LW
v
B**** HEALTH AUTHORITY

CASE REPORT

Severe brain damage caused at birth
Very severe behavioural problems
Trial on all aspects of compensation
£5 million award

1. LW was born on the 7th February 1974. She was an undiagnosed twin, and so there was unacceptable delay in delivering her, causing hypoxic damage to the brain, resulting in athetoid cerebral palsy. She commenced proceedings in 1995, and judgment was entered by consent in 1998 (the admission of liability having been made only a few weeks before trial of the liability issue, and only after the Claimant had been tested to the limit by offers to settle liability at a lower percentage). Her damages claim was tried by Mr Justice Holland in October 2000, and he gave a preliminary judgment that month. He awarded the following sums; I have added my comments under the various headings.

Pain, suffering and loss of amenity

2. The Claimant has athetoid cerebral palsy which affected her physically in all aspects of her life, including speech. There was some dispute about the extent to which her intellect had been affected, but the judge found that there was significant preservation of her intelligence. The dominating feature of the Claimant's disability, though, was her behaviour. It had affected her all her life, and had challenged all who had dealt with her. There have always been outbursts of verbal and physical aggression, the latter extending to stabbing care staff and herself; self harm has been prevalent feature over the years, as has been damage to property, and one of the worst aspects has been the unpredictability. A nearly full life expectancy was predicted. The effect of the behaviour has been that the Claimant has become isolated, and her world is one of constant supervision by day and confinement at night (there has to be a system of alarm sensors to alert the night-time carer to the Claimant being out of bed, partly for fear of attack).
3. I submitted that this was nearly as bad a case as one would expect to see, because although one could imagine various aspects of a catastrophic disability which this Claimant did not present (such as chronic, intense pain), it is not usual to meet all possible handicaps in one person. The judge awarded œ160,000, which I thought was on the low side; a client of mine with a life expectancy of only about 20 years was awarded œ180,000 recently, and he had none of the behavioural problems, and probably no significant pain.
4. The first of many issues raised by the Defendants was whether the Claimant's problems were caused by organic brain damage (as asserted by Dr Martyn Rose and Dr Peter Eames), and therefore would not improve, or whether current clinical treatments for challenging behaviours probably would reduce the challenging behaviours so that her life would be improved substantially. This theory was put forward by Professor Murphy, who considered himself and his team to be the last word in the treatment of challenging behaviour problems. He was not prepared to give weight to the opinions of our experts (who are both enormously experienced in such problems), nor to the experience of this patient gained over more than two years by the treating psychologist (Miss Ann Cullington, who gave evidence excellently, demonstrating a sensible and balanced view). The judge preferred our evidence, which had an impact on damages for pain and suffering.

PAST LOSS

 

5. The Claimant's parents had to send her brother to a private school because they were having so much difficulty with her; despite the Defendants' arguments, this extra expense was allowed. Care 196,228
6. £196,000 had been paid to an agency, and the Defendants offered an indemnity for a further œ160,000 which had been incurred, part of which had been paid but could not be proved with ease, and part of which the Claimant might never have to pay due to contractual problems caused by poor documentation at the agency.
   

   Psychotherapy	5,525
   Accommodation	28,000
   Earnings and pension	75,000
   Transport	25,000

FUTURE LOSS AND EXPENSE

 

7. All possible objections to this head of claim were raised by the Defendants. The annual cost is £135,000, and the history demonstrated that this was a sensible and reasonable package. There were extensive care diaries and assessments prepared by the carers, and various different approaches had been tried previously, without success. We called the team leader, who gave a vivid account of how difficult it was to look after the Claimant. Mrs Maggie Sargent was the expert, and she gave evidence excellently, as usual. The Defendants' expert was Ms Joanna Douglas, whom I had not come across before. She wrote her report without visiting the Claimant, which I thought, and still think, is unacceptable. In my opinion (and I emphasise that this is only an opinion), she gave her evidence appallingly. Her written report gave the impression of extensive experience, but in fact it appeared that she had none. She had costed the care package at about £86,000 in her report, but it appeared in oral evidence that, by the time her mistakes (admitted by her in cross examination) had been corrected, her package would cost nearly as much as ours.
   

   Accommodation	90,000
   Aids and equipment	147,000
   Loss of earnings	450,000

8. I thought we had really strong evidence on this head of damage. The Claimant's twin sister is earning about £48,000 a year, her brother, who is two years older, is on about £45,000, and her father retired recently from a salary of about £100,000. The judge used that dreaded phrase "broad brush", and reduced the claim from almost a million pounds to £450,000. He did this by using a random multiplicand of £30,000 a year, and reducing the multiplier from a full work multiplier to 15.
   

   Transport	20,000
   Gardening and DIY	20,000
   Decorating	5,000
   Holidays	40,000
   Psychotherapy	25,000
   Psychiatric care	10,800
   Physiotherapy	5,750
   Speech therapy	23,539
   Case management	96,000

    

9. Some elements of the claim were left outstanding. There was a calculation of interest from the date of birth to the date of trial. The Defendants asserted that there had been delay, but of course good litigation practice for claimants is to assess when would be the best time for the court to make an accurate assessment of the true nature of the present and future disability and handicap, and to try to bring the case on for trial at that time. There have been several cases reported over the last few years in which judges have adjourned specifically for that purpose. This had not been done here, but there is nevertheless an argument for delay. Court of Protection or private trust fees had not been calculated. There has now been agreement on these issues. Taking those elements into account, and adding the indemnity for half of the past care payments outstanding as described above, the total award was about œ5 million; is that the second highest award ever in this country, and the highest for clinical negligence?
   

   TOTAL AWARD

   £4,784,567

14 December 2000

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