Robshaw (A Child) v United Lincolnshire Hospitals NHS Trust

In assessing damages for a severely disabled claimant, life-expectancy statistics provide a framework, but the court must assess the individual presentation and relevant future circumstances. It may place a claimant between statistical categories where the categories do not fit the evidence. Adjustments should be made after converting the statistical data to the relevant domestic population where that is the logical approach on the evidence. A well-funded and demonstrably effective care regime may justify an increase in life expectancy where it reduces identifiable risks, even without statistically conclusive evidence. Damages for reasonable needs require an evaluative assessment of all the circumstances. Proportionality may require consideration of cheaper means producing the same or substantially similar result, but there is no general rule limiting compensation whenever a more expensive option produces greater benefit.

Liability for the negligent management of the claimant’s birth had been admitted and judgment for damages to be assessed was entered on 31 January 2013. The assessment concerned substantial future losses arising from severe cerebral palsy and brain damage, including life expectancy, care, accommodation, therapies, equipment, transport and case management.

The principal disputes concerned the claimant’s classification within the Strauss life-expectancy data, the effect of a gastrostomy and future self-feeding, the effect of future care and lifestyle, the reasonable form of accommodation and numerous consequential needs. The judgment determined the disputed items to enable the parties to calculate the final award.

1. Life expectancy. The court rejected an approach based on splitting the difference between two reasonable expert opinions. Statistical data were an important starting point, but the court had to assess the claimant’s individual characteristics, clinical presentation and future circumstances. The claimant’s use of a Neater Eater qualified mechanically as self-feeding, but his inconsistent use meant that he could not presently be placed wholly in the self-feeding category. A starting point within the statistical spectrum was appropriate.
2. The Strauss figures were first converted to projected UK life expectancy. On the evidence in this case, adjustments for individual factors were then made. The court was not persuaded that the contrary approach was correct. It held that the quality of future care and lifestyle could justify an upward adjustment where the care would reduce identifiable mortality risks. A three-year total uplift was allowed, subject to a modest reduction for the risk of not surviving to age 15, producing a life expectancy to age 63.
3. Reasonable needs and proportionality. Full compensation required an evaluative judgment as to how the claimant’s reasonable needs could be met. Cost and proportionality were relevant, particularly where a cheaper option could achieve the same or substantially similar result. They did not create a general rule requiring the court to reject an option that provided a materially greater benefit merely because it cost more.
4. Accommodation and facilities. Demolition and a new purpose-built home were reasonable on the particular evidence because adaptation would produce serious circulation and access problems and would not provide a satisfactory lifetime home. The conclusion was fact-specific. A home swimming pool was also justified because swimming provided real and tangible physical and psychological benefits which could not conveniently be obtained from the available public facility. No general entitlement to such facilities followed.
5. Claims for future childcare were rejected because the prospects of fatherhood were small and an award would have been artificial. Detailed findings were also made on care, equipment, transport, therapies, Deputyship and multidisciplinary meetings. The parties were directed to take financial advice and seek agreement on the final calculations, with further submissions or a hearing if necessary.

First-instance assessment of damages following an admission of liability and judgment for damages to be assessed entered on 31 January 2013.