Ellison v University Hospitals of Morecambe Bay NHS Foundation Trust

Compensatory damages for future care, accommodation and equipment must meet the claimant’s reasonable needs arising from the injury. Proportionality is relevant to whether the same or a substantially similar benefit could be achieved by a less expensive means. It is not a general rule that a claimant loses the cost of a uniquely effective remedy merely because it is expensive.

Where a child’s compensation incidentally benefits parents, that benefit should not ordinarily reduce the child’s damages. A deduction may be justified only where it is reasonable to expect the child and parents to make an arrangement that compensates the child and avoids under-compensation.

The claimant suffered severe cerebral palsy and profound physical and cognitive impairment following negligent medical treatment at birth. Liability had been admitted and judgment entered by consent. The trial concerned the outstanding assessment of damages, including general damages, accommodation, a home hydrotherapy pool, holidays and transport.

The principal questions were whether the family would move from Cumbria to London, whether an in-home hydrotherapy pool was reasonably required, whether deductions should be made for benefits to the claimant’s parents, and whether awards should be made for a lift and post-19 holidays.

1. General damages. The court assessed pain, suffering and loss of amenity at £295,000. The Judicial College Guidelines were a useful consistency reference, but the award had to reflect the claimant’s exceptionally severe physical and cognitive impairment, profound dependence and frequent pain, while taking account of her limited insight and the likely relief from hydrotherapy.
2. Future costs and proportionality. The claimant was entitled to the reasonable costs necessary to meet her needs. Proportionality required consideration of whether a less expensive means would provide the same or a substantially similar benefit. It did not justify refusing an expensive item which alone provided significant relief from otherwise uncompensated harm.
3. Hydrotherapy pool. In the unusual and probably exceptional circumstances, full immersion was the only effective means of providing substantial relief from the claimant’s frequent and severe pain. External pools, bathing and other measures were not reasonably equivalent, because access was limited and the symptoms were partly unpredictable and nocturnal. The cost of an in-home pool was therefore reasonably required.
4. Parental benefits. No deduction was made for the parents’ possible saving from living in the claimant’s accommodation. The claim was brought for the child, and the parents’ benefit was incidental. Their substantial uncompensated sacrifices also meant it was unreasonable to expect them to pay rent or otherwise reimburse the claimant.
5. Accommodation and other heads. The family’s move to London was accepted as intended and likely. A lift was not reasonably required because family interaction could be provided at ground-floor level. No post-19 holiday award was made, as family holidays would not replace the adult benefits lost through the injury. Future adapted-vehicle replacement costs were assessed using a £35,000 vehicle cost plus £11,504 adaptations, subject to the agreed deduction.

First-instance assessment of damages following liability judgment entered by consent on 4 December 2012. No appellate decision is stated in the judgment.