CCC v Sheffield Teaching Hospitals

In assessing future special damages, the court must identify the claimant’s reasonable needs caused by the injury and then consider whether the claimed expense is reasonable compared with a less expensive method achieving the same or substantially similar result. Proportionality is relevant in that limited sense; it is not a general cap on damages.

A claimant need not act reasonably in every respect to mitigate loss. The defendant must prove that the claimant acted unreasonably in failing to adopt an alternative response. In a severely disabled child’s claim, the reasonableness of a home hydrotherapy pool depends on past advice and use, past and future benefit, the suitability and availability of alternative pools, and relative cost.

The claimant, a child with severe cerebral palsy caused by admitted clinical negligence during her birth, brought a claim for damages. Liability had been admitted before proceedings. Her mother’s related psychiatric injury claim had settled.

The trial concerned the quantification of substantial past and future losses, including care, case management, accommodation, equipment, transport, therapies, education and a proposed hydrotherapy pool. The central issues included whether the claimant required two waking night carers, whether her mother should provide gratuitous care, whether alternative accommodation and hydrotherapy arrangements were reasonable, and how proportionality, mitigation and interest affected the award.

1. Relief from sanctions. The claimant was permitted to rely on three care workers’ witness statements and was granted relief from sanctions insofar as necessary. The evidence was not a breach of the existing order or, alternatively, the breach was neither serious nor significant. The evidence was served eight months before trial and was important because the issues and the claimant’s needs had crystallised later. If stage two of Denton v TH White had been required, relief would also have been granted. (paras [16]-[22])
2. Quantification and proportionality. The claimant had to prove injury, causation of injury, causation of loss, itemisation, and reasonableness. The court applied the full-compensation principle in Livingstone v Rawyards Coal, Pickett v British Rail and Heil v Rankin. Proportionality has a limited role. The court must ask whether the claimant reasonably needs the expense and whether the same or substantially similar result can be achieved by a less expensive method. There is no general proportionality ceiling on future damages. (paras [103]-[113])
3. Mitigation. The defendant bears the burden of proving that the claimant acted unreasonably in failing to mitigate. It is insufficient to show that another course would have been reasonable. The claimant is not required to choose the least burdensome reasonable response. (paras [114]-[116])
4. Care and night provision. The claimant’s reasonable future needs required two daytime carers and two waking night carers. Her unpredictable seizures, vomiting, incontinence, spasms, airway problems, pain and need for regular repositioning placed her outside the threshold for sleeping night care. Her mother was not required to provide gratuitous care for the next 11 years. The court awarded commercial care by periodical payments. (paras [173]-[180])
5. Hydrotherapy pool. The court identified five relevant factors: past professional advice and use; past physical or psychological benefit; likely future benefit; the availability and suitability of alternative pools; and relative cost. Applying those factors, the claimant had been repeatedly advised to undertake hydrotherapy, had obtained significant benefit from it, and needed regular and flexible access which local pools could not provide. A home pool was therefore reasonably necessary and £607,100 was awarded. (paras [184]-[192])
6. Accommodation and other losses. The claimant’s purchase and adaptation of The New House were reasonable. Her mother’s “but for” accommodation costs were not deducted from the claimant’s accommodation award, although the claimant’s own hypothetical accommodation costs had to be considered. Awards were also made for care, case management, accommodation, equipment, transport, therapies, holidays and other expenses. The claim for lost years and additional school support failed. (paras [135]-[141], [162], [193]-[204])
7. Disposition. The court awarded a total lump sum of £6,866,615 before interim payments, less interim payments of £2,700,000, leaving a net lump sum of £4,166,615. Periodical payments of £394,940 per annum were ordered for care and case management, indexed by ASHE 6115 at the 80th centile. State care payments were to be refunded annually under a limited Peters’ Promise. (para [205])