Totham v King's College Hospital NHS Foundation Trust
January 22, 2015
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
- MRS JUSTICE ELISABETH LAING DBE
Areas of Law
- Tort Law
- Health Law
- Civil Procedure
January 22, 2015
QUEEN’S BENCH DIVISION
United Kingdom
CORAM
AI Generated Summary
In a three‑day hearing, Mrs Justice Elisabeth Laing assessed damages for Eva, a seven‑year‑old who sustained a grade 2 hypoxic ischaemic injury during delivery at King’s College Hospital, resulting in cerebral palsy and severe physical disability. King’s College Hospital NHS Foundation Trust admitted liability, and the court approved settlement of 20 agreed items while deciding ten disputed heads and interest. Applying the 100% principle and reasonableness/mitigation, the court set general damages at £275,000, applied a 25% discount to gratuitous care and case management, allowed past professional case management in full, accepted flight cost differences, awarded £3,000 per year for pre‑21 earnings, refused “lost years” damages due to Croke, declined future childcare, allowed hippotherapy in full and sports at £300 per year, awarded orthotics at £800 per year to age 16, endorsed adapted vehicle costs and methodology, assessed disability‑related mileage at 3,500 miles, permitted four months’ rental, and fixed post‑21 earnings at £32,694.51 per year in periodical payments.
Judgment
THE HONOURABLE MRS JUSTICE ELISABETH LAING
Introduction
This is a claim for damages for serious brain injuries which the Claimant (“Eva”) suffered during her delivery at King’s College Hospital on 4 October 2007. The Defendant (“the Trust”) has accepted liability for those injuries. Eva and the Trust have also agreed some heads of damage. This is my decision, after a three-day hearing, on the remaining disputes about damages. I was also asked to approve the parties’ agreement to settle 20 various heads of damages. I have read and considered the advice by the Claimant’s counsel about this. I record my approval of that settlement in this judgment, having announced it in open court in the course of the hearing.
The facts
Given the Trust’s concession on liability, I do not need to say anything about Eva’s delivery. The relevant facts for my purposes are the facts about Eva’s current condition and prognosis, in so far as these have a bearing on the appropriate compensation for her injuries.
Eva suffered a grade 2 hypoxic ischaemic injury at birth. Initially the prognosis was unclear. Although a full developmental assessment in February 2008 suggested that everything was normal, it became clear that Eva was having problems with her posture and muscle tone. By June 2008, she was showing signs of cerebral palsy. Eva is now 7 years old. She is generally healthy, and weighs about 16kg. She lacks muscle strength and dexterity in her hands and arms. She finds it hard to control the position and movement of her head. It is hard for her to sit, or to get around, without help. She cannot walk without help. She has a manual wheelchair which she cannot propel, a walker, in which she can walk, and a TomKat tricycle which she can pedal.
She no longer suffers from seizures, perhaps because these are controlled by sodium valproate. But she has a startle response to loud noises. She is on medication to control this, to control her dribbling and to help her with movement. At the date of her parents’ first witness statement, she was continent during the day, but not at night; her parents were working on this, and said that when she was continent at night, she would need someone to help her on and off the toilet at night. She is now continent at night. She generally sleeps well, although she wakes up at least once, needing a drink of water. As she gets older, it is likely that she will need someone to be with her all the time.
She goes to a mainstream primary scho