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Totham v Kings College Hospital NHS Foundation Trust (2015): Rehabilitation & the Lost Years

Totham (a protected party) v King’s College Hospital NHS Foundation Trust
High Court (QBD)
22 January 2015

The recent judgment in Totham v Kings College Hospital NHS Foundation Trust (2015) covers a range of issues involved in the quantification of damages following a brain injury sustained at birth. Dan Clegg examines the judgment’s key themes, which include consideration of future loss of earnings in the ‘lost years’, how to approach claims for commercial care and case management where the standard of care has been inadequate, claims for gratuitous care and case management, and future childcare costs.

Background

The claimant was born to professional parents in London, and suffered a grade 2 hypoxic ischaemic brain injury at birth which resulted in her suffering from cerebral palsy with a reduced life expectation of 47 years. She was unable to mobilise without help, and presented with severe learning difficulties. There were a number of quantum issues outstanding at trial by which time the claimant was seven. The judgment of Mrs Justice Laing provides useful guidance in relation to the following key issues:

The 'lost years'

The judgment affirmed the ratio of the Court of Appeal decision in Croke v Wiseman (1981): a child claimant whose life expectancy has been reduced by the tortious act cannot recover damages for future loss of earnings and pension that would have been earned in the ‘lost years’.

In Croke, Griffiths LJheld that there could never be a claim for ‘lost years’ from a childand stated that ‘the court should refuse to speculate’ on the future loss of earnings of a child. The judgment in Totham follows the view of the Court of Appeal in Iqbal v Whipps Cross University Hospital NHS Trust (2007) in criticising Croke, and highlights theinconsistent approach that has been applied by the courts in assessing damages for adults and children. Laing J believed Croke to be ‘inconsistent with the principle of full compensation… it has no rational basis’. Had she not been bound by Croke, she would have assessed the claimant’s losses during the ‘lost years’ as £32,694.51 per annum to retirement at age 70 and £12,000 per annum after that. Accepting however that the court could not depart from Croke, the claimant was awarded loss of earnings of £3,000 per annum between the ages of 16 and 21 on a lump sum basis, and between the ages of 21 and 47 a periodical payment of £32,694.51 per annum, discounted to 0.89% in accordance with Table B of the Ogden Tables.

For Croke to be overturned the issue must first be heard before the Court of Appeal, and then the Supreme Court. As Laing J strongly asserted, this point ‘should’ be resolved by the Supreme Court, and it is likely to be only a matter of time before this comes to pass, but in the meantime Croke continues to represent a windfall to compensators.

Case management

Inadequate care and case management

Where the claimant (or a litigation friend) has acted reasonably, the court will be reluctant to reduce damages for past case management, notwithstanding that the case management service the claimant received was unsatisfactory.

The judge found that aspects of case management regime the claimant had received were to be criticised: the providers had been ‘completely reactive’, and the claimant’s mother (and litigation friend) had specifically raised concerns with the professional deputy that the claimant was not receiving value for money. Given these findings one might have expected the judge to follow the 2013 High Court decision of Loughlin v Singh, where Parker J deducted 20% from this head of loss, based on the shortcomings in the standard of care and case management.

Commentators have criticised Loughlin for unfairly shifting the financial burden of care and case management from an institutional compensator to a catastrophically injured claimant. Criticism has focused upon the fact that a blameless claimant may still be contractually obliged to repay, or may have already paid the care and case management provider, by way of interim payments. A claimant in those circumstances may have no remedy against the care and case management provider, and may be forced to borrow from other heads of loss such as the award for PSLA or even future losses, and thus left under compensated.

It is striking that Laing J did not directly refer to Loughlin, but it is perhaps implicit that she was mindful of the criticism of that decision. Instead she found that the claimant’s mother had acted reasonably in her appointment of the case manager, and also in her attempts to manage the regime both directly and through liaison with the professional deputy.

This decision suggests that the courts will be reluctant to disallow past care and case management, even if the provision has been unsatisfactory. The court is likely to require evidence of incompetence that has had an adverse effect on the claimant’s rehabilitation.

Discount

Discount for gratuitous care

The claimant submitted that there should be no discount to the claim for past gratuitous care, because the claimant’s mother had given up highly paid employment, and also because the aggregate National Joint Council rate was lower than the true cost of commercial care in London.  The judge rejected this submission. Following the High Court judgment in Whiten v St George’s Healthcare NHS Trust (2011), the judge held the instant case was not so unusual and there should be no discount. Further, the court rejected the claimant’s submission that past gratuitous case management should not be discounted because the total amounted to less than the annual personal allowance, such that there would be no liability for tax and national insurance. The court found that gratuitous case management would be provided in tandem with paid and taxable employment, and thus a 25% discount was appropriate.

This decision confirms it is appropriate to reduce the hourly rate for all gratuitous care and case management by between 25 and 30%, even if the amount provided is modest.

Childcare costs

Cost of future childcare

Laing J gave detailed consideration to the expert medical evidence in reaching her decision not to allow compensation under this head of loss. She ultimately found that the chance of the claimant having children was ‘fanciful’. Her decision was influenced by strong evidence that the claimant would always lack capacity under the test set out in the Mental Capacity Act 2005. The judge held that the claimant would never be able to make a decision over whether to have children, and that it was probable that a case manager or professional deputy would never deem it in the claimant’s best interests for her to have children. She stated that if she was found to be wrong, she would have valued the claim in accordance with the defendant’s valuation, discounted by 60% on account of accelerated receipt.

A defendant will thus have a greater chance of successfully challenging claims of this nature, if it can show the claimant lacks and will never attain mental capacity.

Contact

For further information, please contact Dan Clegg, Associate on 0161 604 1747.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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