Ellison v University Hospitals of Morecambe Bay NHS Foundation Trust

Factual and Procedural Background

The claimant, a child born in 2007 at The Hospital in The City, suffered severe hypoxic ischaemic injury due to a feto-maternal haemorrhage before delivery. This resulted in catastrophic physical and cognitive impairments, including severe quadriplegic spastic cerebral palsy. The injuries were admitted to be caused by negligence of staff employed by the Defendant NHS Trust in 2012, with liability judgment entered by consent later that year. Since then, the dispute has concerned the quantum of damages for past and future losses.

The claimant’s claims and the defendant’s counterclaims have been updated and partially agreed upon, particularly regarding future care and case management payments. The trial addressed remaining disputed issues concerning general damages, future accommodation costs, hydrotherapy pool provision, future holiday costs, and future transport costs. A further unresolved issue relates to whether certain damages should be awarded as lump sums or periodical payments.

Legal Issues Presented

1. The appropriate amount of general damages for pain, suffering, and loss of amenity.
2. The reasonableness and quantum of future accommodation costs, including the location of the family’s new home.
3. Whether the claimant is reasonably entitled to the cost of a hydrotherapy pool in the home.
4. Whether a lift is reasonably required in the adapted home.
5. The entitlement to future holiday costs beyond the claimant’s 19th birthday.
6. The appropriate compensation for future transport costs, including vehicle purchase and adaptation.
7. Whether compensation for loss of earnings, therapy costs, and deputy costs should be lump sums or periodical payments.
8. Whether deductions should be made for accommodation and running costs saved by the claimant’s parents living rent-free in the claimant’s home.

Arguments of the Parties

Appellant's Arguments

• The claimant claims general damages reflecting the severe and ongoing pain and suffering, including painful spasms, supported by expert evidence and video footage.
• The family intends and is likely to move to London, where a suitable adapted home with a hydrotherapy pool is reasonably required to provide symptom relief.
• The hydrotherapy pool is essential as no other method provides comparable symptomatic relief from spasms and pain.
• The cost of adaptations, including the pool and lift, should be fully compensated, with no deductions for parental benefits.
• Future holiday costs should be compensated as the claimant derives physical and emotional benefit from family holidays.
• Future transport costs should reflect reasonable replacement costs of a wheelchair-adapted vehicle.

Appellee's Arguments

• The defendant accepts liability but disputes some aspects of quantum, including the level of general damages.
• The defendant contends the family will likely remain in Cumbria rather than move to London, arguing a move to London is an unreasonable failure to mitigate.
• The defendant denies the hydrotherapy pool at home is reasonably required, asserting that access to external pools twice weekly combined with a Jacuzzi bath at home suffices.
• The defendant submits that the cost of a hydrotherapy pool and related adaptations is disproportionate to the benefit obtained.
• The defendant argues that deductions should be made for accommodation and running costs saved by the claimant’s parents living rent-free in the claimant’s home.
• The defendant challenges the reasonableness of certain vehicle replacement costs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Roberts v Johnstone	Calculation of damages for accommodation costs using capital sums with a 2.5% discount rate; principles on deductions for betterment and parental benefits.	Applied to calculate capital sums for future accommodation and adaptations; rejected defendant’s submission that parental benefits reduce damages; principles guided deductions and betterment calculations.
Livingston v Rawyards Coal Co (1880) 5 App Cas 25	Compensatory damages aim to place claimant in the position as if the tort had not occurred.	Fundamental principle underpinning the entire damages assessment.
Heil v Rankin [2001] 2 QB 272	Full compensation principle; uplift in general damages for catastrophic injury.	Guided the court’s award of general damages and the application of an uplift for catastrophic injury.
Simmons v Castle [2012] EWCA Civ 1039	10% uplift in general damages for pain, suffering, and loss of amenity in personal injury cases post-April 2013.	The uplift was applied to the general damages award.
Whiten v St George's Healthcare NHS Trust [2011] EWHC 2066	Consideration of proportionality in future costs; mitigation; reasonableness of claims.	Considered but court rejected broad proportionality principle as applied by defendant; accepted proportionality in context of alternatives.
Cassell v Hammersmith & Fulham Health Authority [1992] PIQR Q168	Costs of therapeutic treatment and requirement of reasonable alternatives.	Referenced in context of hydrotherapy pool necessity and alternatives.
Almond v Leeds Western Health Authority [1990] 1 Med LR 370	Betterment deduction principles in damages for accommodation adaptations.	Applied to agreed betterment deduction in adaptations cost.
George v Pinnock [1973] 1 WLR 118	Claimant entitled to compensation for additional annual accommodation expenses, not capital cost of new premises.	Guided approach to calculation of accommodation-related damages.
Lewis v Royal Shrewsbury Hospital NHS Trust (2007, unreported)	Credit for rent received by parents on previous home as part payment for care; factual exception to general principles.	Reviewed and distinguished; court considered it a fact-specific decision not binding generally.
M (A Child) v Leeds Health Authority [2002] PIQR Q4	Rejected deduction for parents’ savings or benefits from claimant’s damages.	Supported court’s rejection of deductions for parental benefits.
Iqbal v Whipps Cross University Hospital NHS Trust [2006] EWHC 3111	Practical and fairness considerations against deducting rent benefit to parents from claimant’s damages.	Supported court’s approach rejecting deductions for parental incidental benefits.

Court's Reasoning and Analysis

The court began by reaffirming the fundamental tort principle that damages aim to place the claimant in the position she would have been but for the defendant’s negligence. This includes full compensation for pain, suffering, and loss of amenity, with appropriate adjustments for the claimant’s lack of insight and life expectancy.

The court accepted the severity and permanence of the claimant’s condition, supported by extensive medical and factual evidence, including expert reports and video footage demonstrating the claimant’s painful spasms and the symptomatic relief provided by hydrotherapy.

On accommodation, the court found the claimant’s family intends and is likely to move to London rather than remain in their current location. This finding was based on credible evidence of the family’s sincere and practical intentions, the unsustainability of current commuting arrangements, and the need for proximity to suitable schools and care.

Regarding the hydrotherapy pool, the court carefully weighed the evidence and concluded that, while hydrotherapy does not improve the claimant’s underlying condition, it provides significant symptomatic relief from pain and spasms. The court rejected the defendant’s argument that external pools and baths suffice, finding no reasonable alternative offering the same or substantially similar benefit, especially given the unpredictable and frequent nature of the claimant’s symptoms.

The court addressed the proportionality of costs, holding that the high expense of a home hydrotherapy pool is justified by the exceptional circumstances and the relief it provides. It also noted that the pool’s availability at night would benefit both the claimant and her carers.

On the issue of adaptations, the court accepted the agreed reasonable costs for necessary modifications to the London home but rejected the claimant’s claim for a lift. The court reasoned that the claimant’s cognitive impairment means that physical access to the first floor is not reasonably required to provide her with the same or substantially similar benefit as she would have had if uninjured.

In relation to deductions for accommodation and running costs saved by the claimant’s parents living rent-free in the claimant’s home, the court undertook a detailed factual and principled analysis. It found that the parents would likely have lived abroad with employer-provided accommodation, resulting in no significant financial benefit from rent-free living in the claimant’s home during her lifetime. Even if some saving arose, the court held it would not be reasonable to expect the claimant and her parents to bargain to reduce damages accordingly, given the substantial uncompensated sacrifices made by the parents.

The court reviewed relevant authorities and aligned with the approach rejecting deductions for incidental parental benefits in the vast majority of cases, emphasizing the importance of avoiding under-compensation of the claimant.

On future holiday costs, the court found that while the claimant enjoys family holidays and physical benefits such as sunshine, the intangible benefits of independent holidays she would have had if uninjured cannot be meaningfully compensated by holiday costs. It therefore declined to award damages for holiday costs beyond age 19.

Regarding future transport costs, the court accepted the reasonableness of the adapted vehicle purchased and assessed future replacement costs based on a slightly lower purchase price than originally claimed, reflecting expert evidence and market considerations.

Holding and Implications

The court awarded general damages of £295,000 for pain, suffering, and loss of amenity, applying appropriate uplifts and reflecting the claimant’s severe condition and life expectancy.

The court found the family’s move to London likely and reasonable, ordering damages to cover a suitable adapted home purchase there rather than in the original location.

The court held that a hydrotherapy pool in the home is reasonably required to provide symptomatic relief from pain and spasms, with costs of installation, maintenance, and replacement to be agreed or assessed subsequently.

The reasonable cost of purchasing a suitable London home was fixed at £1.6 million, plus £135,000 for betterment from adaptations.

No deduction was made for any benefit or saving to the claimant’s parents from living rent-free in the claimant’s home during her lifetime, the court rejecting such deductions in principle and on the facts.

The court assessed reasonable adaptation costs at £210,000 after betterment, and rejected the claim for a lift and associated first floor adaptations as not reasonably required.

No award was made for future holiday costs beyond the claimant’s 19th birthday, the court finding such costs do not fairly compensate for the claimant’s losses.

The reasonable cost of replacement wheelchair-accessible vehicles was adjusted to reflect a purchase price of £35,000 plus adaptation costs, with agreed deductions for costs the claimant would have incurred in any event.

The decision has direct consequences for the parties’ damages calculation and future payments but does not establish new precedent beyond applying established principles in a complex factual context.