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Defendant liable to make interim payments in a total of £1.5M

TTT v Kingston Hospital NHS Trust [2011] EWHC 3917 (QB), 25.11.11, Owen J

  1. The Claimant, a child, claimed damages against the Defendant hospital for catastrophic brain injury the Claimant had suffered due to perinatal meningitis. The Claimant's injuries include diplegic/ataxic cerebral palsy with microcephaly, global developmental delay, epilepsy, and severe behavioural problems. Liability was admitted.

  2. Previous interim payments having already been made in a combined sum of £1.1M, the Claimant applied for a third interim payment in the sum of £400,000. If awarded, this would therefore lead to a total of interim payments of £1.5M.

  3. The previous interim payments had been made in April 2010 (£300,000) and July 2011 (£800,000). The second of those payments had been used, with other funds, to purchase an appropriate property for the Claimant and his family. The property was purchased in the autumn of 2011. The Claimant and his family continue to live in rented accommodation, because the newly purchased property requires adaptation in order to be suitable for the Claimant.

  4. On 24 November the Claimant's application for a third interim payment came before Owen J. Having heard argument, Owen J reserved judgment until 25 November 2011, when he delivered an oral judgment.

  5. The evidence submitted by the Claimant was that the further sum requested was required to fund the required adaptations to the newly acquired property, estimated by the Claimant's expert at a little over £300,000; together with care and case management for the next 18 months or so, which were estimated at increasing to a little over £100,000 p.a.

  6. However, the Claimant contended that it was not necessary to prove an immediate need for the sum requested, because the sum requested did not exceed a reasonable proportion of the capital sum likely to be awarded at trial, and accordingly it was not necessary to resort to the second limb of the test described in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204 (paragraphs 43-45).

  7. The Defendant resisted the application, alleging that the capitalised lump sum likely to be awarded at trial did not exceed £1.25M, the Claimant had already received such a sum as to make a further interim payment disproportionate, that awarding a sum such as to allow the proposed building works would create an "unlevel" playing field, and that there was no reasonable need for the sums sought.

  8. The Defendant had not served any expert evidence.

  9. In the application the Claimant relied, in relation to assessing the likely capitalised lump sum at trial, on past losses up to the earliest anticipated date of trial (April 2014) together with accommodation costs (including future running costs).

  10. At the hearing, it was not in dispute that it was appropriate for the Court to take into account future loss of earnings, if necessary. The Defendant agreed for the Court to order an interim payment on the basis of 90% of the capitalised lump sum likely to be awarded at trial, estimated on a conservative basis.

  11. The Claimant relied on expert evidence to the effect that a clear prognosis would not be possible until April 2013 at the earliest and that therefore a trial could not occur until at least April 2014. Accordingly the capitalised lump sum likely to be awarded at trial should be assessed as at an assumed earliest trial date of April 2014 and should therefore include losses up to that date. The Defendant disputed this approach, arguing that the anticipated trial date was in issue and had yet to be determined. However, the Defendant did not adduce expert evidence as to whether, or when, a clear prognosis could be given. Owen J accepted the Claimant's submission as to the earliest expected trial date.

  12. The Defendant did not accept the proposed adaptation costs, suggesting that a sum of £100,000 was appropriate to cover some, but not all, necessary building works. However, it was contended on the Claimant's behalf that it was reasonable to undertake all the works; furthermore that the behavioural problems suffered by the Claimant meant that piecemeal building works carried out with the Claimant resident in the property would be inappropriate and would cause further behavioural difficulties. The Judge accepted the Claimant's contention as to adaptation costs, but said that, even if adaptation costs were omitted from the calculation, an interim payment of £400,000 would not take the total of interim payments above a reasonable proportion of the likely capitalised lump sum value of the claim at trial.

  13. The Claimant claimed that the ongoing cost of Applied Behavioural Analysis ("ABA") therapy, at £1,950 per month, is likely to continue and to be awarded at trial. The Claimant's father gave evidence that ABA therapy is of considerable benefit to the Claimant. The Defendant argued that such costs are not reasonable, as ABA therapy is not supported by expert evidence, and that they therefore should be left out of account in determining the likely capitalised lump sum at trial. The Judge accepted that ABA therapy costs up to the date of trial are likely to form part of the capitalised lump sum.

  14. The Defendant also disputed the care and case management costs, stating that its expert had not yet reported, and that the Claimant's expert's figures seemed high. The Defendant suggested allowing a sum of £50,000 p.a.

  15. The Defendant also disputed the anticipated Court of Protection Costs, estimated at £15,000 pa. However, the Judge used the Claimant's estimate in calculating the likely capitalised lump sum at trial.

  16. On the basis of his decisions as to appropriate figures for relevant heads of loss, Owen J assessed the relevant capitalised lump sum as at the earliest likely trial date of April 2014 as over £2M. It being agreed that it would be appropriate to award 90% of the capitalised lump sum, he ordered an interim payment in the requested sum of £400,000, bringing the total of interim payments to date to £1.5M.

Toby Gee represented the Claimant, instructed by Stephanie Code of Kingsley Napley.


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