Totham v King's College Hospital NHS Foundation Trust

Damages for catastrophic personal injury must, so far as possible, provide full compensation for pecuniary loss. A claimant who takes reasonable steps to mitigate loss may recover the reasonable cost of those steps, even where another reasonable and cheaper option existed. The defendant bears the consequences of a reasonable choice within the available range.

Future losses must reflect the assessed chances of future events. A first-instance judge bound by Court of Appeal authority may identify that authority as inconsistent with higher authority, but must apply it unless it is overruled or otherwise displaced. In assessing damages, courts should avoid double recovery and should distinguish losses already incurred from prospective losses.

The claimant suffered serious brain injuries during delivery. Liability was admitted, and the parties had agreed many heads of damage. The court determined the remaining disputes concerning general damages, gratuitous and professional care and case management, holidays, lost earnings, childcare, treatment, orthotics and transport.

The principal legal issues included the application of the full-compensation and mitigation principles, the ceiling and discount principles for gratuitous care, the recoverability of professional case-management expenditure, and whether damages could be awarded for lost earnings during a shortened life expectancy.

1. General principles. The purpose of damages was, so far as possible, to place the claimant in the position she would have occupied absent the negligence. Future losses required an assessment of the chances of future events. Under the mitigation principle, the relevant question was reasonableness. A claimant could recover the cost of reasonable mitigation even if a cheaper reasonable alternative existed.
2. Care and case management. Past gratuitous care was subject to the commercial-cost ceiling and a 25% discount. The same discount applied to gratuitous case management, although the aggregate National Joint Council rate was appropriate. Professional case-management costs were recoverable in full because the claimant had acted reasonably in appointing and retaining the provider, relying on her experience and professional advice.
3. Lost years. The court was bound by Croke v Wiseman [1982] 1 WLR 71 to reject the claim for lost earnings after the claimant’s predicted death. The judge considered that rule inconsistent with full compensation and with Pickett v BREL [1980] AC 136 and Gammell v Wilson [1982] AC 227, agreeing with the reasoning of the Court of Appeal in Iqbal v Whipps Cross University Hospital NHS Trust [2007] EWCA Civ 1190. The point was suitable for resolution by the Supreme Court.
4. Future claims. The childcare claim was rejected because the evidence did not establish a more than fanciful chance that the claimant would have the cognitive capacity to parent. Hippotherapy, orthotics and adapted transport were allowed to the extent proved, with appropriate reductions for uncertainty and double recovery.
5. The agreed heads of damage were approved. The disputed items were allowed to the extent set out in the judgment, producing total capitalised damages of £10,135,511.

First-instance decision. The judgment records no prior appellate decision in this claim.