathing, Nutrition, Skin (including tissue viability), Continence, Mobility,

Drug Therapies and Medication, Cognition, Behaviour, Psychological

Needs, Altered States of Consciousness, Other Significant care needs (11

‘domains’ plus an additional 12th for Autonomic Dysreflexia)?

• Is there a level of 'Priority' need in any one of the four domains that carry

that level (Breathing, Drug Therapies and Medication, Behaviour and

Altered States of Consciousness)?

• Is there a total of two or more incidences of 'Severe' need across all the

care domains?

• Alternatively, is one domain recorded as 'Severe', together with needs in

a number of other domains?

• Finally, is one domain recorded as a 'High' need but with complexity

justifying a primary health need due to interaction with other needs?

However, the light of Tinsley (below), can the Court be reassured that measures

are in place to avoid a potential post-settlement scenario where, notwithstanding

a genuine/present intention to forego statutory funding, the landscape changes

and the claimant benefits from double recovery?

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Care Issues (3) - Local Authority Care Provision

As we know, the issues will be:

• Double recovery v under recovery.

• Institutional or domiciliary care?

• Local Authority discretion in funding domiciliary care.

The issue of ‘double recovery’ revisited:

Governed of course by the case of Chantelle Peters v. East Midlands Strategic

Health Authority & Another [2009] EWCA Civ 145. The case establishes that a

claimant has the choice to embrace publicly funded care provided by the local

authority, or alternatively to forego such provision and seek full recovery from the

tortfeasor defendant.

The position is therefore analogous to a claimant who has recourse against two joint

tortfeasor defendants and issues of mitigation of loss do not arise. Even if they did, it

is reasonable for a claimant to choose immediate full recovery from the defendant, as

opposed to the uncertainties of the quality and continuity of publicly resourced

provision.

However, the rule against double recovery means that a claimant cannot have both a

full care package funded through damages and subsequently public funded care. The

claimant therefore has to identify whether double recovery is possible and, if so, satisfy

the court that it will not occur. In that assessment, a key issue is what aspects are

permitted to be brought into account by a local authority in calculating what, if any,

financial contribution to care should be made.

Different considerations apply:

• when the claimant is a Protected Party;

• under the Care Act 2014 and the Care and Support (Charging and

Assessment of Resources) Regulations 2014 (note the contrasting situation

in Wales); and

• when award is by a conventional lump sum or PPOs.

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It is arguable that PPOs as opposed to lump sums are taken into account if a local

authority identifies the need for type of care but declines to fund it. This derives from

secondary regulations to the Care Act 2014.

You will also need to bear in mind that for Welsh claimants that there is a Welsh

equivalent of the Care Act which only requires a claimant to pay a few thousand

pounds per annum for round-the-clock care, even if they are in receipt of capital or

indeed PPOs.

In relation to double recovery, in the Peters case the Court of Appeal were satisfied

with the Claimant, as a Protected Party, agreeing to limit the authority of the Deputy

to preclude an application for public funding without further order, direction or authority

from the Court of Protection and providing for the Defendants to be notified of any

such application (a ‘Peters’ Undertaking’).

In a case where the claimant is not a protected party, the court would have to be

satisfied by at the very least witness statements disavowing double recovery, but more

likely an offer of a passive reverse indemnity in a PPO case.

See then the case of Ben Harman (A child by his Mother & Litigation Friend

Joanne Harman) v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662

(QB) in relation to the application of Peters to local authority funding and

accommodation issues.

See also the case of Tinsley v Manchester City Council and Others [2017] EWCA

Civ 1704 [2018] 2 WLR 973 which adds a gloss to the court’s approach to double

recovery in Peters, and on one view acts to undermine it. However, on one view the

authority of Tinsley’s limited to its particular facts.

Those were that, in May 1998 Damien Tinsley was badly injured in an RTA which sadly

caused him to develop an organic personality disorder, such that he was a compulsory

patient under section 3 of the Mental Health Act 1983 for periods of time. Liability was

settled with an apportionment of 90% in his favour. Upon assessment, the argument

20

that his damages should be discounted because the local authority would be obliged

to pay sums under s.117 Mental Health Act 1983 failed because it was held that the

LA would not fund a regime that the claimant would accept or that the court considered

reasonable. He was therefore awarded a fully funded care regime to the value of

£2.89 million.

Around 10 years later, Mr Tinsley had been released from detention and placed in a

local authority funded mental health nursing home, and then moved into private care.

However, his new deputy took the view that there had been mismanagement by a

previous deputy and that he could no longer fully Mr Tinsley’s care without resort to

statutory funding; hence the application to the local authority, who declined on the

basis of the award of damages. It was argued on behalf of the deputy that Section 117

of the MHA 1983 required the local authority to provide after-care services, relying

upon the House of Lords authority of Stennett that local authorities could not charge

for the services. The defendant argued that this did not extend to persons who had

funds available to them from a damages claim and that to allow statutory funding would

offend against the principle against double recovery.

At first instance the judge found for the deputy. More importantly however, the Court

of Appeal also supported the deputy, in clear and unequivocal terms, considering that

the defendant was advancing “an impossible argument” and holding that “a refusal to

pay for such services is effectively the same as providing such services but charging

for them”.

In its decision, the Court of Appeal therefore:

a. confirmed the rule against double recovery;

b. stated that it is a matter between the tortfeasor and the claimant;

c. but stated that a view had to be taken at trial.

In relation to the double recovery argument, the Court of Appeal reiterated that there

was nothing wrong in principle or immoral in a claimant who recovers damages for

care and case management subsequently applying to the state for care post-

21

settlement. The time for testing a claimant is in the personal injury proceedings, not

subsequently.

On that point, at paragraph 26 of his judgment, Lord Justice Longmore stated “It is, of

course, the case that courts will seek to avoid double recovery by a claimant at the

time they assess damages against negligent tortfeasor. If therefore it is clear at trial

that a claimant will seek to rely on a local authority’s provision of after-care services,

he will not be able to recover the cost of providing such after-care services from the

tortfeasor. Crofton is itself authority for that proposition.” He continued however “It

does not follow from this that, if a Claimant is awarded damages for his after-care he

is thereafter precluded from making an application to the local authority”, the local

authority in that case accepting that, had they been satisfied that Mr Tinsley’s funds

had run out, or were about to run out, they would have accepted liability to fund such

services.

In summary therefore, the authority turned on the fact that the duty of a CCG or local

authority is to provide after-care services for any person who is detained under section

3 of the Mental Health Act 1983 but then ceases to be detained, and in doing so,

irrespective of whether the CCG or the local authority is involved, they are providing

what is essentially a health-related form of caring treatment, such that they are

prohibited from charging for them (see paragraphs 11-12 and 18 of the judgment).

In addition, the important background to the situation in Tinsley was the fear of the

new deputy, whether or not justified but not challenged at the time, that, due to

concerns of the mismanagement of financial affairs by the previous deputy, Mr Tinsley

would be unable to sustain the cost of funding of his existing care arrangements from

the personal injury settlement in the long-term, such that he sought statutory funding

(see paragraph 5 of the judgment).

Therefore, as well as to the right to statutory funding of after-care services pursuant to

section 117, the clear indication was that the Court of Appeal considered that there

had been a relevant change of circumstances in the decade after the original claim

was settled. Obviously if a claimant expressed an intention not to apply for statutory

22

funding but then made either an immediate or very quick application wholly contrary

to that expression of intent, the situation would be rather different and there would be

no change of circumstances and the suspicion of lack of bona fides on the part of the

claimant in the first place, potentially allowing a defendant to reopen the issue of likely

double recovery.

Accommodation Claims - general considerations

Beyond those costs identified by your accommodation expert, consider the

implications for the parents and particularly siblings if a family home with a substantial

equity (or any) is adapted or sold and accommodation purchased and adapted and

placed in the Court of Protection.

Irrespective of issues of occupational rent (which has generally fallen out of judicial

favour; see below), in the event of the claimant’s unexpected death, how will the

parents be housed/their equitable interest recognised? In addition, in the event of a

young claimant with a long life expectancy, is the family unwittingly denying other

siblings their share of the inherited family home?

Be aware also of the accommodation issues in relation to e.g. the care regime (carer’s

accommodation and an office and/or sitting room, intercom or even CCTV coverage),

as well as the usual issues of a therapy/activity room, a living/conservatory space and

often a pool/hydrotherapy needs.

Note also how this impacts upon interim payment applications, given that the

requirement imposed by CPR Rule 25.7(4) is to make an order for no more than a

reasonable proportion of the likely amount of the final (i.e. future) judgment,

introducing a tension between the application of the current Discount Rate and the

court’s capital awards both generally and upon accommodation claims in the future

i.e. potentially post the re-review of the Discount Rate.

23

Other Heads of Loss

• Case management.

• Intensive and future rehabilitation/monitoring.

• Future orthopaedic or cosmetic surgery e.g. for facial or other scarring.

• Costs of spinal surgery.

• Psychological/psychiatric assessment and costs of counselling/CBT.

• Occupational therapy.

• Physiotherapy.

• Hydrotherapy.

• Speech and language therapy.

• Aids and equipment (including hoisting, wheelchair and incontinence

provision).

• Additional education costs (including appeals in relation to provision).

• Computer, environmental and technology aids. As above, note the case of

Patel v. Wright & Midas Security Group Limited [2005] EWHC 347 (QB),

where Mr Justice (now the retired Lord Justice) Treacy considered issues of

clinical/statistical life expectancy, care provision and the costs of assisted

conception for the wife of a brain injured claimant. However, in the absence of

evidence of what was likely to happen to equipment costs, he considered that

it would be wrong to speculate whether the costs would go up or down.

• Vehicle purchase, adaptation and increased running costs.

• Past/future travelling expenses (including private ambulance/wheelchair taxi

costs). Be conscious of the distinction between vehicle standing and running

costs; see Rand v. East Dorset Health Authority [2000] Lloyds Med LR 181

at 197. Mr Justice Newman upheld a challenge to transport costs claimed on

the basis of 35p per mile as including standing charges and awarded running

costs of only half that figure, i.e. 17.5p per mile (see now the current figures in

the latest version of Facts & Figures published by the PNBA).

• Past miscellaneous expenses, including damaged property.

• Increased household/utility expenses.

• Prescription charges (if incurred); consider the need for an annual Pre-

payment Certificate (see again the latest version of Facts & Figures).

24

• Increased holiday costs from specialist providers (including family members

and if necessary, a carer).

• Gardening/DIY/car servicing expenses (on a labour only basis using the

Annual Survey of Hours and Earnings from the ONS and employing the

rates/information conveniently provided at in Facts & Figures).

• Without evidence of expenditure i.e. witness statements, by receipts and other

documentation e.g. historical and current photographs of houses, gardens,

allotments and even holidays and of advising family/carers to keep a running

iPhone/iPad/diary note with a file of receipts, defendants are likely to question

why these steps weren’t taken in order to discharge the burden of proof?

• Court of Protection/Deputyship costs

D. An Issue-based Summary of Recent Cases

Following the case of Leo Whiten (A Protected party by his Mother & Litigation

Friend Samantha Nowell) v St Georges’s Healthcare NHS Trust [2011] EWHC

2066 (QB) there have a been a number of decisions on the key issues of life

expectancy, care, accommodation and loss of earnings.

(1) Jack Farrugia v (1) Stephen Burtenshaw (2) MIB (3) Quinn Insurance Ltd

[2014] EWHC 1036 (QB).

(2) Eva Rose Totham (A Protected Party by her Mother & Litigation Friend Sarah

Elizabeth Totham) v Kings College Hospital NHS Foundation Trust [2015] EWHC

97 (QB).

(3) A (A Child & Protected Party by Her Mother & Litigation Friend C) v University

Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB).

(4) Brooke Gould v Peterborough & Stamford Hospitals NHS Foundation Trust

[2015] EWHC 958 (QB).

(5) James Robshaw (A Child by His Litigation Friend Suzanne Adams) v United

Lincolnshire Hospital NHS Trust [2015] EWHC 923 (QB).

(6) HS v Lancashire Teaching Hospital NHS Trust [2015] EWHC 1376 (QB).

(7) Ben Harman (A child by his Mother & Litigation Friend Joanne Harman) v

East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662 (QB).

25

(8) Manna v Central Manchester University Hospitals NHS Foundation Trust

[2015] EWHC to 279 (QB), a case of bilateral tetraparetic cerebral palsy in which Mrs

Justice Cox decided issues of appropriate multipliers (paragraphs 183-186), earnings

and pension losses (187-191), future care and case management (paragraphs 192-

219), including the need for two carers at all times as recommended by Maggie

Sargent. A significant number of other heads of loss were also reviewed. See now the

Court of Appeal decision [2017] EWCA Civ 12.

(9) See also the test in the difficult case of Christine Reaney v (1) University

Hospital of North Staffordshire NHS Trust (2) Mid Staffordshire NHS Foundation

Trust [2015] EWCA Civ1119, as to whether in certain cases the nature of care is

quantitatively and/or qualitatively different from that which would have been required

in any event, dictating a defendant’s liability for only additional needs or alternatively

the entirety of those needs.

(10) Albeit when the claim was unsuccessful and therefore arguably obiter, see also

the approach of Mr Justice Soole in Hosseini v Central Manchester University

Hospitals NHS Foundation Trust [2016] EWHC974 (QB) in considering the test in

Reaney (paragraphs 104-106 of the judgment), and in preferring aggregate hourly

care rates and a 25%, rather than a 33%, deduction for gratuitous care (paragraph

107).

(11) See again the case of JR (a Protected Party by His Mother and Litigation

Friend, JR) v Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC

1245 (QB), on a range of issues as set out above.

(12) See now Swift v Carpenter [2018] EWHC 2060 (QB) in relation to the post-JR

approach to awards of capital for the purchase of accommodation (paragraphs 112-

142 and especially 128-137), but, note in the context of an amputation case, also upon

aids and equipment (paragraph 44), care and case management, initially in the context

of childcare (paragraphs 45-69), holidays (paragraph 74-84), transport/travel

(paragraphs 85-95) and loss of earnings (paragraphs 96-111).

26

Life Expectancy:

• Strauss & Shavelle: Based upon USA historical and not UK projected data and

not readily applicable to younger children.

• Subsidiary argument re the use of whole life multipliers/see now paragraph 20

of the Explanatory Notes to the 7th Edition of the Ogden Tables i.e. the argument

that the use of Table 28 Multipliers for a term certain to a predicted life

expectancy is likely to result in too high a multiplier.

• That argument was unsuccessfully advanced in Royal Victoria Infirmary &

Associated Hospitals NHS Trust v B (a Child) [2002] Lloyds Rep (Med) 282.

• It was then rejected (Whiten 21/86-26/105 and see also Robshaw at paragraph

40).

• An interplay between statistical data and clinical evidence (Jack Farrugia at

paragraph 65-70 and Robshaw paragraphs 33-39).

• Updated statistical literature since Whiten in 2011 (42-50); see below.

• Discussion of whether any adjustments to the Strauss data should be made

before or after conversion from USA to UK statistics (91-100; the contrary

approach in Whiten would need to be appealed (99-100)).

• Arguments re an upward adjustment to life expectancy for the removal of risks

and quality of care successful (see Robshaw 107-129 and effect on assessment

at 129-137).

‘Reasonable Needs’:

• The authorities reflect interesting and developing arguments in relation to what

constitutes, and how a court should approach and quantify, a claimant’s

‘reasonable needs’ (see initially Mrs Justice Swift in Whiten at paragraphs 4 and

5 and Mrs Justice Laing in Totham at 12-15).

• In A Mr Justice Warby doubted any extension of the “requirement for

proportionality” argument in Whiten into a more general proposition by which “a

claimant should not recover compensation for the cost of a particular item which

would achieve a result that other methods could not, if the cost of that item was

disproportionately large by comparison with the benefit achieved”, as being

contrary to the basic rules of compensation (12-16 and see also 78-80).

27

• In Robshaw Mr Justice Foskett reviewed the authorities (162-164) and, albeit

obiter “tentatively” expressed his agreement with Mr Justice Warby in A in his

endorsement of Mrs Justice Swift’s approach in Whiten.

• See in particular Mr Justice Foskett’s approach, namely consideration of the

range and overall proportionality of potential costs usually resolving the

question, but then not being bound to deny a claimant a more expensive head

of claim as unreasonable, subject of course to being satisfied that the higher

amount is likely to be expended (paragraphs 166-167 of Robshaw).

• See also the case of Andreou v S Booth Horrocks & Sons Ltd [2017] EWHC

174 (QB), in relation to issues of ‘reasonable needs’ re equipment purchases.

Care:

• Aggregate as opposed to basic rates preferred (see Whiten at 35/139) due to

very high level of care, all hours of the day and night causing stress and

exhaustion and only gradual and late introduction of paid care (paragraph 141).

See also Totham at paragraphs 23 to 31 and Hosseini above.

• Discounted by 25% not 30% (Whiten at 36/142-144 and see also Totham at

paragraph 28 and Hosseini above; see also the (albeit interim payment) case

of LAT (a Child) v East Somerset NHS Trust [2016] EWHC 1610 (QB) at

paragraph 22).

• The subject of a concession or an indemnity if and when a claimant is at a

residential school or other establishment (Whiten 49/207).

• Pre-trial ‘in-house’ case management “unfortunate and ill judged” (Whiten at

49/208 - 50/211).

• The ‘Double Up/more expensive’ versus ‘Targeted/less expensive’ care

argument - ‘Double Up/more expensive’ i.e. two carer regime preferred (see

Robshaw, when Hazel Tuckfield was criticised for shifting her position back and

forth (168 - 177)).

• ‘Double Up/more expensive’ care argument also successful in HS (14-20) and

Manna above, and in the case of Jack Farrugia, subject to a modest adjustment

for structured ‘family time’ (see the arguments at paragraphs 71-88 and the

Judges findings at 89-100). In Manna in particular see the withering criticisms

28

of the judge at first instance of the defendant’s care expert Liz Utting, as

opposed her approval of the evidence of Maggie Sargent (192-219).

• Childcare costs of a claimant not recoverable (Robshaw 189-192), when the

chances of a severely injured claimant having children in the future is no more

than “fanciful” (see Totham 53-71).

Accommodation:

• Generally, claimants should be wise to the implications for the parents and

particularly siblings if a family home with a substantial equity (or any) is adapted

or sold and accommodation purchased and adapted and placed in the Court of

Protection. Irrespective of the issue of occupational rent (which has generally

fallen out of judicial favour; see below), they should consider the question of

how, in the event of the claimant’s unexpected death, the parents will be

housed/their equitable interest recognised in an uncomplicated way?

• In addition, in the event of a young claimant with a longer life expectancy, the

family maybe unwittingly denying other siblings their share of the inherited family

home.

• Past Costs: Beware a claimant extensively adapting one property and then

seeking to purchase another. Mrs Justice Swift in Whiten: “In most cases, the

incurring of duplicate adaptation costs will not be reasonable and should not be

borne by a defendant” (94/414), although in that case there were particular

stresses and pressures which justified it.

• Future Costs: Obviously in a state of flux with the initial and further Discount

Rate review, as reflected in the cases of JR and Swift above.

• However, there should arguably be no deduction or adjustment to the Roberts

v Johnstone calculation or for an occupational rent from the family, as opposed

to credit for the uninjured adult costs of a claimant’s accommodation (see

Whiten from 104/458 and the conclusions at 106/465 and 108/470 and also

LAT at paragraph 44).

• The rationale is largely due to the impact upon the parents/family of having a

disabled child and the difficulties of devising and/or policing an occupational rent

arrangement (Whiten 106/464 to 108/470 and A at 139).

29

• Such a deduction to a child’s damages due to an incidental benefit to

parents/family is wrong in principle (see A at 134-137 and review of authorities

at 140-152).

• Approach endorsed in Robshaw and applied also to the parents’ rental income

from their original/retained home (277-279).

• In the case of Manna, it is noteworthy that the Court at first instance allowed

allowing for adapted accommodation for the divorced father as well as at the

primary home (255-257 and 273-285). See now the Court of Appeal decision

[2017] EWCA Civ 12 in which the CA rejected the defendant’s appeal against

an award of £368,578 made for the adaptation of an additional property at which

the claimant would enjoy shared care from his natural father, ordered on a

Roberts v Johnstone basis using the claimant’s lifetime multiplier, an approach

which had not been the subject of objection at trial.

• See also the case of Soran v St George’s University Hospitals NHS

Foundation Trust [2015] EWHC 3279 in which the defendant Trust applied to

admit expert accommodation evidence as to differing accommodation costs

between London and Leicester, where they contended the claimant should live,

although in granting the application the court doubted the merit of the argument

in the particular circumstances of the case.

Home Pool:

• Although pleasurable, in the absence of lasting therapeutic benefit or real clinical

need it will be difficult to secure a home pool, however convenient.

• Convenience can be met by a decision re the location of the property to be

purchased (Whiten 58/257-60/268). No pool awarded.

• In A however, the child unfortunately suffered from fluctuating dystonia causing

unpredictable spasms, associated pain and screaming (28-47).

• See the formulation of preconditions by the defendant (79) and the concern of

the trial judge that “therapeutic treatment” was being given too narrow a meaning

(80). Taking into account both the factual evidence (83-90) and the expert

evidence (91-106), including the trial judge’s finding that the child was in “agony”

(109), he found that “relief from this agony is necessary”.

30

• This was notwithstanding a lack of scientific literature re the effectiveness of

hydrotherapy in the relief of pain (111).

• See also the impact of videos (17 and 112 and also in Totham at 6-9).

• Access to public pool facilities was a relevant consideration (113-114) as was

alternative water therapies (115-116).

• Balancing all these factors, the costs of a home pool were awarded in what the

trial judge strongly suspected were the “exceptional circumstances” of the case

(119 and 184 (iii)).

• In Robshaw however, there was a consensus amongst the experts on both

sides of the physical and psychological benefits to James (284-288). Whilst a

public swimming pool was accessible, it was too cold, and the existing pool hoist

was unsuitable, it not being easy to provide suitable equipment privately (289-

291).

• Having reviewed the authorities, the trial judge found that there was no rigid test

and that each case is pending on its own facts (293-294). Whilst pleasure alone

as opposed to some real and tangible benefit was not ordinarily sufficient, in this

case a home pool was justified (295-296). Whiten was distinguished on the

basis that the clinical need in that case could be met by the availability a nearby

public pool with trained carers and physiotherapists, which was not the instant

case.

• In HS, notwithstanding the claimant’s enjoyment and potential family bonding,

the experts were unanimous that there was no therapeutic benefit (44-45).

Whilst Robshaw was considered, private facilities were accessible, could be

reserved and HS enjoyed trips out in the car (46-47).

• The costs of a home pool were therefore not recovered but the capitalised costs

of the private facility were £125,000 (48).

• In the case of JR, the Judge distinguished the case from the

exceptional/effectively clinical need in the case of A and adopted a similar

approach to that in HS by making provision for the cost of visiting a local

hydrotherapy pool, of which there were several, on a regular basis, at an annual

cost of £1,925 to the Claimant’s life expectancy of 70 years (87). He also

criticised the suggestion of a ‘cut-down’ swim spa pool as an alternative to a

31

hydrotherapy pool as potentially dangerous and not assisted by only being

suggested on behalf of the Claimant at the last minute.

Loss of Earnings:

• Note that, whilst the principle of making deductions from loss of earnings for

work-related expenses was conceded in Totham but offset against potential

benefits in-kind on top of salary (51) and were made in Whiten (13/123-124) and

Robshaw (154), such a deduction was refused in HS (40).

• See also the approach of the Judge in JR in adopting the Claimant’s brother as

a useful comparator, with some account taken of the progress of his cousins, and

the use of median net annual earnings for particular occupations (paragraphs 13-

19).

• See in addition Tate v Ryder Holdings [2014] EWHC 4256 (QB) as illustrative

of the courts’ potentially sympathetic approach to an even speculative claim for

loss of earnings. In that case the claimant came from a very deprived background

(his father was a violent and serious sexual offender and his mother an alcoholic).

There was no evidence that any living relative of the claimant had ever been in

paid employment. The claimant had suffered from significant learning difficulties

and delayed language skills prior to the accident and there was evidence of poor

school attendance and that he was easily led. Nevertheless, the trial judge was

not prepared to write off an 11-year-old boy and rejected the Defendant’s

submission that the Claimant was unlikely to obtain or retain employment,

assessing his earnings on the basis of ASHE figures for elementary occupations

discounted by 33%.

• In addition, the case of Kennedy v London Ambulance Service NHS Trust

[2016] EWHC 3145 illustrates the low hurdle adopted by the courts in relation to

the threshold requirement of “disability” under the Equality Act 2010.

• As an illustration of a factor specific approach to loss of earnings, see now Swift

v Carpenter (paragraphs 96-111).

32

E. The Discount Rate

A lecture in itself, but note:

• The Government’s September 2017 indication (soon effectively withdrawn) that

“While it is difficult to provide an estimate, based on currently available

information if the new system were to be applied today the rate might be in the

region of 0% to 1%.”

• The review of the Discount Rate is finally officially underway, having started on

19th March 2019, and therefore must be concluded by 5th August 2019. The

new rate (if it changes!) will then be announced. Note that at least two major

insurers, Admiral and Aviva, are publicly predicting a 0% rate.

• By way of comment, if the foundational (and arguably compelling) rationale

originally outlined by Lord Steyn in Wells v Wells (based as it was on the views

of the Ogden Working Party and the Law Commission), as to why it is

reasonable for a Claimant to invest safely in ILGS still holds good, and if the

MoJ was serious in its claim that the new proposals will not affect the underlying

principle of full compensation, how is it justifiable that the Government Actuary

Department’s paper ‘Personal Injury Discount Rate Analysis’ dated 19th June

2017 accompanying the draft legislation indicated that, when the necessary

reduction of about 0.5% for tax and investment management charges is

factored in, at a Discount Rate of 0% around 26% of claimants would be under-

compensated and at +0.5% around 41% would be under-compensated, with

the implication that a far greater proportion, potentially over 50%, would be

undercompensated at +1%?

• The need in the meantime to plead (and evidence) all funding methods,

including a claim for the full capital purchase costs with a reversionary interest

(unpopular), a modified Roberts v Johnstone calculation at e.g. 2% (arguably

contrary to authority), interest only mortgage costs (problematic, speculative

and excessive), and increased rental costs (difficult in terms of securing and

modifying rental properties, security of tenure/factoring in multiple moves and

figures exceeding outright purchase costs over a long life expectancy).

33

• See below at Appendix 5 the full text of Lambert J’s reasoning for granting

permission to the Claimant in October 2018 to appeal to the Court of Appeal in

Swift v Carpenter [2018] EWHC 2060 (QB) (06 July 2018). Watch this space!

F. Part 36

In the meantime, note the implications for Part 36 offers; see the cases of Downing v

Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216

(QB), at paragraph 61 (the necessity for something about the particular circumstances

of a case which permits a departure from the norm on the ground that it would be

“unjust” not to do so, as opposed to making an exception because the Part 36 regime

produces a harsh or unjust result).

See also Smith v Trafford Housing Trust [2012] EWHC 3320 (Ch), at paragraph 13

(burden on a Claimant who has failed to beat a Defendant’s Part 36 offer to show

injustice is “a formidable obstacle to the obtaining of a different costs order”, in order

to avoid undermining the purpose of Part 36.

In July 2017, see Marsh v MOJ [2017] EWHC 1040 (QB), in which Thirwal LJ awarded

indemnity costs only from the date of the Claimant’s second Part 36 offer of £180,000

in October 2016, rather than from his first Part 36 offer of £223,500 in March 2014,

since the award of £286,000 at -0.75% could be recalculated to a value of £217,500

at +2.5%.

34

Conclusion

“The difference between the QC and the surgeon is that the QC turns to his

junior and says: “Have I left anything out?” ...”

Lord Denning

Questions?

ATLA Award for Witness Management:

Attorney to witness: All your responses must be oral, okay?

(Witness nods)

Attorney: What school did you go to?

Witness: Oral.

Chris Bright QC

No5 Chambers

Birmingham-Bristol-London-Leicester

+44 (0) 845 210 5555

cbr@no5.com

35

Clinical Literature on Life Expectancy

The Life Expectancy Project - David Strauss, Robert Shavelle and Jordan Brooks

http://www.lifeexpectancy.org/index.shtml

Cerebral Palsy

Wright CM, Reynolds L, Ingram E, Cole TJ, Brooks J (2017). Validation of US cerebral palsy growth charts using a UK cohort. Developmental Medicine & Child Neurology, 2017 Jun 28. doi: 10.1111/dmcn.13495.[Epub ahead of print]

Brooks JC, Strauss DJ, Shavelle RM, Tran LM, Rosenbloom L, Wu YW (2014). Recent trends in cerebral palsy survival. Part I: period and cohort effects. Developmental Medicine & Child Neurology, 56:1059-1064.

Brooks JC, Strauss DJ, Shavelle RM, Tran LM, Rosenbloom L, Wu YW (2014). Recent trends in cerebral palsy survival. Part II: Individual survival prognosis. Developmental Medicine & Child Neurology, 56:1065-1071.

Traumatic Brain Injury and Anoxic Brain Injury

Groswasser Z, Peled I (2017). Survival and mortality following TBI. Brain Injury, DOI: 10.1080/02699052.2017.1379614.

Shavelle RM, Brooks JC, Strauss DJ, Paculdo DR (2015). A note on survival after anoxic brain injury in adolescents and young adults. NeuroRehabilitation, 36:379-382. DOI:10.3233/NRE-151226.

Brooks JC, Shavelle RM, Strauss DJ, Hammond FM, Harrison-Felix CL (2015). Long-term survival after traumatic brain injury. Part I: External validity of prognostic models. Archives of Physical Medicine and Rehabilitation, 96:994-999.

Brooks JC, Shavelle RM, Strauss DJ, Hammond FM, Harrison-Felix CL (2015). Long-term survival after traumatic brain injury. Part II: Life expectancy. Archives of Physical Medicine and Rehabilitation, 96:1000-1005.

Brooks JC, Strauss DJ, Shavelle RM, Paculdo DR, Hammond FM, Harrison-Felix CL (2013). Long-term disability and survival in traumatic brain injury: Results from the National Institute on Disability and Rehabilitation Research Model Systems. Archives of Physical Medicine and Rehabilitation, 94:2203-2209.

36

37

38

Appendix 3

SIGAM Mobility Grades in Prosthetic Rehabilitation

(The Special Interest Group in Amputee Medicine)

Reference: Ryall NH, Eyres SB, Neumann VC, Bhakta BB, Tennant A, The SIGAM

mobility grades; a new population-specific measure for lower limb amputees: Disability

and Rehabilitation 2003;25;15:833-844

Grade Disability Definition

A Non Limb User Those who have abandoned the use of an

artificial limb or use only non-functioning

prosthesis

B Therapeutic Wear prostheses ONLY in the following

circumstances; for transfer, to assist nursing,

walking with the physical aid of another OR

during therapy

C Limited/Restricted Walks up to 50m on even ground with or

without walking aids; a=frame, b=2

crutches/sticks, c=1 crutch/stick, d=no walking

aids

D Impaired Walks 50m or more on level ground in good

weather with walking aids; a=2 sticks/crutches,

b=1 stick/crutch

E Independent Walks 50m or more without walking aids except

to improve confidence in adverse terrain or

weather

F Normal Normal or near normal walking

Appendix 4

For general damages for amputation, see the Judicial College Guidelines (14th

Edition):

- Amputation of arms (pages 47-49)

- Hand(s) (pages 52-53)

- Finger(s) (pages 54-55)

- Thumb(s) (page 56)

- Amputation of leg(s) (pages 62-64)

- Foot/feet and toes (pages 71-72)

39

Appendix 5

Text of Lambert J’s reasoning for granting permission to the Claimant in October 2018 to

appeal to the Court of Appeal in Swift v Carpenter [2018] EWHC 2060 (QB) (06 July 2018).

The Claimant underwent a below knee amputation as a consequence of injuries sustained

in a road traffic accident. Liability was admitted and the matter came before me as a

damages action. Many heads of loss were in issue.

Permission was sought and granted in respect of one head of loss only: the additional

capital accommodation costs associated with the Claimant's disability. I found as a fact

that the value of the house now needed by the Claimant was £900,000 more than the

value of the house she would have needed. This was largely due to the need for a bigger

house (so a lift could be installed) and the fact that the Claimant had lived in a desirable

and expensive part of West London and was reasonably entitled to continue to live in a

pleasant area.

Given the current negative discount rate of (-0.75%) the application of the Roberts v

Johnstone formula would result in a nil award in respect of this loss.

The Claimant argued that I should adopt a different approach: 4 contenders were

advanced (based on mortgage interest rates, cost of rental, use of 2% discount rate for

calculation of the multiplicand). I found that I was bound by the Court of Appeal's

judgment in Roberts v Johnstone and awarded no damages. I expressed no view on the

Judge's signature merits of the various approaches which were put forward, although I noted

that no expert evidence had been provided to me in respect of future trends in interest-only

mortgage rates.

So far as I am aware, this is only the second time that the Roberts formula has been

40

challenged since the introduction of the negative discount rate. In JR v Sheffield

Teaching Hospitals NHS Foundation Trust [2017) EWHC 1245 QB, the issue was raised

before William Davis J: he too found that he was bound by Roberts v Johnstone, gave

permission but the appeal was compromised. P.I.B.A intervened in that appeal and

provided written submissions.

I granted permission as there exists an, in my view, important point of principle which

the CA needs to resolve; that is, whether the Roberts v Johnstone formula remains

consistent with the principle of full restitution. Even though the current discount rate

may increase such as to produce some relatively modest damages in respect of the

additional capital costs of accommodation in this case, the application of the formula

produced anomalous results even when the discount rate was 2.5%. Tomlinson LJ in

Manna v Central Manchester University Hospitals NHS Trust [2017) EWCA Civ 12

noted the various scenarios in which the shortfall between the damages awarded and the

sum needed to fund the property may be so great that the property could not be

purchased. Although therefore whilst historically Roberts v Johnstone has been regarded

as a practical, if imperfect, solution to the difficult problem of reasonable (but not over)

compensation when a claimant is intended to purchase an appreciating asset, there is a

real issue now as to whether the formula remains fair and fit for purpose in the current

economic climate of high housing prices, low interest rates and the use of PPOs for the

delivery of damages for care.

I am aware that the status of the formula is the subject of considerable debate amongst

personal injury lawyers. Claims are frequently compromised on a half measure basis and

there is a real need for certainty one way or the other.

41

Appendix 6

The Guardian Available for everyone, funded by reader UK news

Meningitis boy's £4.5m damages Tue 30 Nov 1999

A boy who suffered severe brain damage after doctors at Stafford general hospital failed to diagnose meningitis when he was six months old was yesterday awarded damages of more than £4.5m.

The high court was told that Andrico Milloshas, now eight, of Sutton Coldfield, West Midlands, developed epilepsy and was also prone to violence and unpredictability.

South Staffordshire health authority admitted liability for his condition at the high court sitting in Birmingham.

The award by Mr Justice Gray of £4,548,244 is believed to be among the highest medical negligence payouts, a health authority spokesman said.

Andrico's mother Elizabeth, 31, wept as the judge made his judgment and at one point had to leave the court.

Simeon Maskrey QC, for the family, said Andrico was unable to concentrate and had no ability to learn as a result of the blunder.

The court was told that he was big for his age, 5ft tall, and wore clothes of children twice his age, he was strong and powerful and could lash out violently.

He was difficult to manage and needed two carers used to dealing with adults to look after him.

Mrs Milloshas, 31, who also has a daughter, five, and a son, two, had devoted her life to caring for her elder son, the court was told.

She told how when her daughter was a baby she had often been forced to "lock herself in the kitchen" to stop Andrico snatching the child out of her arms. She could not take him anywhere in the car because he would try to climb on to her shoulders to sit on her lap.

42

As part of the award Mr Justice Gray allocated more than £200,000 for the family to buy a hydrotherapy pool after hearing medical evidence that swimming helped to relax Andrico, but that trips to the swimming baths were not always possible because of his condition.

INDEPENDENT

Health Editor Jeremy Laurance @jeremylaurance

Tuesday 30 November 1999

An eight-year-old boy who suffered brain damage after doctors failed to diagnose

meningitis when he was six months old was awarded record damages of more

than £4.5m yesterday.

An eight-year-old boy who suffered brain damage after doctors failed to diagnose

meningitis when he was six months old was awarded record damages of more

than £4.5m yesterday.

The award to Andrico Milloshas of Sutton Coldfield, West Midlands, is equal to

the largest ever made against the NHS and highlights the growing financial

pressure from medical negligence claims.

The size of awards has escalated since a decision by the House of Lords last year

which changed the way the financial calculation for future needs is made.

Yesterday, a second award of £3.3m was made to a nine-year-old boy, Edward

Parry, who was brain damaged after being starved of oxygen during his birth at

St Peter's Hospital, Chertsey, Surrey.

In Andrico Milloshas's case, the court was told he developed epilepsy as a result

of brain damage and was also prone to violent and unpredictable behaviour after

being misdiagnosed at Stafford General Hospital.

His mother Elizabeth, 31, wept as she described having to hide in the kitchen with

her younger daughter to stop Andrico snatching the child out of her arms. The

court was told that Andrico was strong and powerful and could lash out violently,

he needed two carers used to dealing with adults to look after him.