HS v Lancashire Teaching Hospitals NHS Trust

Damages for catastrophic disability must reflect the claimant’s reasonable and proportionate care needs on the evidence. Parents are not ordinarily required to provide hands-on care merely because they are parents, particularly where the claimant’s needs are unpredictable and materially exceed ordinary parental supervision. The court may allow professional care even where it will not be used at full capacity at every moment.

A home hydrotherapy pool is not automatically recoverable. Pleasure alone will ordinarily be insufficient; the claimant must demonstrate real and tangible benefit, while reasonable alternatives must be considered. Future losses may be assessed by a broad-brush lump sum where the claimant’s hypothetical educational and employment path cannot be established precisely. A deduction for travel expenses should not ordinarily be encouraged.

This was a clinical negligence claim arising from the negligent post-birth management of HS in October 2006. Liability had been admitted before trial, and the hearing concerned the assessment and approval of damages.

HS had catastrophic, permanent disabilities requiring extensive care. The principal disputed issues concerned the level and duration of professional day and night care, case-management costs, loss of earnings, additional holiday costs and the recoverability of a home hydrotherapy pool. The court also approved agreed heads of loss and determined the appropriate periodical payments.

1. Future care. The reasonable and proportionate measure of recoverable care was determined by HS’s actual needs, including the unpredictability of movements and behavioural disturbance. Her parents were not required to act as second carers merely because they were parents. Two full-time day carers and one waking and one sleeping night carer were recoverable from the date of judgment. The sleeping-carer uplift was assessed at four weeks per year until age 19 and two weeks thereafter. From age 19, the day/night division was fixed at 14:10 (paras [18]-[31]).
2. Loss of earnings. The evidence could not establish HS’s likely intellectual, educational or occupational path with precision. A broad-brush lump sum was therefore appropriate, and £300,000 was awarded. No deduction was made for travelling expenses. Eagle v Chambers did not establish a general principle requiring such a deduction, and Dew v NCB indicated that it should not be encouraged (paras [36]-[40]).
3. Hydrotherapy. A home pool was not reasonable as a specific head of damage. Pleasure alone was insufficient, and suitable private facilities were available. The cost of twice-weekly visits to such a facility was recoverable for life. The court applied the fact-sensitive approach described in Robshaw v United Lincolnshire Hospitals (paras [44]-[48]).
4. Orders. The agreed heads of damage were approved. Future care and case-management costs were to be met by periodical payments of £225,280.80 annually from 2015 to 2024 and £246,421.03 annually from 2025 onwards. The total award was £3,592,336.

First-instance determination of damages following admission of liability. No prior appellate decision is stated in the judgment.