HS v Lancashire Teaching Hospitals NHS Trust [2015] EWHC 1376 (QB)

Case No HQ13X05988

[2015] EWHC 1376 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15/05/2015

Before

MR JUSTICE WILLIAM DAVIS

Between

HSClaimant

Lancashire Teaching Hospitals NHS TrustDefendant

Mr William Featherby QC and Mr David Kenny (instructed by Linder Myers) for Claimant

Ms Margaret Bowron QC (instructed by Hempsons Solicitors) for Defendant

Hearing Hearing dates: 20-22 April 2015

Judgment

[1]This is a clinical negligence claim arising out of the post-birth management of the Claimant HS at the Defendant’s hospital in Preston in October 2006. 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.

[2]The Claimant sues by her mother and litigation friend JS. HS is now 8 years old. She will never have any capacity to manage her own affairs as an adult.

[3]The action was commenced in September 2012. Liability was admitted in a letter from the Defendant’s solicitors dated the 24th September 2013. The hearing before me has been concerned purely with issues relating to recoverable damages. Various heads of claim were agreed in advance of the hearing. I shall deal with the application to approve the agreed sums at the conclusion of this judgment. I was required to determine various matters relating to future loss, the most significant issue being the appropriate measure of damages for the cost of future care.

The current condition of HS

[4]HS is subject to three principal abnormalities. First, she has bilateral spastic cerebral palsy. This means that she has no independent mobility. She can move her body a little, she has some uncontrolled arm movements and she has a limited degree of sitting ability. Thus, she is entirely dependent on others for all aspects of daily living. HS is doubly incontinent. There is no prospect of any improvement in motor functions. It is highly likely that, notwithstanding proper physiotherapy, HS will develop significant contractures and deformities in the future.

[5]Second, HS is profoundly retarded developmentally. She has profound cognitive impairment. She has no speech and very limited ability to interact with her environment. She functions at about the level of a one year old child but without the rapid developmental background of such a child. This will be the permanent position. She manifests serious behavioural problems. These have improved with the input of full time professional carers but the potential for them will remain. The management of them can be improved further with psychological intervention.

[6]Third, HS’s sight is very limited. She can recognise people with whom she is familiar. She will watch television though this is likely to be as much an aural stimulus as a visual engagement.

[7]No improvement in HS’s condition is expected. She is at risk of epilepsy but this will be controllable with medication. Her life expectancy has been substantially reduced. She is likely to survive until she is 49.

The position to date

[8]HS lives at home with her mother, father and two younger siblings. Her mother is a registered nurse. She works at the same hospital where HS was born. Her father AS works as a machine operator. They were married in 2000 in India which is the country of their birth. JS came to the UK in 2002 and was joined by her husband in 2003. Both have worked throughout their time in this country. They are settled here. Their two other children are ES born in December 2010 and CS born in October 2012. They are normal healthy children.

[9]Until 2014 HS’s care was provided by her parents at the then family home. The family home was a three bed roomed house in Ribbleton, a suburb on the north eastern outskirts of Preston. Although some alterations were carried out by the local authority e.g. a lift giving access to the bedroom used by HS, the accommodation was quite unsuitable for the care of someone as disabled as HS. JS and AS only had limited assistance from outside carers i.e. one carer coming in for an hour and a half on weekdays before HS went to school and a carer providing assistance for a similar period when HS returned from school. They also had respite care for two hours on a Sunday morning. Otherwise, the very demanding care needs of HS were met entirely by her parents. They had two other very young children to care for and they had to maintain their working lives as best they could. Not surprisingly both found the situation hugely difficult. JS said that they were completely exhausted the whole time. AS’s evidence was that he did not know how he and his wife survived with the very limited assistance they had. It is greatly to their credit that throughout this time they maintained the family home and provided HS with expert and loving care.

[10]From March 2014 a much more comprehensive outside care regime was introduced, the funds for this now being available from interim payments. Two carers now are employed full time during the day i.e. mornings and evenings on school days and throughout the day at weekends and school holidays. A further carer covers the nights. In September 2014 the family moved to a larger home in Preston. This has been adapted to provide proper downstairs accommodation for HS and facilities for her carers. Again this has been funded from interim payments.

[11]In early September 2014 HS underwent surgery to stabilise her left hip. She recovered relatively quickly from the operation. She was in a spica cast for about six weeks. The surgery has been successful. However, there is a significant risk that in the near future she will require stabilisation of the right hip.

[12]The losses sustained to date have been agreed. I shall return to them at the conclusion of this judgment.

The issues in dispute

[13]The matters on which my decision is required are as follows:• The amount recoverable for future care. There are various aspects of future care which are in issue with closer agreement between the parties on some than on others.

• The amount recoverable for case management.

• The proper figure for loss of earnings.

• The sum recoverable to cover the additional cost of holidays caused by HS’s disability.

• Whether the cost of a hydrotherapy pool at HS’s home is recoverable. I have established the principles to be applied in each instance. Having been informed of my conclusions via an initial draft judgment, the detailed calculations have been carried out by the parties. The resulting figures together with the agreed sums appear in the schedule annexed to this judgment.

Future care – issues of principle

[14]I shall deal first with care during the day. There is an issue as to whether the division between day and night care should be 12:12 or 14:10 i.e. when HS is an adult. That is a matter to which I shall have to return. (There is agreement that the division should be 12:12 until she reaches adulthood.) The significant dispute is as to the level of care recoverable until HS reaches the age of 19. Her case is that she should recover the cost of two full time carers throughout the day for the whole of that period. The Defendant’s case is that until HS reaches the age of 11 the cost of only one full time carer will be recoverable. From that point until HS reaches the age of 19 the Defendant contends for one full time carer with a second carer for part of each day. Thereafter it is agreed that there will have to be two full time day carers.

[15]In making her case HS relies first on the fact that the current deployment of carers is two full time carers during the day. This is the regime put in place by her parents as their preference. Second, it is argued that JS and AS have full time jobs and two other small children for whom they have to care and that the difficult and varied care needs of HS would place too great a burden on them even if they were to act only as a second carer. Third, both of them have suffered from carpal tunnel syndrome. Although it has been treated, it is the kind of muscular skeletal condition which would be liable to be worsened by manual handling as involved in the care of HS. Fourth, although a second carer might not be occupied the whole of the time with the care of HS, events requiring a second carer are completely unpredictable and could occur at any time of the day. When they do occur, the second carer has to be on hand there and then. There will be many occasions when neither JS nor AS is available. Finally, reliance is placed on the evidence of JS and AS. Each has described the burden of caring for HS until the care regime was introduced in March 2014. Both have said that they do not want to return to the position of being responsible for HS’s hands on care even as the second carer being called on from time to time. They want to be able to work full time and to have a proper opportunity to care for the younger children.

[16]Mr Featherby Q.C. on behalf of HS relied on the judgments of Lloyd Jones J (as he then was) in A v B NHS Trust

[2006] EWHC 1178

and H.H. Judge Mackie Q.C. in Wakeling v McDonagh

[2007] EWHC 1201

in support of the proposition that HS is entitled to recover what is reasonably necessary for her proper care and that, if that means the provision of care is not always utilised to full capacity, this is something the Defendant must bear. He invited the acceptance of two propositions: a Claimant is entitled to the damages required to meet that which is reasonably necessary; a reasonable choice to meet that need as made by or on behalf of a Claimant is (or, as he refined it in oral argument, can be) decisive. He submitted further that the Defendant as a tortfeasor is not entitled to say to HS’s parents “you must help us out”.

[17]Miss Bowron Q.C. did not argue that HS currently does not require two carers from time to time during the day. Rather, she submitted that in cases of this kind it is usual for there to be stepped changes in the level of professional care, those steps corresponding with the child achieving secondary school age and the age at which compulsory full time education ceases. Her argument was that such gradation is justified by the fact that parents in any event maintain a supervisory role for their children, in particular up to the age of 11. Moreover, if HS’s parents were to take no appreciable part in her care from this point onward, that would remove them unreasonably and unrealistically from HS’s daily life. Miss Bowron Q.C. accepted that the parents had given evidence to contrary effect. She argued that, on reflection and in reality, the parents would assume a second carer’s role. Until the age of 11, one of the parents would be the only second carer. Thereafter, two professional carers would be in place but some part of the second carer role would be taken by one of the parents.

[18]I am satisfied that the cost of two full time carers during the day is recoverable forthwith and throughout HS’s remaining childhood and teenage years. The facts of every case are different. Here the Claimant is profoundly disabled. Any kind of movement of her requires the attendance of two carers because of her disability and the potential for behavioural disturbance. The points at which two carers might be necessary will be wholly unpredictable. It is unrealistic to suppose that one of the parents necessarily would be available at the relevant point. Both aim to work full time albeit on differing shift patterns. There are two other young children with whom they will be concerned. The kind of care which HS requires is light years away from the supervisory role which would be required for a child between the ages of 8 and 11. Even though HS is only 8 years old, I am satisfied that a regime of two full time carers is necessary and proportionate. I am further satisfied that, in the particular factual circumstances of this case, JS and AS will maintain that arrangement.

[19]The Defendant’s argument accepts that significant input from a second professional carer is justified from the age of 11. It is said that some care can be expected to be provided by the parents. I reject that view. The other burdens on JS and AS will not diminish as HS grows older. The difficulties involved in HS’s care if anything will increase as she grows. I am satisfied that the hours of professional care put forward by the Defendant for the teenage years are not sustainable. The same provision of professional care will be required throughout.

[20]Until the commencement of the trial there was a very significant dispute as to the level of night care required. On behalf of HS it was said that a waking night carer was required because of HS’s tendency to wake regularly during the night and to become distressed or disturbed if not attended to immediately. The Defendant’s case was that a sleeping night carer would suffice. That position changed as a result of the Defendant’s care expert considering sleep diaries maintained by HS’s current carers from the middle of October 2014 to the middle of February 2015. These demonstrated that a waking night carer was required. However, the need for a second night carer – to be employed as a sleeping night carer – remained in dispute.

[21]There is no doubt that for the period covered by the sleep diaries – as confirmed by the evidence of JS – HS from to time required the attendance of two carers at night. The figures from the diaries as to the number of nights on which a second carer was called on were as follows: October (from the 12th) – 8; November – 13; December – 18; January – 7; February (to the 16th) – 3. Miss Bowron Q.C. argued that this showed a downward trend which ought to be taken into account in any assessment of the need for a second carer at night. I do not consider that the available material is sufficient to warrant any proper conclusion on a statistical trend. The period over which the data was collected was limited. The most one can say is that there was an appreciable spike in December. In any event HS’s pattern of behaviour is so unpredictable that the concept of a trend is not particularly apposite. It also was argued that HS will be provided with psychological input to improve her sleep patterns which will reduce night care requirements. I note that this argument has not prevented a concession by the Defendant that a second night carer will be required once HS is an adult. Miss Bowron’s closing submission accepted that psychological input to a girl as disturbed as HS would probably only achieve a modest improvement. I am satisfied that the need for a second night carer will be constant throughout HS’s life and that there must be provision for such care from this point onward.

[22]The issue then is the identity of the second night carer until HS is 19. Miss Bowron Q.C. submitted that it was reasonable and proportionate to expect the parents to accept this role until that point. It was argued that this would increase the chances of something approaching normal family life. Miss Bowron Q.C. submitted that the waking night carer would be able to deal with all issues “for the vast majority of nights”. Insofar as that submission relies on support from the so-called trend in the sleep diaries, I conclude (for the reasons already given) that it is misconceived. Even if it were to be accepted that the data suggested that a second carer now could be expected to be called on 6 or 7 times a month, I do not consider that this equates to the waking night carer being able to deal with HS alone “for the vast majority of nights”. Miss Bowron Q.C. also argued that waking to deal with a disturbed child at night is all part and parcel of being a parent. That of course is correct. But any parent who was disturbed to a significant degree by a child aged 8 as often as HS requires two carers during the night would regard himself or herself as extraordinarily unfortunate. Moreover, the nature and extent of the disturbance on any given night is very different to that experienced by the parents of a normal healthy child even if that child’s sleep is disturbed. I am satisfied that it is reasonable and proportionate for a second night carer to be provided as a sleeping night carer.

[23]A sleeping night carer is not paid at the same rate as a waking night carer. It is expected that such a carer will be disturbed from time to time. If the disturbance on a given night reaches a certain level there will an ex post facto uplift to the rate paid to the waking night carer for that night. The evidence on when that point would be reached was unsatisfactory. The evidence of the care expert instructed on behalf of HS was that a sleeping night carer would have to have 6 unbroken hours sleep in a night for the basic rate still to apply. I find that evidence difficult to accept. It would mean that the uplift would apply in an arbitrary fashion. The Defendant’s expert suggested that two or possibly three disturbances a night would be within a sleeping night carer’s expectations. This view avoided arbitrariness but at the expense of uncertainty as to when the uplift would apply. This issue is of significance because the likely frequency of uplifts must be reflected in a head of damage. The expert instructed on behalf of HS referred to it as a contingency. Whatever it is called, it must be quantified on a sound basis.

[24]Analysis of the sleep diaries shows that some of the occasions on which a second carer was required were such that no uplift would have been payable however it might be calculated e.g. 15th October – “good night after the first two hours” – and 9th November – “slept right through” (after about 11 p.m.). There were other occasions where the sleeping night carer would not have had 6 hours uninterrupted sleep e.g. 8th November – HS required two carers for about half an hour at 2.30 a.m. – but on any sensible view no uplift would have been appropriate. I conclude that the number of nights covered by the sleep diaries on which a sleeping night carer would have been entitled to an uplift would have been relatively limited. At one stage it was argued that the contingency figure should be based on 19 weeks’ payment of the uplift. In closing Mr Featherby Q.C. conceded that this was excessive and reverted to a figure of 12 weeks. I am satisfied that this would involve over-recovery by HS. The figure for those nights when for which an uplift will be payable should be based on a total of four weeks substantial disturbance over the course of a year. That is a fair reflection of the detailed information set out in the sleep diaries.

[25]As already indicated the Defendant conceded that a sleeping night carer would be necessary once HS was an adult. It was argued on behalf of HS that the contingency uplift figure should remain at 12 weeks for the duration of her life. For the reasons already given I reject that view. Moreover, the sleeping night carer’s uplift for four weeks per year for period up to HS’s 19th birthday is based on the night care being provided for 12 hours in every 24 hours. Would that uplift continue to be appropriate if the division between day and night care in adulthood moved to 14:10 which is the basis of the calculation put forward by the care expert instructed on behalf of HS? In my view it would not. The sleep diaries, though they are limited in their scope, provide the best evidence of the nature of the current disturbance. That is the only basis for estimating the pattern of disturbance in the future. It is clear that removal of 2 hours from the period during which the night carers have the responsibility of care would make a significant difference to the extent to which a second carer would be required to assist. In turn that would reduce the number of occasions on which an uplift would be payable. I consider that a contingency uplift figure based on payment for 2 weeks per year will be appropriate if the day/night division moves to 14:10.

[26]In one sense whether the division between day and night care when HS is an adult is 14:10 or 12:12 is a purely arithmetical issue. However, it needs to be resolved by reference to some factual basis. I consider that the 14:10 division will be appropriate. Although HS as an adult will not function as such, the longer day is appropriate for an adult. Provision of two on-duty carers for 14 hours will provide better care for HS at the beginning and the end of each day.

[27]These findings deal with the issues of principle concerning care provision. To summarise, the position is this:• Two full time carers during the day to be provided from this point onwards.

• One waking night carer and one sleeping night carer to be provided from this point onwards.

• Recovery of a contingency uplift figure to allow for disturbance of the sleeping night carer equivalent to 4 weeks per year until HS is 19 and 2 weeks per year thereafter.

• The division between day and night care to be 14:10 after HS’s 19th birthday. It is agreed that care provision until HS is 19 will be on an agency basis. Thereafter there will be a team employed directly to care for HS. There is one minor issue relating to care provision which is linked to the prospect of HS spending 3 to 4 weeks each year on a family trip to India. I shall deal with that when considering the recoverability of the cost of such trips. The schedule annexed hereto is based on these findings of principle. The relevant hourly rates are agreed.

Future care – miscellaneous issues

[28]The Defendant’s care expert’s revised care figures include a figure of 3 hours per day family support until HS is aged 19. This is based on the assumption that the parents act as second day carer until HS is 11 and as second night carer until she is 19. That assumption is not applicable given my findings as to the recovery of the cost of full time care. Nonetheless, some family support will be recoverable at a modest level. The amount of family support will change as HS grows older and it will vary from time to time. No precise mathematical calculation is possible. I assess the annual figure for family support until HS is 19 in the sum of £5,500. From HS’s 19th birthday that annual figure will reduce to £2,500.

[29]In relation to the period until HS’s 19th birthday the other recoverable items are as follows. £1,642 will be recoverable annually for domestic support. £1,875 will be recoverable each year in relation to expenses. (This figure is that put forward on behalf of HS. The Defendant’s figure is £11 less than this.) A sum will be recoverable to cover training. Although the care will be provided by an agency which can be expected to supply trained care workers, HS’s needs are particular and unusual. Some additional training will be required. I consider that the figure put forward on behalf of HS is excessive. The training will be a case of familiarisation of the care workers with HS’s particular needs rather than a requirement for significant additional learning. An annual figure of £1,500 will be recoverable.

[30]When HS is 19 and a care team is employed directly, there will be additional costs. I have already dealt with the figure for family support for HS’s adulthood. ERNIC will be recoverable. The figure is a mathematical calculation derived from the employment costs; those costs are as identified by the parties. The annual figure for insurance is £135 and for pension £2,500. The annual expenses figure will be £3,128.40. (Again this is the figure put forward on behalf of HS. In this instance the Defendant’s expert suggests a slightly higher figure.) The training costs will be greater when the care workers are hired directly. There are likely to be carers engaged who require genuine training rather than engagement with HS and her needs. The figure put forward by the care expert instructed on behalf of HS is based simply on a percentage of the total care package. The figure argued for by the Defendant is rather less and is not supported by any particular rationale. I have no clear evidence on which to base a proper calculation of the annual training costs of directly hired care workers. Doing the best I can based on the likely recruitment I conclude that an annual figure of £4,000 will be recoverable. There is some dispute as to the annual cost of recruitment (to include DBS expenses) and the payroll/accountancy costs each year. It is not necessary to analyse the competing arguments. I assess the former cost at £2,000 per annum and the latter at £1,000 per annum. The final issue in relation to the recovery of care costs for the period after HS’s 19th birthday relates to the appropriate uplift (based on hours per week) of the team leader. The difference between the parties is marginal. On behalf of HS an uplift of 37.5 hours per week is sought. The Defendant argues for 30 hours per week. Again it is not necessary to examine the competing arguments. The team leader uplift will be recovered on the basis of 33.5 hours per week.

[31]The care expert instructed on behalf of HS puts forward a contingency cost calculated as 5% of the care package once the directly employed care team is in place. This contingency is said to be required in order to cover holidays, sickness and other unexpected and sudden absences on the part of the employed care workers. I consider that this proposed cost is not recoverable. The calculation of the care package is based on a 60 week year for each carer. This is intended to deal with holidays (approximately 5 weeks per year) and sickness. Any maternity leave will be funded from the public purse given the number of employees. Any other absences will almost certainly be accommodated with the carers’ shift patterns.

[32]My conclusions on the various miscellaneous issues have been incorporated in the schedule as referred to above.

Case management

[33]A case manager has been in place since October 2013. In the period up to the hearing the case management costs have been over £51,000. This level of expenditure is explicable by reference to the fact that, prior to the introduction of the case manager, JS and AS had been coping with all aspects of HS’s care and management without any significant outside assistance. In the period after the case manager was appointed an entire care package was set up and HS and her family moved into accommodation which had to be adapted. The case management costs to date represent an annual figure of some £34,000. The case manager suggests that hereafter the annual cost can be halved i.e. an annual figure of around £17,000. The appropriate figure for case management thus far is not for me to determine since it has been agreed between the parties. I shall consider it when dealing with the issue of approval. What is in issue is the level of case management recoverable from this point onward.

[34]The care expert instructed on behalf of HS argues for a continuing case management cost based on 10 hours per month plus 20 hours contingency per annum. It is said that this cost will be constant throughout HS’s life. The annual figure is £17,260. The Defendant argues that this figure is too high. First, the extent of case management required whilst HS’s care package is provided by agency carers will be less than when the carers are employed directly because functions which might have been undertaken by the case manager will fall within the remit of the relevant agency. Second, there is no justification for an annual contingency at the level suggested. Third, whilst the hourly rate for case management itself is agreed, the Defendant contends that both the hourly rate for travel and the hours of travel put forward on behalf of HS is too high.

[35]I consider that there is force in the argument that the case management cost should not be the same irrespective of how the care package is delivered. If an agency is supplying the carers, there is 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 is bound to be a guesstimate rather than evidentially based and the difference in relation to travel costs is modest. Whilst I do not ignore the fact that the letter from the current case manager indicates a likely continuing case management cost in the region of £17,000 per annum, I must also have 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 I conclude that the future care management cost until HA’s 19th birthday will be £12,094 per annum with an annual cost thereafter of £15,360.

Loss of earnings

[36]There is no dispute about the recoverability of loss of earnings. HS will never be capable of any work. Had she been treated properly by the Defendant, she would have would have been able to pursue whatever occupation or career for which her intellectual and other capabilities suited her. What those capabilities would have been is very difficult to say. Albert Reid, a jointly instructed educational psychologist, concluded that HS probably “would have functioned within the average to good average range of intellectual ability and likely she would have undertaken tertiary education, potentially leading to a Degree level course with vocational qualification”. With great respect to the expertise of Mr Reid, that view is not based on any true or considered assessment of HS. Given her condition, that would be impossible.

[37]If HS’s siblings were older, there might be some useful information to be gleaned from their progress. Since they are only 4 and 2, there is not. JS is a qualified nurse. Whilst AS works as a machine operative in the UK, his qualifications in India were to post-graduate level. It follows that there is some assistance to be gained from considering the intellectual capacity of the parents. Moreover, they are first generation immigrants to the UK who came here to further themselves and to give their children a better opportunity to progress. Wholesale generalisation of how the children of such families progress would not be a reasonable basis on which the determine HS’s likely path had she not been catastrophically damaged by the Defendant’s negligence. Equally, the ambition of such families for their children is a relevant consideration.

[38]Those who represent HS have been criticised for late introduction of material seeking to increase the base figure for loss of earnings. Given the difficulty in presenting any concrete basis for calculating this loss, I am satisfied that it was appropriate for Mr Featherby Q.C. to put forward a case based on the most recent ASHE figures. The figures were put in to give a guide to the various levels of earnings for different types of occupations as well as the median gross earnings for all female employees. Although particular calculations were prepared based on those figures, the calculations could not be any more than a broad indication of the likely earnings. Miss Bowron Q.C. invited consideration of the impact of student loan finance in the event that I were to conclude that HS would have been educated to degree level. If the circumstances of the case were different – a claimant with a defined educational path who could be expected to attend university in the next few years – student loan finance would be a significant consideration. Here HS’s notional tertiary education is over 10 years away and her educational path is anything but defined.

[39]The various calculations made by the parties provide varying figures between £223,063 and £327,511. At the conclusion of his submissions on this topic Mr Featherby Q.C. suggested that “a round view” of this head of damage might be appropriate. He argued for an award of £300,000 on that basis. I agree with Mr Featherby Q.C. that a relatively broad brush lump sum approach is appropriate. It does leave the risk that HS will be under-compensated. I do not suggest that JS’s initial ambition and hope for her first child – that she should become a doctor – would have been achieved. But it is not wholly unrealistic for her to have harboured that ambition. Had it come to fruition HS’s earnings would have been very much more than the figures set out above. Nonetheless, I consider that Mr Featherby’s proposed lump sum figure is appropriate. I award £300,000 for loss of future earnings.

[40]Miss Bowron Q.C. argued that some modest deduction from any figure for loss of earnings should be made to take account of travelling expenses to get to work. She cited Eagle v Chambers

[2004] EWCA (Civ) 1033

as authority for such a deduction. The Court of Appeal in that case was faced with a judgment in which the judge had made such a deduction. The judgment of Lord Justice Waller did not establish any principle that such a deduction should be made. Rather, Lord Justice Waller declined to interfere with the decision of the judge on the basis that it was not wrong in law. The passage cited by Lord Justice Waller from the decision of the House of Lords in Dew v NCB shows that such a deduction was not to be encouraged. I do not propose to make one for the reasons given in Dew.

Holidays

[41]It is agreed that HS’s disabilities will mean that any holiday that she takes will cost more than were she able bodied. The issue is where she will take her holidays. JS and AS return to India each year to visit the extended family which remains in their home state of Kerala. JS’s evidence was that this trip will occupy around 4 to 6 weeks during the school summer holiday, that being the routine adopted thus far. She said that she and her husband effectively take the entirety of their holiday entitlement in one go to permit the trip to be of this length. The additional cost of the trip to India caused by HS’s disability was not clearly defined. It was pleaded as £4,000 per annum though the evidence of JS suggested that the overall cost was a little more than that. Also pleaded was the additional cost of other holidays i.e. within the U.K. That cost was put at £6,897. Save for evidence of a trip to Alton Towers, I was not told of any such other holidays. If JS and AS use up all of their holiday entitlement in the trips to India, it is not immediately apparent how this additional cost could arise.

[42]Miss Bowron Q.C. argued that the trips to India quickly would become impossible as HS grew older. Thus, the claim for additional holiday costs based on trips to India should not succeed. She also argued that the additional holiday costs are exaggerated, not least because the past holiday costs as claimed fall well short of the pleaded figure. If the trips to India were to occur, there would be a knock on effect on the recoverability of future care costs, in particular whilst the care is being provided by agency staff. For four to six weeks those costs would not be incurred. The cost of care in India is very much less than it is in the UK. Some allowance would have to be made in relation to the care package. The detailed closing submissions of Mr Featherby Q.C. made it clear that the annual discount would be very substantial i.e. rather more than costs of the holiday.

[43]It is impossible to say with any certainty where HS will take her holidays in the future, particularly when she is an adult and when her parents are nearing retirement age. The parents assert confidently that the trips to India will continue but the increasing difficulty of transporting HS and accommodating her in India cannot be ignored. That she is entitled to the additional cost of those holidays wherever they may is not in doubt. Whether that cost will be as much as the pleaded cost is unlikely. I consider that a figure of £5,000 per annum is appropriate to reflect the additional cost of holidays. Since I am not able to say with any certainty where those holidays will be taken, I do not consider it necessary or appropriate to engage in an exercise to discount the care award for time spent in India. If there are holidays in India that may involve a windfall for HS. However, the figure of £5,000 per annum is relatively modest for what one might term ordinary holidays given the severity of the HS’s disability and the problems that it will cause in a holiday setting. Where HS takes her holidays will be a matter for her and her parents.

Hydrotherapy pool

[44]HS’s accommodation as it now is includes a Jacuzzi bath. This is used for purposes other than simple bathing of HS. She enjoys being in the water. The bath is a place in which she can undergo necessary physiotherapy. However, HS claims for the provision of a hydrotherapy pool at her home. This would involve a total cost (including maintenance) of just short of £250,000. It is not said that there is any established therapeutic benefit. The expert evidence – paediatric neurologists, psychologists, orthopaedic surgeon – is unanimous in that view. The claim is put on the basis that HS has few real pleasures in life and that it would be reasonable for her to be provided with something that will give her pleasure for her lifetime. It also is argued that her siblings – at least for the time being – can and will get into such a pool with her and thereby bond better with her.

[45]I have been provided with various first instance judgments in which provision of a hydrotherapy pool has been in issue. With respect to the judges involved I do not intend to cite them seriatim. It is quite clear that none lays down any point of principle. It is sufficient to quote what was said about such cases by Mr Justice Foskett in the very recent case of Robshaw v United Lincolnshire Hospitals

[2015] EWHC 923 (QB)

“I do not, with respect, see those cases as providing any rigid test about what needs to be demonstrated in this context in any particular case. The guiding principle is whether a claim advanced reflects a claimant's "reasonable requirements" or "reasonable needs" arising from his or her negligently caused disability (see paragraph 162 above). I respectfully agree with Judge Macduff that just providing pleasure would not ordinarily be sufficient and some real and tangible benefits would need to be demonstrated. Mr Block and Miss Greaney draw attention to the focus of the argument in Whiten which they suggest was whether any "clinical need" for the hydrotherapy pool was demonstrated. However, what Swift J said was that "a clinical need which cannot adequately be met by physiotherapy exercises carried out in an ordinary swimming pool with suitably trained carers and, occasionally, his treating physiotherapist" had not been established. The claimant in that case could go with his "trained carers [in] a suitably adapted vehicle to [to] a swimming pool at a local private leisure club whenever he wishes to go." For the reasons I have given that option will not be available to James. ” “It does not seem to me that other cases provide the answer to the question in this case. Every case is dependent on its own facts and I would repeat what I said in connection with the issue of access to and manoeuvrability to all parts of James' new home (see paragraph 234 above), namely, that the decision in this case should not be seen as a green light for claiming a home-based pool in every other case. James does have complex needs that do require to be met in ways that may not arise in other cases and merely because an example cannot be found in a previous case does not mean that the provision made in this case is wrong. Very many cases are, of course, resolved without the court being required to adjudicate and it is, therefore, unknown precisely how frequently the issue of a home-based pool is raised and either conceded or recognised to some extent in the overall settlement.”

[46]The relevant questions here are: to what extent will HS use a home pool, particularly when she grows older; to what extent will her siblings go in the pool with her and for how long will this persist; what alternatives are there to a home pool for HS to get access to such a facility; what collateral advantage is there in such alternatives?

[47]I am satisfied that HS would make some use of a home pool were it to be available. I am doubtful whether it would be on anything like a daily basis, particularly on school days. It probably would decrease as she grew older. In the early years I accept that her siblings would engage with her in a home pool. I do not consider that this would be a longer term prospect, particularly as they grow older and have other demands on their time whether academic or social. HS can go to a pool with private hydrotherapy facilities in Bolton which is about a 40 minute drive from her home. JS told me that this facility could be block booked in advance for sessions of an hour and a half every Saturday. I am sure that other similar facilities could be found if Bolton no longer were available or if a session on a day other than a Saturday were to be sought. JS also told me that HS actively enjoys going out in the car.

[48]In the circumstances I do not consider that provision of a home hydrotherapy pool would be reasonable as a specific head of damage in this claim. I consider that the costs of twice weekly visits to a private facility are recoverable. I am satisfied that it is reasonable for these costs to be recoverable for life. It is argued by the Defendant that it is “highly unlikely” that HS will continue such activity every week for the whole of her life. Since she plainly enjoys the activity and she will not give it up of her own volition, I do not accept that argument. The recoverable amount will be in itself a not insignificant sum. Assuming an annual cost of around £5,000 – the precise sum is to be the subject of agreement – the capitalised amount will be around £125,000. I am satisfied that such recovery is reasonable and proportionate.

Agreed heads of damage

[49]There is a number of heads of damage which, subject to approval, have been agreed between the parties. I shall deal with each of them briefly. They have been considered in detail in an advice dated 7 May 2015 prepared by Mr Featherby Q.C. and Mr Kenny.

[50]The sum proposed for general damages for pain, suffering and loss of amenity (inclusive of interest) is £305,000. Although HS’s awareness of her predicament is limited, the scale of her disability is such that the appropriate award must be at the upper end of the range of awards for injuries of maximum severity. The proposed figure satisfies that description.

[51]The award for the cost of care to date has been agreed in the sum of £270,000. The cost of professional care provided to date has been met in full within that figure. Insofar as there has been any discounting of the sum initially claimed, it essentially has been in relation to sums claimed for gratuitous care. The agreed figure assumes a “normal” discount of 25% on the commercial cost of care in accordance with the decision in Evans v Pontypridd Roofing Limited [2001 EWCA Civ 1657. Such a discount is entirely appropriate in this case. It follows that the overall sum identified in relation to past care is appropriate. The other costs and losses incurred to date in large measure are to be recovered as claimed and the agreed figures are sensible and proportionate.

[52]The Claimant has claimed for very many items of equipment to be provided over the coming years. There is an issue as to the recoverability of some of the items e.g. a powered wheelchair. To engage in a line by line consideration of the items is not necessary. The global sum is what matters. That sum is a reasonable assessment of the entirety of the future equipment needs of HS.

[53]The cost of future transport as agreed is very close to the sum initially claimed by HS. It is not necessary to engage in an assessment as to whether one model of vehicle would be necessary as opposed to another model given the sum in fact to be recovered. It is ample to meet HS’s transport needs.

[54]The amount to be recovered in respect of accommodation does not fully reflect the actual cost incurred in respect of the house now occupied by HS and her family. That house is larger and better appointed than the kind of accommodation originally envisaged by the accommodation expert engaged on behalf of HS. It follows that the cost of such a house might not have been recoverable in full as against the Defendant. That is not to criticise HS’s parents. They had to find a house which was able to meet the needs of HS but also matched their needs i.e. was in the area with which they were familiar and in which they worked. In terms of recovery from the Defendant, the agreed figure is a proper reflection of the appropriate sum.

[55]The cost of future therapies is to a substantial extent a broad brush estimate. Precisely what HS will be able and willing to undertake in the future is speculative. Any discounting of the figures initially claimed is reasonable. The same applies to the future cost of assistive technology.

[56]The Court of Protection costs as agreed are based on the joint statement of experts instructed by HA and the Defendant. It follows that the resulting figure is appropriate.

[57]I approve all of the sums agreed in relation to the various heads of damage as set out herein. Further, I am satisfied that the sums recoverable for future care costs (including case management) will be best met by way of periodical payments in respect of which I have seen a report from Nicholas Leech, an IFA. The annual payment from 2015 to 2024 will be £225,280.80. From 2025 onwards the annual payment will be £246,421.03. HEAD OF LOSS £Amount General damages (inclusive of interest) 305,000 Past losses Care and assistance 270,000 Case management 50,000 Equipment 1,750 Holidays 3,279 Physiotherapy 16,171 Speech and language therapy 2,121 Neuropsychology 7,275 Occupational therapy 6,445 Miscellaneous 20,000 Interest 29,000 Future losses Care and case management (up to commencement of periodical payments) 146,895 Equipment 400,000 Loss of earnings 300,000 Transport 250,000 Holidays 128,000 Accommodation 820,000 Physiotherapy 134,800 Pool hire 125,440 Speech and language therapy 83,000 Neuropsychology 35,000 Chiropody 4,897 Riding for the disabled 6,500 Occupational therapy 48,000 Assistive technology 60,000 Music therapy 25,000 Court of Protection and deputy’s costs 310,263 Miscellaneous 3,500 GRAND TOTAL 3,592,336