England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/03/2005

The Honourable Mr Justice Treacy :

1. The Claimant was born on 16 April 1971. On 16 August 2001 he sustained catastrophic head injuries in an accident at work. At the time of the accident he was married to his current wife Miksha Patel. They had not had any children but hoped eventually to do so.
2. Consequent upon the severe brain injury sustained by the Claimant these proceedings are brought by his wife and litigation friend. Further, the Claimant's case is under the jurisdiction of the Court of Protection.
3. The Claimant's head injuries were very grave. He suffered a large left fronto-temporal subdural haematoma. There were contusions and lacerations to the underlying brain. There were skull fractures. He needed emergency surgery followed by support on a ventilator. He later had a tracheostomy. During his first 24 hours post accident his highest score on the Glasgow Coma Scale was 7.
4. It is now approximately 3½ years since the accident. The history of treatment can be summarised as follows:

(a) 16 August 2001 to 15 September 2001 - initial acute treatment at the Royal Free Hospital.

(b) 15 September 2001 to 12 December 2001 - Lister Hospital, Stevenage.

(c) 12 December 2001 to 25 April 2002 - Regional Rehabilitation Unit, Northwick Park.

(d) 25 April 2002 to 13 December 2004 - The Gardens, Neurological Nursing Home, Sawbridgeworth.

(e) 13 December 2004 to date - Haberdashers House, Putney, Transitional Living Unit of The Royal Hospital for Neurodisability (TLU).

5. During the period since his accident it has been necessary from time to time for the Claimant to undergo various operations or procedures. He has throughout been the recipient of measures aimed at his rehabilitation.
6. The Claimant's current position is that his severe brain injury has left him severely disabled and dependant on carers for all of his activities. His on-going disabilities can be summarised as follows: -

Severe right-sided weakness, restricted movement and spasticity.

Extremely restricted verbal communication.

Disorientation of time and place.

Inability to manage his own affairs.

Inability to manage his own personal care.

Inability to stand, transfer, walk or climb stairs independently.

Severe cognitive impairment.

Substantial impairment of vision.

7. Whilst at the TLU in Putney the Claimant's condition has shown some improvement in relation to communication and mobility. These improvements are not unexpected and, if maintained, would improve the Claimant's quality of life somewhat. However, the Claimant's level of disability, which is agreed to be severe, will be permanent, and the improvements seen will not affect the Claimant's level of care needs. There will be no neurological improvement. The Claimant will for the rest of his life require a 24 hour care package.
8. The probability is that the Claimant will remain resident at the TLU in Putney until his discharge to a recently purchased house in the Watford area. The house is undergoing a process of adaptation so that it will meet the needs of the Claimant, his wife and the carers who will need to be in 24 hour attendance upon the Claimant. The likelihood is that the Claimant will be discharged in about 6 months time.
9. The care plan agreed between the parties for the Claimant on his discharge recognises that round the clock caring support is needed involving a Case Manager, a Team Leader and individual carers. It is not envisaged that Mrs Patel will form part of this package. She will, of course, be resident with her husband in the new house, but she has her own career as a management accountant.
10. I wish to record my admiration for Mrs Patel's devoted care and attention towards her husband since his accident. She has, at a great personal cost, supported him, cared for him and done all in her power to assist him whilst at the same time maintaining responsible employment.
11. On the 26 January 2004 the Claimant's action in negligence was compromised by agreement before Mr Justice Hughes who approved an acceptance of liability by the Defendants subject to a reduction of 25% in respect of contributory negligence on the part of the Claimant. That agreement, therefore, left damages to be assessed.
12. Since January 2004 there has been further substantial agreement between the parties as to damages so that very many matters have been resolved subject to the approval of the Court. It is indeed the case that certain matters, previously not agreed, have resolved themselves during the course of the hearing before me. The parties agree that the question of the Court's approval of the agreed matters should not be considered until I have ruled on those matters which have not been capable of resolution and upon which I shall rule in this judgment.
13. With that somewhat lengthy preamble I can now identify the items which still remain in dispute.

(a) Life Expectancy

The Claimant's life expectancy is in dispute by the parties, and until that is determined the correct lifetime multiplier to be applied in relation to recurring items (which have been reduced to annualised figures) cannot be fixed.

(b) Items relating to care and case management

Although there has been a very large measure of agreement between the instructed experts in care and case management, four specific matters remain for determination.

(i) The balance between waking and night care within the agreed 24 hour package.

(ii) Whether any part of the Team Leader's agreed input of 20 hours per week should involve hands-on care (as opposed to supervisory/ administrative work), thus reducing the overall number of weekly waking care hours.

(iii) Whether, for the first three months after the Claimant's discharge from the TLU at Putney, the Claimant's care package at his home should involve 24 hour waking care.

(iv) Whether for the first 12 months after the Claimant's discharge from the TLU at Putney, there should be an additional number of hours allowed for Case Management.

(c) Assisted Conception

The issue is whether any sum should be allowed for the cost of treatment to assist conception in the light of the Claimant's erectile dysfunction suffered as a result of his injury.

(d) Video Telephones

There is an issue as to the appropriate annual cost of this item. The Defendants argue that such costs will reduce from current charging levels in the future and this should be reflected in the sum fixed by the Court.

Life Expectancy

14. The Claimant relied on the evidence of Mr Derar Badwan, Consultant in Rehabilitative Medicine. The Defendants relied on Dr Richard Greenwood, Consultant Neurologist, and Professor David Strauss, Emeritus Professor of Statistics and Director of the Life Expectancy Project at the University of California San Francisco. All three gave oral evidence before me in addition to their various reports. The Claimant and Defendants adopted different approaches to their calculations of life expectancy.
15. The final positions reached were that the Claimant was contending for a life expectancy to about 76 years. The Defendants argued for around 67.5 years.
16. The Claimant reached his figure by relying on Mr Badwan's view that the Claimant's life expectancy would be "reduced by 7 years as an upper limit". It is agreed that for a man of the Claimant's age, life expectancy, unimpaired by the injury, disability and problems which now beset the Claimant, would be to 82.9 years according to the most recently published life table for England and Wales. This is the PIBA Expectation of Life Table for England and Wales (B3). Accordingly, a figure of 75.9 years is said to be appropriate to the Claimant after deducting the 7 years referred to by Mr Badwan.
17. Mr Badwan said his reduction figure of 7 years was primarily based upon his clinical assessment of the Claimant's condition. Of the various risk factors which reduce life expectancy in a case of this sort, he assessed immobility as the most significant. In the light of recent improvement in mobility which enables the Claimant to walk for a few metres with the help of a tripod and a carer in attendance, Mr Badwan felt that the potential threat from immobility was reduced. This was particularly so in the context of a good care and rehabilitation regime of the type proposed for the Claimant. Other risk factors such as late onset epilepsy, problems with feeding or swallowing and recurrent urinary tract or chest infections were not of great significance in this case either because of control of drugs or because the Claimant has not suffered from any problem of substance in those areas.
18. In coming to his conclusion Mr Badwan said he had taken account of a paper published in 2004 by Cynthia Harrison-Felix and others entitled "Mortality following Rehabilitation in the Traumatic Brain Injury Model Systems of Care". Mr Badwan said he relied on the finding that individuals with traumatic brain injury (TBI) were twice as likely to die compared with individuals in the general population of similar age, gender and race, resulting in an estimated average life expectancy reduction of 7 years for individuals with TBI. It was this which had influenced him to alter his view expressed in August 2004 that a reduction in life expectancy of 4 to 5 years "at most" was appropriate, to his view at trial of a reduction by "7 years as an upper limit". Mr Badwan disavowed reliance on another recent paper by Allen W Brown and others, "Long-term survival after traumatic brain injury", so it is unnecessary to deal with that further.
19. Mr Badwan was criticised on behalf of the Defendants for a failure to understand and apply the Harrison-Felix paper. In particular, he had wrongly taken the Claimant to be at the level of the average individual in the Harrison-Felix paper. His reliance on the paper was, in his own words, "to a considerable extent" in coming to his conclusion. It follows that if his appreciation or application of the paper's findings was flawed, it must impact upon his opinion as to the level of reduction in the Claimant's life expectancy.
20. I find that the Defendant's criticisms of Mr Badwan's understanding of the paper are well founded. In particular

(i) 37% of the Harrison-Felix cohort had "severe TBI" (highest Glasgow Coma Scale score in the first 24 hours post injury of 8 or less). The Claimant's score was 7, so his injury was "severe" in a large cohort which ranged from "mild" to "severe".

(ii) The Claimant's current score on a Disability Rating Scale is 10 some 3½ years post-accident. This compares with the Harrison-Felix average score of 6 at up to 93 days post accident. There is according to Harrison-Felix a 12% increased risk of death for every one-point increase in the Disability Rating Scale. A Disability Rating Scale (DRS) of 6 indicates "a moderate amount of continued disability" for most people. It is plain that the Claimant's position is rather more serious and that there is no realistic prospect of his attaining a DRS as low as 6. I find that Mr Badwan failed to appreciate the difference between the scores of 6 and 10. He made an error of statistical interpretation in adding 3.7 (which represented the limit of the range of scores) to the figure 6 and thus treating it as close to 10.

(iii) The cohort for the Harrison-Felix paper related to those injured between the ages of 12 and 21. Mr Badwan accepted in cross-examination that it was probable that the outcome for those injured when over 21, (the Claimant was 30 when injured), is less favourable.

21. I find that Mr Badwan was in error in relying on the average reduction of 7 years in the Harrison-Felix paper in the Claimant's case. For the reasons summarised in the preceding paragraph, the Claimant's position does not equate with the average discussed in that paper, but is worse. It follows that since this paper was an important factor in the view advanced by Mr Badwan, his opinion as to the reduction of life expectancy is an underestimate. In so concluding I have not lost sight of Mr Kent QC's closing submission that, although Mr Badwan's approach to the paper was flawed, his view as a clinician should still carry weight. In particular, he submits that I should give much weight to the Claimant's improved mobility and his prospects of a high standard of care for the future alongside the low risks from late onset epilepsy, feeding and swallowing problems or infection problems. Although I have taken account of those matters, I still conclude that Mr Badwan's assessment of life expectancy is too optimistic.
22. I turn next to consider the evidence on this issue for the Defendants, and deal first with Dr Greenwood. Dr Greenwood's view was that life expectancy is "reduced to between 65 and 70 years of age". This represented his final pre-trial position. At trial he commented that, if anything, this was generous to the Claimant in the light of his consideration of the Harrison-Felix paper, adding that the figure was "not an underestimate". He criticised Mr Badwan's reading of the Harrison-Felix paper broadly on grounds which I have concurred with above. He acknowledged that between August 2004 and January 2005 he had increased his assessment from "a life expectancy beyond the age of 65 years seems unlikely" to "life expectancy is reduced to between 65 and 70 years of age". He explained the increase as taking into account:

(i) The most recent Ogden tables showing a projected increase of about 3 years in life expectancy in the normal population of those of the Claimant's age;

(ii) The Harrison-Felix paper which led him to conclude that the Claimant would suffer a much greater than the average reduction in life expectancy of 7 years found in the whole cohort which was the subject of that study.

23. Dr Greenwood acknowledged that the Claimant's condition was non-progressive, and that risk from factors such as late-onset epilepsy, infection, feedings and cognitive impairment were relatively low, particularly when the Claimant will receive high levels of care and rehabilitation, as well as appropriate medication to combat seizures. The major risk factor, as he saw it, was the Claimant's relative immobility.
24. However, Dr Greenwood acknowledged that between August 2004 and January 2005 there had been an improvement in the Claimant's mobility. He conceded that that had not been a factor in his upgrading of the Claimant's life expectancy – see Paragraph 22 above. He took the view that whilst increased mobility would in general be good in terms of increased life expectancy because, for example, it would reduce the risk of cardio-vascular problems, he would not ascribe to it any overall positive impact on life expectancy since increased mobility would bring with it the increased risk of a harmful fall.
25. In my view, Dr Greenwood's analysis was not convincing on this point. He gave too much weight to the increased risk of falling when set amongst the general benefits of improved mobility. This is especially so when it is recalled that the Claimant will never be independently mobile. His walking will have to be done with a tripod or other support and under the close supervision of a carer. In these circumstances, I consider that Dr Greenwood has overstated the potential downside of increased mobility, namely an increased risk of falling. It follows that Dr Greenwood has failed to give weight in his calculations to the factor of improved mobility in a context where mobility (or lack of it) is agreed to be a significant factor in assessing life expectancy.
26. The Defendant also relied on the evidence of Professor Strauss, a statistician. I have reminded myself of what the Court of Appeal said about such evidence in The Royal Victoria Infirmary NHS Trust v B (A Child) [2002] Lloyd's Rep Med 282.
27. Professor Strauss is a leading statistician who has carried out very extensive work on survival and life expectancy including those who have suffered brain injury. He had performed an exercise to predict life expectancy for a group said to be in a similar position to that of the Claimant. His conclusion was this produced a life expectancy to 68.9 years for someone in the Claimant's situation in terms of a range of abilities and disabilities. This figure produced in February 2005 represented an upgrading of an earlier lower figure so as to take account of the recent publication of the 5^th Edition of the Ogden Tables which gives higher projected life expectancy figures than the previous edition.
28. Professor Strauss' methodology was subjected to careful scrutiny in cross-examination. In particular Mr Kent QC challenged the assertion that Professor Strauss's analysis showed that the Claimant's pattern of abilities and disabilities were reasonably representative of the comparison group.
29. No doubt the process of accumulating a reasonably comparable comparison group is difficult even for a man of the skill and expertise of Professor Strauss. A wide range of abilities and disabilities are factored into the total picture. The process involves two stages (i) assumption as to the Claimant's abilities; (ii) assessment of the capabilities of the proposed comparators. It is to be noted that one of the assumptions made about the Claimant's abilities was "does not walk". This means that the Claimant was assessed as being unable to walk using support. It is not in dispute between the parties that the Claimant is now able to fulfil this criterion. However, it is not a factor comprehended by the Strauss study. Following from this assumption, the comparison group was created including as one criterion of selection those who could not walk. There were other criticisms made of the process and in particular the potentially subjective nature of assessment of abilities for the purpose of creating the comparison group. I think it likely that those other criticisms would balance one another out overall. However, it does seem to me that the pessimistic assumption made for the purpose of the exercise that the Claimant "does not walk" would have affected the value of Professor Strauss' work and have led to some under-calculation of the Claimant's life expectancy.
30. It will be seen that I have concluded that neither side's case on the life expectancy issue survives unscathed. However, in assessing the damage done to each side's contentions, it seems to me that the greater damage was done to the case advanced on behalf of the Claimant. Mr Badwan's failure to appreciate the effect of the Harrison-Felix paper seriously undermines his figure. He has underestimated the effect of the Claimant's score on the Disability Rating Scale achieved some 3½ years post accident, and he has wrongly regarded the Claimant as falling within the range of the average individual within the paper when in truth his position is significantly worse. It was pointed out with some force that even after discharge from rehabilitation at Northwick Park some 250 or so days post-injury, the Claimant's Disability Rating Score was 16 compared to the average of 6 after a maximum of 93 days on the American study. Even now after further rehabilitation the Claimant's score is 10 which represents a marked deficit from the study's average of 6.
31. The justifiable criticisms of the Defendants' witnesses do not in my view have equivalent impact. Dr Greenwood gave a range with a mid-point of 67.5 years, but failed to take account of increased mobility. It seems to me that it is right to bear in mind that the improvement in mobility, whilst welcome, is in relative terms. The Claimant cannot walk freely, unsupervised or for more than maybe 10-15 metres, and this only after lining up his wheelchair alongside some point of support and moving slowly to a standing position. Professor Strauss in a letter dated 29 July 2004 referred to an allowance of about a year for improved mobility which Mr Kent QC adopted in his closing submission.

As to Professor Strauss' study, which I have found probably understates life expectancy for the reasons explained above, it has to be viewed in the context of the clinical assessments and as a checking mechanism.

32. I have to determine the Claimant's life expectancy in the light of his injuries and resultant disabilities, making the best estimate I can as to how long he can be expected to live. My assessment is that the Claimant's life expectancy is to 70 years. This represents the top end of the 5-year bracket proposed by Dr Greenwood and as such reflects his failure to allow for increased mobility. This figure fits with the exercise carried out by Professor Strauss after making an allowance for his failure to take account of the true state of the Claimant's mobility. It is a figure which in my judgment also reflects the significant and substantial mis-assessment by Mr Badwan.
33. The Claimant is 33.87 years old. On the basis of this judgment he has a remaining life expectancy of 36.13 years. Turning to Ogden Table 28 (5^th Edition) and applying the 2.5% discount rate results in a multiplier of 23.9.

Items relating to Care and Case Management

34. The balance between waking and night care.

It is agreed that the Claimant needs 24 hour care. The Claimant says this should be split as to 16 hours waking care and 8 hours sleeping care. The Defendants say that the balance should be 14 hours waking and 10 hours sleeping. The difference will not affect the rota of care to be provided; it will be reflected in differential rates of hourly pay for waking or sleeping care providers.

The Claimant's case is that a shorter period of sleeping care is necessary because it is unrealistic to expect the Claimant to sleep for 10 hours a night. He wakes early in the morning; he is self-centred in his demands from the time he wakes; if the object of relieving Mrs Patel from having to care for him is to be achieved, and if she is to be able to get ready and go to work at an early hour so that she can return home and spend time with the Claimant in the evening, this division of the 24 hour regime is necessary. The Defendants' case is that the Claimant, if he wakes early, could watch TV or speak to his wife, but should not require care at that point. Further, whilst at Putney TLU there has been some improvement in the Claimant's sleeping habits.

I find in favour of the Claimant's proposed split of 16 hours waking and 8 hours sleeping care in a 24 hour day. I accept Mrs Patel's evidence that her husband wakes early, is demanding from the start and that he is likely to be more so at home rather than in the more disciplined confines of Haberdashers House. I find that it is unrealistic to expect that the Claimant will significantly modify his demanding behaviour, his early waking and his needs for positive attention after his return to his new home. I do not think he is likely to sleep for 10 hours a night. The Defendants' expert, Mrs James, recognised during her evidence that the Claimant will behave differently when at home and with his wife when compared to the more institutional regime at Putney, and was prepared to concede to the extent of allowing 9 hours sleeping care to meet this point. I do not consider this goes far enough. Nor do I consider that the position is catered for by the agreed annual contingency allowance of £1600 per annum which is primarily concerned with temporary contingencies arising, for example, from sickness of the claimant or a carer rather than issues such as this one which is of a more permanent nature.

For these reasons I find that the Claimant's claim based on a split of the 24 hour care package into 16 waking and 8 sleeping hours is the reasonable and appropriate one.

35. Should any part of the agreed 20 hours per week input from the Team Leader involve hands on care?

The Claimant's case is that the agreed allocation of 20 hours per week for a Team Leader is appropriate for supervisory work only. The Defendants say that an allocation of virtually 3 hours a day for supervising the team of carers is excessive. I agree with their counter-proposal which would retain the 20 hours allocation but subdivide it so that the Team Leader spends 12 hours per week in a merely supervisory role but works 8 hours per week performing hands-on care. I do not believe that 20 hours per week should be needed solely to perform supervisory/administrative/crisis management tasks in a well-run care package which has the benefit of a Case Manager above the Team Leader. I further consider that there would be positive advantages to the role of Team Leader in a system which involved him or her doing 8 hours hands-on care per week in that it is likely to result in a better or more efficient performance of his/her duties overall. I do not accept that using the Team Leader in this way would lead to any undue loss of flexibility in the working of the carers' rota. In my view the Claimant's proposal would amount to provision of care resources which was not reasonably required and which could properly be described as wasteful. For these reasons, I accept the Defendants' contention that the Team Leader's weekly allocation of 20 hours should include an element of 8 hours hands-on care as reasonable.

36. During the first 3 months after the Claimant's discharge from the TLU at Putney, should the Claimant's care package at home involve 24 hour waking care?

The Claimant claims that this is necessary in order to enable a smooth progression from the TLU to home living. The Defendants' case is that it is the very function of the TLU to prepare the patient for such a change so that there should be no need for this extra element of care. The Defendants also point to the annual contingency figure as representing a safety net for unforeseen problems arising at this stage.

This is not an easy matter to resolve as there is force in the Defendants' expert's comments on the function of the TLU in preparing the Claimant for life at home. However, on balance I find that there will be a need for a full 24 hour waking care protocol immediately following the Claimant's discharge home. I accept his wife's evidence that the Claimant is a different and more demanding person when he visits his current home at weekends compared to the person he is at the TLU. I think this process will continue when he is discharged to his new home and that the Claimant will need to be educated into his new way of life. I do not think that this can reasonably be dealt with by immediately entering on the proposed long-term mixture of waking and sleeping care. I believe that a transitional period of full-time waking care should be allowed for in properly providing for the Claimant's needs. However, in the light of the evidence given as to the preparatory work to be done at the TLU, (which I accept), I consider that a 3 month period is an over-cautious estimate of what will reasonably be required. I conclude that a 2 month period suffices and rule accordingly.

37. Should there be an additional allocation of hours for Case Management during the first 12 months after discharge from the TLU?

The Claimant's case is that an increased time allocation for case management of 5 hours per month is needed during the first year at home so as to deal with teething problems including staff turnover which is said to be a common feature of newly-created care packages. The Defendants say that this is unnecessary. There is a long time available prior to discharge in which to make necessary preparations. Here there is an experienced case manager (Anglia Case Management) who should be well capable of planning and implementing a scheme which should not give rise to problems. In addition, generous hourly pay rates for carers have been agreed so as to attract good quality staff and avoid problems of staff turnover. Further, it is said, good quality staff will bring about early settling into a routine. On this issue I find in favour of the Defendants. I do not hold that the enhanced allocation of 5 hours per month for case management is reasonably needed in the first 12 months. Firstly, I note that significant case management will take place whilst the Claimant is at the TLU in preparation for his discharge. Secondly, I have already made allowance for a period of full-time waking care after the Claimant's discharge home which ought to have a beneficial effect on the transitional period. Thirdly, there is an agreed annual "high contingency" allowance of 20 hours per year for unforeseen crises. When these matters are allied to the generous pay rates proposed for carers, with their likely effect on attracting and keeping good quality staff, I do not consider that the case for an additional allowance is made out. Accordingly, I find for the Defendants on this issue.

38. I should record in relation to multipliers relating to care (as opposed to case management) it has been agreed that a reduction of 0.33 of a year should be applied to the multiplier to take account of the fact that that element of the agreed package will not come into effect immediately.

Assisted Conception

39. Mrs Patel's evidence was that prior to the accident it was the Claimant's wish, in which she shared, to have children. She says she still wants children by the Claimant. She has discussed it with him on a number of occasions. She says that she has explained to the Claimant (who has understood) that he will need to provide semen under general anaesthetic. They would like to have two children. Mrs Patel would wish to wait for a while until the Claimant is settled at home before attempting conception. She estimates a period of 3 or 4 years. I accept that this evidence represents her current state of mind.
40. Dr David Sumners, a Consultant Psychiatrist, is of the opinion that the Claimant has, on balance, a sufficient level of understanding to indicate capacity to consent to such a procedure. I accept his evidence.
41. The Defendants say that I should look at the position as it will be in 3 or 4 years time, and that the position is speculative. They say that much can change with the experience of the care package 24 hours a day in the home in the intervening period. They agree there is merely a chance that the procedure will be adopted but that it is no more than that, and they submit that an attempt to conceive a second child is even more remote. They go on to say that even if a child is conceived it does not follow that a second one will still be wanted.
42. The Claimant's case is that Mrs Patel's current position on this issue will not change, nor is there any reason to believe that the Claimant's will.
43. I have read the report of Mr Peter Brinsden, Consultant Gynaecologist, a specialist in reproductive medicine. Mrs Patel would, after the obtaining of semen from the Claimant, need to be artificially inseminated. The cost of a single process is £5000 - £6000, but usually a cycle of processes is necessary so that an agreed reasonable estimate for a single child (but without guarantee of successful conception) is £17500. The agreed figure for two children (on the same basis) is £32900.
44. I have to ask myself what the Patel's intentions will be in 3 to 4 years time. I conclude that it is probable that they will have maintained their wish to have a child. They will have been in their own specially adapted home for a significant period; they will have had the benefit of a good quality round-the-clock care package; the very heavy burden of full-time work, extensive travel and care for the Claimant which Mrs Patel currently manages will have been significantly lifted. I think it likely that the Claimant will remain desirous of having a child. I think it probable that Mrs Patel will be of the same frame of mind. After all, if, after everything she has been through with the trauma of her husband's accident, and the devotion of practically all her waking hours to her job or his needs, (as I find to be the case), she is presently of the mind that she would wish to have the Claimant's child, she is in my judgment equally likely to be of that frame of mind when the current burdens have been eased.
45. The Claimant goes on to submit that I should find as a probability that thereafter the Claimant would still wish to try for a second child. It seems to me that whilst it is probable that the Patel's will undergo the first cycle of treatments, it cannot be treated as a probability that they would undergo the second cycle. I have come to this conclusion for a number of reasons:

(i) The second cycle would be more remote in time than the first

(ii) If the first cycle produces a child, the impact of the child on this particular family's life would naturally lead to a re-appraisal of whether they wished to try for a second child.

(iii) If the first cycle did not successfully produce a child, that, too, might well result in a reappraisal of the parties wish for a child.

46. Accordingly under this head my award will be based on what I understand to be the agreed reasonable figure for a cycle of treatments referable to one child, namely £17500.

Video Telephones

47. There is agreement that it is reasonable and appropriate for the Patels to have video telephones to enable better communication with one another. The annual capital cost of £33.33 is agreed. The Claimant seeks £600 per annum for call charges. The Defendants contend for £300 on the basis that call charge costs will inevitably reduce in the future. No evidence has been produced to this effect: the Defendants say the court should draw an inference that costs will reduce.

In response the Claimant points to the absence of evidence and relies on Cooke v United Bristol Healthcare NHS Trust [2004] 1 WLR 251. Whilst that decision was concerned with whether the effects of future inflation were properly catered for by the process of taking a multiplicand, (fixed by reference to prices current at the date of trial), and a multiplier adjusted by reference to the discount rate, the Claimant submits that the same principles should apply to an assertion that future costs will decrease. The Court of Appeal was clear that the multiplicand is to be fixed by reference to current prices at trial and should not be altered so as to compensate for any apparent shortfall that might result from a use of multiplier and discount rate. At paragraph 45 of the judgment, Dyson LJ said:

"The assessment of future loss is not an exact science. That is why there will always be cases where some claimants who receive lump sum payments will, as things turn out, be under-compensated, and others will be over-compensated."

I agree that, having regard to Cooke, it would not be appropriate for me to depart from the current basis of fixing the multiplicand by reference to current prices. In addition, in the absence of any evidence as to what is likely to happen to charging rates for this relatively new technology in the future, it would be wrong for me to speculate as to whether they will go up or down. There is certainly no material upon which I could say that it was probable that prices would fall in the future. I therefore find for the Claimants on this issue and hold that £633.33 per annum is the appropriate sum under this heading.

Finally

48. The sums which I have cited at various points in the judgment represent sums based on 100% liability. A reduction of 25% will need to be made to reflect the agreed proportion of contributory negligence.
49. I have not ventured into detailed calculations resulting from the findings made in this judgment. These findings will need to be applied to agreed items as well as those upon which I have ruled. It was agreed at the hearing that counsel would translate my rulings into agreed figures which can be put before me at the handing down of this judgment/the approval hearing. I believe I have covered all matters which remained in dispute by the end of the trial, but invite prompt correction if I have overlooked anything.
50. For the sake of completeness I wish to record that there was raised by the Defendants at trial a significant issue as to possible future funding of care by a local authority or an NHS Trust. Had the issue been successfully pursued by the Defendants it would have had a major downward impact on the care and case management element of this claim. The Defendants called or read a number of witnesses on this topic and the stage was set for extensive legal submissions on a substantial raft of legislation, regulation and ministerial guidance. In the end I did not have to resolve the point. At the end of the evidence and prior to closing submissions, Mr Jeffreys QC, on instructions, informed me that the Defendants were no longer pursuing any point in relation to public funding of the Claimant's needs.