HS v Lancashire Teaching Hospitals NHS Trust

Published 1 octubre 2015

Mr Justice William Davis considered the claim of eight year old who had suffered a catastrophic head injury. Liability had been admitted by the Defendant in respect of negligent failure by the paediatricians to recognise and to treat a streptococcal infection leading to meningitis. HS was profoundly impaired. She was quadriplegic with bilateral spastic cerebral palsy, behavioural difficulties and almost blind. She had no independent mobility, limited sitting ability, double incontinence, as well as profound cognitive impairment and limited awareness. She would never be able to live independently or work.

Losses sustained to the date of hearing had been agreed. Key matters for consideration by the Court were:

• The amount recoverable for future care;
• The amount recoverable for case management;
• The sum recoverable for the additional cost of holidays cause by the HS's disability;
• Whether the cost of a hydrotherapy pool was recoverable.

Care

The Court was satisfied that two full-time carers during the day was recoverable both immediately and through HS's remaining childhood and teenage years, and that the parents could not be expected to provide this care as they would have other burdens. HS's care needs were likely to increase as she grows.

The Court was also satisfied that there was the need for a second sleeping night carer in addition to a waking night carer. The latter was not in dispute, but the Defendant had rejected this proposal for a sleeping night carer on the basis that sleep diaries showed that the number of nights on which a second carer was called on, showed a downward trend. The Court rejected this. HS's behaviour was so unpredictable that looking at trends was inappropriate.

Case Management

The care expert instructed for HS argued for case management of 10 hours per month with 20 hours contingency per annum. Such cost would be constant through HS's life. The Defendant argued that the cost of case management would be less once carers were employed directly, that there was no justification for the annual contingency and that whilst the case management hourly rate was agreed, the hourly rate for travel and hours of travel were too high.

The Court accepted that case management costs would vary dependent on how they were provided. The contingency figure was bound to be a guestimate and the difference in travel costs was modest. Whilst the current case manager estimated ongoing case management costs at £17,000 per annum, on the totality of both parties' expert evidence, case management costs to HS's 19^th birthday would be £12,094 per annum and £15,360 per annum thereafter.

Holidays

There was no dispute that any holiday that HS would take would cost more than if she were able bodied. Her parents returned to India for 4-6 weeks each year during the school summer holiday to visit their extended family. The additional cost of this trip caused by HS's disability was pleaded as £4,000 per annum and an additional £2,897 for other holidays within the UK.

The Defendant argued that such trips would become impossible as HS grew older and that the cost for additional holidays had been exaggerated. If the trips to India were to occur then this would inevitably have a knock on effect on the recoverability of future care costs with some deduction applied to the care package.

The Court accepted that there was uncertainty as to where HS would take her holidays in the future. However she was entitled to the additional cost of those holidays irrespective of where they would be and therefore it was not necessary or appropriate to carrying out a discounting exercise of the care claim. £5,000 per annum was allowed.

Hydrotherapy pool

The test for the Court was whether the claim advanced reflected HS's "reasonable requirements" or "reasonable needs" arising from her disability. The question to be considered was the extent to which HS would use the pool particularly as she grew older, the extent to which her siblings would use it with her, and what other alternatives were available.

The Court accepted that in the early years the pool would be used together with her siblings. Use of the pool would decrease as she grew older and likewise the siblings would use it with her less. There was a private facility 40 minutes away that she could use. In the circumstances the Court rejected the provision of a hydrotherapy pool in HS's home as reasonable, but the costs of twice weekly visits to a private facility was reasonable and proportionate.

Total damages of £3,592,336 were awarded.