Scottish Court of Session Decisions

ED's Parent Guardian v. Argyll Clyde Acute Hospitals NHS Trust [2003] ScotCS 67 (12 March 2003)

OUTER HOUSE, COURT OF SESSION
A3160/02	OPINION OF LORD CARLOWAY in the cause ED's PARENT AND GUARDIAN (A.P.) Pursuer against ARGYLL AND CLYDE ACUTE HOSPITALS NHS TRUST Defenders ________________

Act : Maguire QC, Maclean; Brechin Tindal Oatts

Alt : Stacey QC, Khurana; Ranald F Macdonald

12 March 2003

1. Facts

1. The pursuer seeks an award of interim damages in respect of his child ED who was born on 4^th August 2000. The action is at an early stage with a proof not expected for at least eighteen months. The pursuer avers that, on that date, one of the defenders' medical staff negligently attempted an unnecessary Keilland's rotational forceps delivery without warning either the pursuer or his wife of the risks involved. As a result, the child sustained a compression torsion injury of his spinal cord at the level of the first and second cervical verterbrae. At the hearing of the motion, notwithstanding the defenders' averments on the open record, liability was admitted and the motion was opposed upon quantum only.
2. The injury to the child had catastrophic consequences. These were not in dispute. In terms of a report by Dr McWilliam, paediatric neurologist at Yorkhill Hospital [Pro 6/5], the content of which seems to have formed the basis for the averments upon record :

"The effect of the spinal cord injury is to have caused profound weakness of all muscles from his neck downwards. Reflex control of movement, independent of volition, is entirely normal and many reflex activities are greatly exaggerated because of lack of normal regulation by the brain as are autonomic reflexes (reflexes which regulate blood pressure, heart rate, sweating, bowel and bladder function etc.). As a result he has severe limitation of upper limb function and no useful lower limb function. Neck and trunk control are also severely limited so that [he] is unable to support his spine adequately, sit or support his head unaided. He has greatly impaired sensation below this level.

[The child] has some disturbance of lower brainstem function (inability to suck and swallow) and occipital cortical function (reduced visual acuity).

There is no reason to suspect any general disorder of brain function and, so far as can be ascertained, [his] cognitive function is normal."

The child has a tracheotomy and is permanently on a mechanical ventilator, requiring supervision at all times, four hourly chest physiotherapy and suction. One of the major unknowns is the child's life expectancy. This is undoubtedly greatly reduced, not so much because of the risk of respiratory infection but because of the likely development of severe skeletal, particularly spinal, deformity. Dr McWilliam concludes :

"Considering all this I believe that [the child] will, on balance of probabilities, survive well into adult life (say 25 years). There is, of course, a small risk of death at a much younger age but, depending on the extent of future deformities, it is at least as likely that he will survive very much longer than 25 years."

A report from Professor Michael J DeVivo at the National [United States of America] Spinal Cord Injury Statistical Center at the University of Alabama dated 23^rd December 2002 [Pro 6/3] suggests a statistical life expectancy of a further 35.4 years but the report acknowledges the difficulty of assessment because of the lack of comparable cases. For present purposes, having regard to Dr McWilliam's knowledge of the precise circumstances of the child, I will proceed upon his figure, although no doubt he might, in due course, wish to revise it in light of Professor DeVivo's statistics. The defenders were also content with that figure, again for present purposes.

2. The Rule of Court

3. Rule 43.9.(3) provides that:

"...the court may...ordain [the] defender to make an interim payment to the pursuer of such amount as it thinks fit, not exceeding a reasonable proportion of the damages which, in the opinion of the court, are likely to be recovered by the pursuer."

The terms of the rule afford the court a wide discretion restricted only by the ceiling of "reasonable proportion". Its predecessor, the old rule 89A(1), stated that court "may, if it thinks fit, order the defender...to make an interim payment...of such amount as it thinks just...". Under that rule it was said that a "conservative and moderate approach" was necessary (Nisbet v Marley Roof Tile Co 1988 SC 29, Lord Clyde at page 31). One factor which was regarded as significant in deciding whether to grant an award was the existence of hardship which might be alleviated by an early payment (see the passage in Littlejohn v Clancy 1974 SLT (notes) 68 quoted in McNicol v Buko 1986 SLT 12) but this was not an essential element (Nisbet v Marley Roof Tile Co (supra), Lord Clyde at page 32). Indeed the expenditure needed to alleviate any difficulty might not, of itself, form a head of claim (Thompson's Curator Bonis v Burnett 1989 SLT 264). The amount of the interim award was also not restricted to loss already actually suffered to date in the sense of expenditure incurred or pain experienced by the time of the award (Nisbet v Marley Roof Tile Co (supra)).

4. Although the word "just" does not appear in the current version of the rule, counsel did not maintain that there was any material difference in the approach which the court should take under the modern provision. It seems sensible to adopt the moderate and conservative approach suggested by Lord Clyde partly because of, as he said, the uncertainty of the future and the prospect of changes ensuing between the motion and the proof. That having been said, a wide discretion remains and just what a court will think "fit" will depend upon all the facts and circumstances. This was emphasised by counsel for the defenders, who submitted that it was a relevant consideration that the defenders were a public institution whose expenditure had to be publicly accounted for. I accept that, as a generality, the circumstances of a defender may be relevant but, in this case, I am not inclined to attach much weight to the fact that the defenders happen to be a public institution providing health care, as distinct from an insured person or public limited company having adequate resources to meet any decree. The defenders also submitted that consideration should be given to ordering that the payment of any sum be in two or more instalments, but I can see no reason why that ought to be done where it is not suggested that the defenders have any operational or financial difficulty in funding any award. It was said too that a large award might prejudice the defenders' attitude to a structured settlement. However, I would not have thought that the possibility of a structured settlement is materially affected by any award made, given that there can be adjustment of any interim award in due course by agreement between the parties. Furthermore, it is a matter for the pursuer as well as the defenders whether a structured settlement is acceptable. If a pursuer enrols for, and is awarded, substantial interim damages then he must take whatever consequences there might be on a defender's attitude.
5. It is not without significance that, in a case such as this where liability is admitted and there is no question of any deduction for contributory negligence, a pursuer is entitled to damages (including those for future loss) and, if a minimum level of likely damages is accepted by a defender, it is perhaps (subject to the need for moderation) difficult to devise an explanation why the whole of the minimum amount should not be paid over immediately. Nevertheless, the rule does prescribe the "reasonable proportion" ceiling. Just what a reasonable proportion of damages might be may not be easy to express but presumably the ceiling has in mind, amongst other things, the possibility that any assessment of likely damages might turn out to be too high and a post decree adjustment might be required. Certainly, a "reasonable proportion" is not a synonym for "small" (McNicol v Buko (supra), Lord McCluskey at 14). In both McNicol v Buko (supra) and Nisbet v Marley Roof Tile Co (supra), amounts of around 60% of the minimum conservative figures for damages were awarded. In both cases the records had already been closed, although in one of the cases no proof date had been set. No doubt 60% is no more than a reasonable proportion but there seems no particular reason to suppose that 75% or more should necessarily be seen as exceeding a reasonable proportion, especially where a minimum figure of likely damages is accepted by the defender in a given case.

3. The Likely Award of Damages

6. Although the court has to approach quantification of damages in a much broader fashion than may ultimately be appropriate at a proof, it does have to have some notion of the figure for the likely award before it can assess the ceiling level. In this case, there was a reasonable degree of consensus on several of the heads of claim. First, on solatium, the pursuer suggested £200,000 under reference to, amongst other case summaries, Martin v J & A Chapman (Haulage) 1995 GWD 2-77 and to the [English] Judicial Studies Board Guidelines. The defenders maintained £150,000 was more appropriate. I will adopt the defenders' figure. Although the child is not yet three years of age, some assessment of his loss of future earnings was possible using the wages of the adult members of his family as comparators (see the report from the employment consultants Pro 6/4). For example, the pursuer gained seven ordinary grades before working full time as a professional footballer. He later became a manager at a leisure complex, whilst still earning from playing junior football and coaching. The pursuer proposed a multiplicand of £18,000 per annum and the defenders suggested one of £15,000. Again, I will take the defenders' figure. Both parties were agreed on a multiplier of 18.18 based on the child working from the age of 18 until 65, but discounting the resultant multiplier of 27.14 (based on an annual net rate of return of 2.5%) by 0.67 to allow for the early payment of the damages. This gives a future loss figure of something just under £275,000 and I will use that rounded up figure as appropriate. There was a past care figure of about £12,500. In relation to the future, there were two points for consideration. The first was the life expectancy figure and I have already stated that I will take Dr McWilliam's 25 years for that. The appropriate multiplier is then about 17. The pursuer produced figures for annual care based upon a care report [Pro 6/1]. These were, in general terms: £7,000 per annum for the next 2 years; £13,000 for the following 6 years; £17,000 from then for 7 years until adulthood; and £45,000 thereafter for a further 7 years. Apportioning the multiplier according to these figures produces a total future care figure of just over £400,000 on a broad axe basis. The second point was that the figures for annual care were based upon the assumption that Yorkhill Hospital would continue providing the considerable care presently given. If it ceased to do so then the costs would double. In the absence of further information on this matter, I will assume that such provision will continue.
7. The pursuer claims equipment with a capital cost of approaching £17,500 and a further £56,000 over the years for replacement and maintenance. The defenders' stance was that there was some duplication involved in the equipment and, as in the case of future care, the multiplier was too high because it was based upon Professor DeVivo's statistical figure. I will take £15,000 and £35,000 respectively in these circumstances, given that I have adopted the lower life expectancy figure. For similar reasons I will take £18,000 as the cost of additional laundry, clothing and heating etc. The pursuer has a claim for transport costs based on the assumption that the child will need a specially adapted car. At present, transport, when required, is provided by the Hospital. A larger vehicle will be needed but it is difficult to say that the pursuer would not have purchased a larger car anyway. There will undoubtedly be additional costs here, but I do not think I can assess these on the information provided upon record and in the care report. For similar reasons, and in the absence of a detailed report and averments, I do not think that I can place even a general figure on the likely award for additional educational provision.
8. The only other major head of claim is accommodation costs. The pursuer's own house, in which he formerly lived with his wife, is agreed to be inadequate to meet the child's needs. The pursuer, his wife and the child are currently living in the house of the pursuer's parents-in-law in the Barrhead area. Reports by Crichton Associates, Architects, [Pro 6/2, 6/9] have explored various possibilities. The preferred option is the construction of a completely new house for the pursuer and the family, together with space for carers and specialist equipment. A floor space of 375 square metres is suggested at a cost of in excess of £500,000 plus site acquisition costs of between £150-350,000 depending upon location. Alternatively, a house might be purchased and extended or altered. The costs of this might be as little as £360,000 or as high as £770,000 depending upon location and the particular adaptation or extension contemplated. It is very difficult, at this stage, to determine what the likely award of damages on this head might be, given the formula to be applied in terms of Roberts v Johnstone [1989] 1 QB 878. The pursuer ultimately suggested a figure of something under £370,000 (again using a multiplier based on the longer life expectancy figure). The defenders' figure was about £240,000 plus certain running costs which have already accounted for above. I will take a conservative £250,000 here given all the current uncertainties.

4. Award

9. The total likely damages in this case will be a minimum of £1,150,000. The pursuer's desire for an interim award is based upon the pressing need for adequate accommodation for the child. The pursuer plans to spend a much larger capital sum on obtaining suitable accommodation than the sum likely to be awarded upon final decree under the appropriate head of damages. His counsel, under reference to the Crichton reports, said that a figure of £800,000 may be used for this purpose. The acquisition of suitable accommodation as a matter of some urgency seems desirable given the current inadequacy. The necessity of spending substantially more than the accommodation element of the damages is perhaps inevitable in a case such as this. In all the circumstances, including the need for that accommodation, I consider that an award of £850,000 is appropriate, being something less than 75% of the minimum likely damages. I will make such an award. Before doing so, however, I will put to case out By Order in order to be addressed on the questions of the payment and management of this sum, having regard to the terms of section 13 of the Children (Scotland) Act 1995 and in light of the Deed of Trust which has recently been exhibited.