Whiten v St George's Healthcare NHS Trust

In a catastrophic personal-injury claim, damages must meet the claimant’s reasonable needs while remaining fair, reasonable and proportionate. Where medical evidence produces a specific overall life-expectancy prediction after considering mortality risks, a term-certain whole-life multiplier is appropriate. The court must not use a mortality-based multiplier to discount that prediction merely because it may prove inaccurate. Reasonable decisions to adapt a temporary home may justify duplicated adaptation costs where the family faced urgency, disruption and compelling disability-related needs. For a disabled child living with parents, accommodation damages are not reduced by the value of the parents’ notional home or by notional rent unless failure to seek rent is unreasonable. Future care, case-management and loss-of-earnings awards may be paid periodically.

The claimant, a child with profound cerebral palsy and severe cognitive and physical disabilities, claimed damages for personal injury and financial losses caused by the defendant’s negligent management of his mother’s labour and his birth. Negligence was admitted in September 2005, causation was admitted in March 2006, and judgment on liability was entered for the claimant on 30 August 2006.

This hearing concerned quantum. The court determined life expectancy, the appropriate discount-rate methodology and whole-life multiplier, past and future care, therapies, equipment, accommodation, transport, earnings and related losses. It also considered whether the claimant’s family had acted reasonably in adapting a temporary home and whether accommodation damages should be reduced to reflect the parents’ housing costs.

Disposition. The court assessed damages following judgment on liability. The claimant’s reasonable needs were the governing consideration, subject to fairness, proportionality and the need to avoid imposing an unjustified burden on the defendant. The approach was consistent with Heil v Rankin et al. [2001] 2 QB 272.

1. Life expectancy and multipliers. The claimant’s life expectancy was assessed at age 35. Because the medical evidence addressed his overall mortality risks and produced a specific individual prediction, the court rejected the Paragraph 20 methodology in the Ogden Tables. Applying a mortality-based Table 1 multiplier would impose a discount merely because the prediction might be wrong. The court followed the principle applied in Royal Victoria Infirmary & Associated Hospitals NHS Trusts v B (a child) [2002] Lloyd’s Rep. (Med.) 282 and Wells v Wells, and used Ogden Table 28.
2. Accommodation. It was reasonable in the circumstances to remain in the existing London property and carry out substantial adaptations, despite the foreseeable need for a later move. The family faced urgent disability-related needs, disruption, limited interim funding and the loss of established care, educational and medical arrangements. Reasonable adaptation costs were therefore recoverable even though some costs would later be duplicated. Under Roberts v Johnstone [1988] 3 WLR 1247, damages were calculated by reference to notional investment income on capital tied up in suitable accommodation. No deduction was made for the value of a home the parents would otherwise have owned or for notional rent. The authorities in M (a child) v Leeds Health Authority [2002] PIQR Q46 and Iqbal v Whipps [2007] LS Medical 97 were followed.
3. Care and statutory liabilities. A directly employed care team, including a team leader, was justified. The court allowed future employer pension contributions under the Pensions Act 2008, while reducing the allowance to reflect uncertainty about commencement, contribution rates and employee participation. Care, case management and loss of earnings were to be paid by periodical payments.
4. Final assessment. Past losses were £690,266, with agreed interest of £11,925. Future losses, including periodical payments, were £5,685,507.89. The total lump-sum award before deduction of interim and Compensation Recovery Unit payments was £2,709,860.87.

Proceedings commenced on 8 August 2006. The defendant admitted negligence in September 2005 and causation in March 2006. Judgment was entered for the claimant on liability on 30 August 2006. This judgment determined the outstanding issue of quantum following hearings in 2010 and 2011.