First quantum-only Cerebral Palsy case to go to trial in over 6 years

The decision in CCC (suing by her mother and litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) is the first quantum-only Cerebral Palsy case to go to trial in over 6 years. The Claimant in the case was represented by James Drydale, a Partner and Head of Clinical Negligence at Sheffield-based law firm, Taylor Emmet and Richard Baker KC and Sarah Edwards of 7 Bedford Row.

The Trial, which lasted ten full days, was heard by Mr Justice Ritchie who handed down Judgment on 12th July 2023. It is rare that a cerebral palsy case goes all the way to trial. The last cerebral palsy case to go to the trial was, by coincidence, against the same Trust in the landmark ruling of JR v Sheffield Teaching Hospitals NHS Foundation Trust [2017].

The case is important as it provides important guidance to clinical negligence practitioners on several issues, including:

1. night time care;
2. awards for gratuitous care;
3. approach to be taken when calculating Life Expectancy;
4. the benefits of hydrotherapy;
5. impact that ‘Day in the Life of’ videos can have on a case.

Since judgment was handed down, the Claimant’s team applied for and has recently been granted permission to leapfrog a significant part of the damages claim in relation to “lost years” to the Supreme Court. This will challenge the controversial decision in Croke v Wiseman (1981). The appeal could overturn the current restriction on the ability of children to claim for future losses resulting from a reduction in their life expectancy.

Case details

The Claimant was born on in February 2015 at Sheffield Teaching Hospitals NHS Foundation Trust. Four years after her birth the Trust admitted that it was responsible for failing to prevent the Claimant suffering severe chronic partial hypoxic ischaemia before and during her birth, which caused the CP.

The Claimant was aged 8 at the time of the Trial. She cannot walk or talk, cannot eat by mouth, she is severely visually impaired, she is doubly incontinent, has epilepsy and has a major cognitive deficit. The Claimant requires the support of two care workers to provide 24 hours per day care, and this was a central feature of the Claimant’s case.

Night time care

A key area of dispute was the nature of the night time care required by the Claimant; namely the need for one, not two, awake carers. It was the view of the Claimants’ care expert that two awake carers were needed, which matched the experience of the Claimant’s’ mother, case manager, deputy and support worker. This is the evidence that was ultimately accepted by the judge and the figures for the cost of care submitted by the Claimant’s care expert were accepted.

The Judge found in 5 specialisms – Care, Occupational Therapy, Paediatric Neurology, Physiotherapy and Accommodation that the Defendant’s experts had not performed well at trial. He was highly critical of their costs analyses. This will be of considerable interest to practitioners as these expert witnesses are regularly instructed in cases of maximum severity like this.

The Judge said of Mr Chakraborty, the Care and OT expert instructed by the Defendants that his “…evidence in relation to care was flimsy and unimpressive, but more importantly, I consider that Mr. Chakraborty is not an expert in constructing, designing and managing care packages for children with cerebral palsy. He did not have case management qualifications or experience and I do not consider that he was acting within his CPR part 35 responsibilities professionally or properly in holding himself out to be an expert on maximum severity care packages or the costing thereof.”

Gratuitous Care

The Judge awarded a full gratuitous care claim with zero deduction. Very commonly 25% is deducted from the cost of care given by family members but the judge recognised the uncommon strain the mother was put under, and her particular commitment so made no deduction.

Calculating Life Expectancy

When considering the evidence of the two paediatric neurologists on the case, the Judge was critical of Dr Baxter, instructed by the Defendants, finding that he did not put a proper part 35 statement on his reports, he extracted one medical record adverse to the Claimant’s case on disturbed sleep and elevated it out of all proportion in the joint report and he displayed no desire to understand the difference between the burden of proof in Court - on the balance of probabilities - and the medical requirement in the publication of research for the conclusions therein to be to a scientific standard. 

Overall, he preferred the evidence of Dr Jardine, instructed by the Claimant whom he found to be a helpful, balanced and persuasive witness.

It was Dr Baxter’s position that the Claimant’s life expectation should be based on median life figures and calculated this to be age 23. Dr Jardine took a different more conventional stance, that the Claimant’s life expectation was to age 30, relying on the published reports of Strauss et al and Brooks et al, appropriately adjusted. 

The parties settled at age 29 at the door of Court (within a few days of the start of trial). The judge found this agreement was correct and he approved it. In comments which will be helpful to practitioners advising parties in cerebral palsy cases, the judge found Dr Baxter’s approach on median survival to be “unusual and he failed to set out the range of opinions in his report thereby once again ignoring the clear duties laid upon experts when reporting objectively for the Court, not for one party.”

The benefits of hydrotherapy

It is not unusual for claims involving CP to include a claim for a home hydrotherapy pool, with Defendants routinely taking a robust stance in challenging such claims. In this case, Mr Justice Ritchie compared the evidence of the claimant’s physiotherapy expert, Susan Filson, with the evidence of the Defendant’s physiotherapy expert, Eileen Kinley.

He found Susan Filson’s experience of cerebral palsy children to be ‘’long and impressive’’, which includes worldwide research into the benefits of regular hydrotherapy as part of a rehabilitation regime. She had also researched (including personal visits) the pools available to the Claimant around her local area, which turned out to be not available or not suitable.

The Judge found that she was ‘’far more up to date’’ than the defendant’s expert who had stopped NHS practice with cerebral palsy children 18 years ago, and who was not prepared to accept that hydrotherapy had any benefits other than being enjoyable. It was the Defendant’s case that hydrotherapy was worthless for anything other than orthopaedic post operative recovery, an argument that was criticised by the Judge as being ill-informed given the substantial use of hydrotherapy for cerebral palsy children in the UK, in rehabilitation centres, in special educational needs schools and the research papers worldwide on it.

‘Day in the Life of’ videos

The use of ‘Day in the Life of” videos are increasingly being used in complex, high-value litigation claims. In this case, the video was shot over a 24-hour period and demonstrated the Claimant’s care needs, as well as providing powerful visual evidence of the benefits of hydrotherapy treatment. The pool filming showed the Claimant kicking her legs and squealing with delight which demonstrated the benefits of water-based activity for a girl who could hardly undertake exercise or derive enjoyment from life in any other ways.

The Court accepted the Claimant’s careful analysis of the availability and suitability of the local aquatic therapy facilities, concluding that the costs of building and running a home pool, although amounting to over £900,000 in this case, were reasonable and proportionate. The Day in the Life video was crucial evidence in highlighting the importance of hydrotherapy to this little girl.

Pre-trial negotiations

A negotiation meeting had taken place before trial, but the case was pursued with the full support of the Court of Protection appointed deputies and the Claimant’s mother and litigation friend because the Defendant’s offer was much too low at a lump sum of £5.335 million and annual payment of £348,000, so low that had it been accepted, it would have been difficult to justify accepting this offer at an approval hearing before a High Court judge.

The judge awarded a lump sum of £6,866,615 and an index-linked periodical payment of £394,940 per year.

In the Judgment, Mr Justice Andrew Ritchie, spoke of the hugely impressive determination and devotion of the Claimant’s mother throughout all the daily battles fought by her, on the Claimant’s behalf, to keep her alive, to keep her safe and to make her life as full and enjoyable as is possible within the challenging restrictions caused by her very severe disabilities.

James Drydale, Solicitor for the Claimant said, “It is pleasing that all the intense focus we have put into this will not only change a little girl’s life but will also assist other families and their lawyers pursue cases like this. This is an important case that brings clarity on many issues commonly seen in these complex cases but that don’t often come before the court.”

The Claimant’s barrister, Richard Baker KC, 7 Bedford Row said, "Often claims on behalf of seriously injured children are hard fought on both sides but this case demonstrates the importance of parties working collaboratively to try to reach agreement on the best means of meeting an injured parties needs. If that cannot be achieved, lawyers should be prepared to litigate on behalf of their clients rather than accept an imperfect settlement. I am pleased that this case will provide greater clarity for parties to other claims and will hopefully lead to a more constructive approach to settlement. Most of all, I am pleased to have help achieve an outstanding outcome for a wonderful and much-loved young girl". 

The Claimant awaits a date for the Supreme Court hearing on the important issue of lost-years in infant claims which has the potential to establish new case law on the long-regarded controversial decision established in the case Croke v Wiseman.