Miller v Imperial College Healthcare NHS Trust

In assessing damages for serious personal injury, the claimant is entitled to reasonable provision addressing her reasonable needs. The question is whether the provision chosen is reasonable for those needs, not whether a cheaper alternative could also be regarded as reasonable. This approach applies to care, accommodation, aids, equipment and prostheses. A court should make a broad, fact-sensitive assessment rather than apply mechanical percentage discounts, including for age or gratuitous care. Where a more expensive prosthesis provides objectively significant improvements in mobility, safety, comfort and confidence, its cost may be recoverable if the claimant’s choice is reasonable. Future losses must reflect the probabilities of competing medical and practical contingencies without speculation about future technological developments.

This was an assessment of damages following the defendant NHS Trust’s admission of clinical negligence. The negligence caused an acutely ischaemic left leg to deteriorate, resulting in unsuccessful below-knee amputation surgery followed by an above-knee amputation. The claimant sought damages for pain, suffering and loss of amenity, care, earnings, accommodation, prostheses, aids and therapies.

The principal disputes concerned the effect of the claimant’s age on general damages, the appropriate discount for gratuitous care, the reasonableness and future replacement of a costly Genium prosthesis, and whether future accommodation should be assessed by reference to renting or purchasing suitable premises.

1. Assessment of damages. Liability was admitted. The court assessed the claimant’s losses by applying the test of reasonableness to her reasonable requirements and needs.
2. General damages. Age was one factor among all the circumstances. No mechanical percentage discount was justified. The court considered the claimant’s pre-injury fitness, activity, employment, insight, psychological effects, disfigurement, loss of independence and life expectancy. Damages for pain, suffering and loss of amenity were assessed at £87,500.
3. Care. The claimant’s family had provided care at unpredictable times, including evenings, weekends and periods of continuous presence. Aggregate rates were appropriate. A 20 per cent discount was applied to gratuitous care, rather than the 33 per cent sought by the defendant.
4. Prosthesis. The Genium produced significant objective and subjective improvements over the Orion, including safer and more natural walking, improved stamina, confidence and protection against falls. The claimant acted reasonably in purchasing it, and the purchase cost was recoverable in full. A replacement Genium at about age 76 was also allowed in full. Thereafter, the court allowed a proportionate award reflecting the possibility that a lighter locked-knee prosthesis would become more suitable.
5. Accommodation and other losses. Future accommodation was assessed on a rental basis because the claimant would reasonably continue renting and purchase would cause an inadequate award for other needs. The claim for the Motability vehicle deposit and the Alexander Technique was disallowed. Agreed or sufficiently substantiated claims, including future podiatry, were allowed subject to the stated adjustments.

First-instance assessment of damages in a claim in which liability had been admitted. No appellate history was stated in the judgment.