Robshaw v United Lincolnshire Hospitals NHS Trust – an Analysis of the Damages Awarded
The case of Robshaw v United Lincolnshire Hospitals NHS Trust involved a child Claimant, James Robshaw, who was born on 9 December 2002. Liability for his negligently mishandled birth at Lincoln County Hospital, Lincolnshire, which caused significant brain damage leading to serious disabilities, was admitted. The judgment as to damages was given on 1st April 2015 and provides an interesting illustration of the various different heads of damage in high value child brain injury claims.
Although various issues had been agreed between the parties, the Judge had to adjudicate on certain significant disagreements, not the least of which was the child’s life expectancy, which, after hearing substantial evidence and argument, the judge found to be 63. We set out below the results of the parties’ agreement/the court’s decision in respect of the damages awarded, with a brief comment on each.
1. General Damages
The significance of the child’s injuries was agreed. He suffered from severe, quadriplegic, dyskinetic, cerebral palsy, characterised by frequent involuntary writhing movements, retained a high intellect and insight but had difficulties in communicating. He was continent and could indicate when he needed to use the toilet. Damages for pain and suffering and loss of amenity were agreed at £290,000.
2. Future Care and Case Management
In relation to these two crucial factors, it was agreed that there should be an annual payment and that this would cover two distinct periods
- From the age of 12 to 19
Hourly rates were agreed at £10 per hour weekdays and £11 per hour weekends and holidays. Day care during school term time was agreed at 7 hours per weekday x 2 carers whilst at the weekends during term time and throughout school holidays it was agreed at 14 hours per day x 2 carers. Night care was agreed at 10 hours per night (paid for 6), x 2 sleep-in carers. The Judge decided that an average of 8 carer week’s worth of waking care should reflect the fact that the child may need attention more than twice a night. The cost of case management was agreed at £21,000 pa. Annual insurance was agreed at £135 per annum.
b. From the age of 19
Hourly rates were agreed at £10 per hour weekdays and £11 per hour weekends and holidays. Day care was agreed at 14 hours per day x 2 carers (full double-up) whilst night care was agreed at 10 hours per night (paid for 6), provided x 2 sleep-in carers. An allowance for waking night care was agreed (although the extent of the allowance is disputed). The cost of case management was agreed at £21,000 pa. Annual insurance was agreed at £135 per annum, annual training costs were agreed at £2,000 per annum and food and other expenses were agreed at £4,420 per annum.
c. Additionally it was held by the Judge that provision be made for the payment of the Care Team Leader and he awarded 30 hours per week x £4 an hour uplift for the employment of the Team Leader to the age of 19 and 25 hours per week x £5 an hour uplift thereafter.
d. £3,250 per annum was awarded for food, leisure and subsistence for the carers, £1,500 to age 19 and then £2,000 per annum for recruitment and £1,659 for training.
e. Provision was also made for the cost of the child’s Deputyship.
The purchase price of a property, amounting to £295,000 was allowed as was an amount to demolish and rebuild it, with an added contingency of 10%. The cost of a 5 x 3 metre swimming pool was allowed, as was £1,500 pa for gardening, decorating and DIY.
The cost of acquiring a VW Caravelle (£42,000) was agreed with a five yearly replacement. Credit for a £13,000 vehicle from age and an £18,000 vehicle from age 35 was to be given. An award of £2,000 per annum for increased insurance was made, with an award for additional mileage of 5,000 to age 18 and 3,000 miles per annum thereafter.
Provision was also made for holidays. It was decided that £14,000 was appropriate for long haul holidays and £11,000 within Europe. An award of £96,000 was made for the acquisition of a motor home, with £1,000 per annum for refurbishment. The holidays were to be taken in 3 yearly cycles. Activity holidays attracted an award of £3,000 per annum and £1,000 per annum was set aside for weekend breaks.
6. Loss of Earnings
The Judge assessed the child’s annual gross earnings over his working life from the age of 22 would be £42,000 subject to a modest reduction to reflect employment expenses and that, but for his disabilities he would have worked until the age of 70. A round-figure sum of £7,500 was awarded to cover loss of part time earnings from the age of 16 to 22
7. Additional Awards
There were a multitude of additional awards, all designed to enhance the child’s future quality of life, the principal ones of which are as follows:
- It was agreed that provisional damages and variable periodical payments should be awarded to deal with the child’s increased needs in the event that he developed epilepsy, the risk of which was accepted as around 10%
- In relation to the critical issue of future care costs the judge decided that the child would require two carers, both day and night.
- The sum of £85,000 was agreed to cover future psychological assistance
- Education needs attracted the sum of £150,000
- The sum of £2,820, to the age of 19 and £780 thereafter was agreed for Occupational Therapy
- The cost of future Orthopaedic Surgery was agreed at £11,922.
- Physiotherapy was agreed on the basis 16 annual from 19 to 21, in the sum of £1,920 per annum, 20 annual maintenance sessions from the age of 21 to 45, in the sum of £2,400 per annum, additional physiotherapy after botox of 8 sessions, totalling £960 and additional physiotherapy orthopaedic surgery of 15 sessions, totalling £1,800. Provision was also made for the acquisition of physiotherapy equipment.
- The cost of future orthotics was agreed at £72,153.
- Augmentative and alternative communication therapy was also agreed upon in a rolling program for the age of 12 onwards
- The following items are agreed:
- Main eye gaze system at a cost of £12,699, with provision for replacement every 3 years.
- Mounting system for desktop use at a cost of £250 with provision for replacement every 3 years
- Mounting system for floor standing use at a cost of £900 with provision for replacement every 3 years
- Mounting system for wheelchair use at a cost of £1,850 with provision for replacement every 3 years
- I-Pad with software, mounting and software at a cost of £750 with provision for replacement every 3 years
- Laptop PC for carers at a cost of £750 with provision for replacement every 3 years
- Additional back-up disk, switchbox, cabling etc at a cost of £500 with provision for replacement every 3 years
- Text capture system at a cost of £2,370 with provision for replacement every 3 years
- Adaptations of bed controls at a cost of £2,000 with provision for replacement every 3 years
- Adaptations of toys and electrical devices at a cost of £450 with provision for replacement every 3 years
- Mainstream software at a cost of £300 with provision for replacement every 3 years
- Technical support at a cost of £500 per annum
- Insurance of AT system at a cost of £250 per annum
- Internal door openers at a cost of £1,500 each x 10 with provision for replacement every 10 years
- Window openers at a cost of £675 each x 10 with provision for replacement every 10 years
- Curtain openers at a cost of £700 each x 10 with provision for replacement every 10 years
- Power socket controllers at a cost of £250 each x 11 with provision for replacement every 10 years
- Lighting controls at a cost of £120 each x 10 with provision for replacement every 10 years
- Annual maintenance of environmental controls at a cost of £1,250 per annum
- Discount for IT equipment which would have been purchased in any event at the rate of £500 every 5 years.
Future Aids and Equipment
- The Chunc manual wheelchair (and then an adult manual wheelchair) at a cost of £3,000, with a replacement every 5 years.
- l maintenance of the manual wheelchair, costing £100 per annum.
- Replacement tyres of the manual wheelchair, costing £100 per annum.
- Wheelchair insurance for the manual wheelchair, costing £25 per annum.
- Portable ramps at a cost of £135 with replacement every 10 years.
- Replacement batteries for the power wheelchair, costing £180 per annum.
- Insurance for the power chair, costing £69.50 per annum
- Recharging for the power wheelchair, costing £91.25 per annum
- Portable hoist, costing £2,337 with replacement every 10 years.
- Annual maintenance for portable hoist – £200 per annum.
- Lecky bath seat at a one-off cost of £556.
- Burnett body supports, costing £250, with replacement every 3 years.
- Presalit changing table, costing £2,700, with replacement every 10 years.
- Maintenance costs of changing table, at a cost of £100 per annum.
- Boris toilet seat, costing £1,828, with replacement every 5 years.
- Careflex chair, at a cost of £1,500, with replacement every 5 years.
- Spare covers for Careflex chair, costing £250, with replacement every 5 years.
- P-Pod chair, costing £1,400, with replacement every 5 years.
- Maintenance of bed, at a cost of £100 per annum.
- Soft play equipment, at a cost of £3,000, with replacement every 10 years.
- Batteries for spare power chair, costing £180 per annum.
- Insurance for spare power chair, costing £69.50 per annum.
- Football wheelchair, costing £9,500, with replacement every 6 years until age 30.
- Seating for football wheelchair, costing £3,400, with replacement every 6 years until age 30.
- Insurance for football wheelchair, at a cost of £69.50 per annum
This detailed decision illustrates just how many different heads of damage can be claimed in a case of this complexity. Indeed, this article highlights only the main items and there were various further items including increased cleaning, parking and telephone costs as well as bed linen and towels for the child’s carers and the acquisition of various additional aids for the child. Nevertheless, it serves to demonstrate just how assiduously the Court will consider the future needs of a child and its carers in serious cases such as those involving serious brain injuries.