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
		07/10/2015

Mr Justice Warby:

Introduction

1. This is an application for the Court's approval of an agreed settlement of a claim for personal injuries arising from clinical negligence in 2001.
2. The claimant is a woman of 28, born in December 1986. The defendant is the NHS Trust responsible for the very well-known children's hospital at Great Ormond Street, London (GOS).
3. The parties have agreed on the sums that should be paid, and on the structure which the settlement should take, but the settlement requires the court's approval. That is because, and only because, the claimant is a protected party. She is protected because, although she is an adult, she lacks capacity to conduct the proceedings. For that reason she has a litigation friend, who is her mother. For the same reason, the rules provide that no settlement shall be valid without the court's approval.

Reporting restrictions and anonymity

4. There is a standard practice in cases of this kind, which come before the court only for its approval and not for any other decision. The practice is to hold the hearing in public so that all the normally reportable details are available for publication; but to make an order prohibiting the identification of the claimant and her parents. This is because the public interest in open justice in cases of this kind is not strong enough to justify the degree of intrusion into privacy which identification would cause: see JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96.
5. Mr Hough for the claimant invited me to follow that practice in this case, and I have done so. Before doing so I invited submissions. The defendant made no representations. The media were present at the hearing and I heard representations on behalf of the Press Association. It was pointed out that no notice had been given of an application for reporting restrictions. It was also said that it is difficult for the media to formulate meaningful arguments in the absence of any significant amount of information about the case, which might, for instance, relate to a public figure. These are issues that may deserve consideration for the future.
6. In this case however the claimant and her family are ordinary private individuals and I am satisfied that there is no such public interest in their identification as would override the general rule in favour of anonymity. I make an order prohibiting the identification of the claimant and her parents as being the claimant and the parents of the claimant, in this case. The claimant is to be referred to as TUV. Her mother and litigation friend is to be referred to as SIV. The final form of the order remains to be settled but in response to concerns expressed by the Press Association I have made it clear that the prohibition on identification is to be qualified so that it will not be a breach to report anything contained in this public judgment.

The facts

7. The claimant was born on 17 December 1989. She had already suffered substantial injury before her birth. She was one of twins. Her twin died in the womb, when the two were about 29 weeks gestation. This caused circulatory disturbance to the claimant, who was born at about 37 weeks gestation with cerebral palsy.
8. The claimant was later described as suffering from spastic quadriplegia with a strong dystonic element. She was wheelchair dependent, with significant and persistent movement disorder, and intermittent spasms, which were painful to her and her family. She had no speech, though she was able to communicate with her eyes, using a computer. None of this was the fault of the defendant, and indeed it is not attributable to any negligence by anyone.
9. The claim arises from events nearly 12 years later, in late 2001. In October 2001 the claimant became unwell, and she was taken to Northwick Park Hospital with suspected fitting. From there, on 3 December 2001, she was taken to GOS for an EEG, accompanied by her parents. About 2 hours after her arrival she was in a state described by a technician as "unrousable but breathing".
10. The technician brought in two consultants, but within 5-10 minutes of their arrival the claimant suffered a heart attack. The cardiac arrest team arrived some minutes later. The result of this sequence of events was that the claimant suffered significant brain damage.

The claim

11. The claim is that upon a patient being diagnosed as "unrousable" it was mandatory for the consultants to give oxygen and suction and, at the same time, to make a crash call. This should have happened within 1 minute. If oxygen and suction failed, the consultants should attempt bag and mask ventilation whilst awaiting the crash team. The crash team should have arrived within 3-5 minutes of the call, and on arrival should have intubated the patient.
12. In fact, it was impossible for the doctors to put in place the appropriate steps at the appropriate time. If the sequence of actions I have described is to be undertaken in an EEG department, the department needs to have access to an oxygen gas supply, and a crash trolley with suitable emergency resuscitation equipment. In this case the equipment was not available to the doctors.
13. An audit stated "Lack of O2 and suction in area where child was. No trolley for O2 cylinder found behind door of another room: no portable suction location. No face shields." It appears that attempts were made to borrow the essential equipment from nearby wards but there was delay.
14. Evidently, the cause of the heart attack was that the claimant had inhaled gastric contents. Swift administration of oxygen and suction might have prevented the heart attack. It is highly probable that it would have prevented the brain damage.
15. The fact that the necessary equipment was not available was an institutional failure of the defendant, which admitted liability and causation in pre-action correspondence.

The settlement

16. The details of the agreed settlement will be available in the formal order that has been agreed, and which I have approved, which will be a public document. In outline, however, it includes:-

(1) agreed sums for pain, suffering and loss of amenity, for past losses, and future losses, the majority of which will be paid by way of a lump sum;

(2) periodical payments to cover care and case management for the future.

Approval

17. In deciding whether to approve a settlement the court's purposes are to safeguard the interests of protected parties; to ensure that defendants are able to obtain a valid discharge from such a claim; to make sure that money recovered is properly looked after and wisely applied; and to protection the interests of all dependants.
18. I have had the benefit of reading a detailed and careful advice from Counsel for the claimant, and a draft order. I have approved the figures and the form of the draft order, which follows the model order which is recommended in these cases. I am satisfied that the settlement figures, and the structure of the settlement, are such as best meet the claimant's needs. I should make some observations.
19. First, as I have mentioned, the draft order includes an order for periodical payments under s 2 of the Damages Act 1996. When deciding whether to make such an order I have to be satisfied, first of all, that the parties have considered the relative advantages of a lump sum or periodical payments order. I am quite satisfied that they have done so.
20. I also have to consider all the circumstances of the case, and in particular whether this is the form of award which best meets the claimant's needs: CPR 41.7. I am required to have regard to the scale of the annual payments, and to the preferences of the parties: PD 41B para 1.
21. The parties are clearly right to have opted for a periodical payments order in this case. Such an order has two significant advantages over an order for a lump sum payment. The first is that it ensures that there will be security for the necessary payments for care, throughout the claimant's life. Secondly, a capital sum would be calculated on the assumption of a 2.5% annual return, and that is a level of return that is not available at present and may not be available for a considerable time to come.
22. Secondly, I note that the fact that this claimant was already injured when the brain damage took place in 2001 raised particular difficulties for the parties. It is common ground that as a result of the cardiac arrest and consequent damage, the claimant's condition deteriorated significantly. Before the cardiac arrest, and despite her ante-natal injuries, she was a lively and evidently intelligent young woman, making progress – no doubt as a result of the efforts of her parents. It is now very difficult to communicate with her. She has significant visual impairment and is registered blind. She now has no voluntary movement of her limbs. She cannot take food orally, and is liable to cough and choke. These are just examples of changes for the worse following the events of 2001.
23. There is room for debate about the right approach in law to compensating a claimant who is already injured at the time of the events that lead to the claim, and which cause additional harm: see Reaney v University Hospital of North Staffordshire Trust [2014] EWHC 3016 (QB) [70]-[75], and Murrell v Healy [2001] EWCA Civ 486 per Waller LJ. The issue is an important one. In this action the parties have been able to reach a compromise position which, I am satisfied, is a reasonable one, and ensures that the claimant is provided with sufficient funds to meet her reasonable needs, without having to test the legal issue.
24. That compromise position involves payments by the defendant which will allow a significant element of privately funded care and case management. In addition, the compromise arrived at envisages continued care from the claimant's parents, with an element of state provision through the benefit system. This is a reasonable arrangement, and the parties' representatives are to be congratulated on achieving this beneficial settlement.
25. Finally, I must mention the family. The claimant's parents have devoted an enormous amount of love and care to looking after their injured child for the past 28 years. Their work has been rightly described by Ms Bowron QC for the defendant as "extraordinary". Particular tribute is due to the claimant's mother. She has overcome the initial trauma in 1986 of losing one twin and finding the other severely impaired, followed by what must have been the dreadful shock of the brain injury of 2001. This settlement is not the end for the family, but it is the end of one phase and beginning of a new one. The whole family has the court's best wishes for the future.