JR v Sheffield Teaching Hospitals NHS Foundation Trust

Factual and Procedural Background

The Plaintiff, now aged 24, was born prematurely by vaginal breech delivery at a hospital in The City. Due to the traumatic nature of the delivery, he suffered intracranial haemorrhage and brain injury resulting in moderately severe spastic cerebral palsy and significant cognitive impairment. Liability is admitted by the Defendant, responsible for the hospital, for negligence in attempting vaginal delivery rather than the appropriate caesarean section. Parts of the damages claim have been agreed, while others remain in dispute. The Plaintiff is a protected party due to cognitive deficits, and an anonymity order has been made to prevent identification. The court has anonymised the judgment accordingly.

The Plaintiff suffers severe motor impairments, including spasticity affecting speech, swallowing, and all four limbs, with no effective lower limb movement and limited upper limb function. He is wholly dependent on others for daily living activities but can feed himself with prepared food and requires regular night assistance. His cognitive impairment affects understanding, attention, and executive functioning, placing his intellectual functioning in the borderline range.

He has undergone several surgical interventions and requires ongoing multidisciplinary medical supervision, including management of an intrathecal Baclofen pump. His upper limb function is likely to deteriorate with age, though this will not significantly increase care needs. His life expectancy is reduced to approximately age 70.

Despite his disabilities, the Plaintiff leads an active life, engaging in powered wheelchair football and pursuing interests such as IT and photography. He has undertaken further education but was unable to complete a course due to lack of funding for support workers.

The case involves approval of agreed damages and determination of disputed future losses including loss of earnings and pension, costs of care, aids and equipment, physiotherapy, accommodation, assistive technology, travel and transport, and Court of Protection costs.

Legal Issues Presented

1. Whether the Plaintiff can recover damages for loss of earnings and pension during the "lost years" beyond his reduced life expectancy, considering the binding precedent of Croke v Wiseman.
2. The appropriate calculation and assessment of damages for loss of earnings and pension, including determination of the annual figure and multiplier.
3. The application of the Roberts v Johnstone approach to the recovery of accommodation costs in light of the recent change to a negative discount rate.
4. The reasonableness and necessity of various future care costs, aids, equipment, physiotherapy, assistive technology, travel and transport, and Court of Protection costs.
5. Approval of agreed sums for general damages, past losses, and certain future losses.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contends that he is entitled to recover loss of earnings and pension for life, including for the "lost years" beyond his reduced life expectancy, relying on the principles from Pickett v British Rail Engineering and Gammell v Wilson, and distinguishing his position from the child in Croke v Wiseman.
• He argues that his adulthood and social prospects remove the rationale for denying a "lost years" claim based on absence of dependants.
• The Plaintiff submits that the Roberts v Johnstone accommodation cost formula remains binding and that a fair solution should be found to address the issues arising from the negative discount rate.
• He requests recognition of the necessity and reasonableness of various care, therapy, equipment, and travel costs as supported by expert evidence.
• The Plaintiff seeks approval of agreed sums for general damages, past losses, and certain future losses as being in his best interests.

Defendant's Arguments

• The Defendant relies on the binding precedent of Croke v Wiseman to argue that no claim for "lost years" is permissible for the Plaintiff, who, though an adult, suffers catastrophic injury and will have no dependants.
• They contend that the negative discount rate undermines the rationale for awarding accommodation costs under the Roberts v Johnstone approach, effectively resulting in a nil award for accommodation.
• The Defendant challenges certain claims for aids and equipment, such as a second powered wheelchair and standing wheelchair, as disproportionate or unsupported by expert evidence.
• They argue for a reduced level of physiotherapy and care costs in some respects, including the use of a sleeping carer at night, and contest some ancillary costs such as massage therapy and assistive technology customisation.
• The Defendant proposes a more modest assessment of travel and holiday costs and emphasizes the need for reasonableness and proportionality in all claims.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the admitted negligence of the Defendant causing severe injury to the Plaintiff at birth and the resulting lifelong impairments. The primary legal issues concerned the calculation of damages for future losses, including the controversial "lost years" claim and accommodation costs under the Roberts v Johnstone formula in light of the changed discount rate.

On the "lost years" issue, the court analysed the binding precedent of Croke v Wiseman, which bars recovery for lost earnings beyond life expectancy in cases of catastrophic injury to children without dependants. The Plaintiff, now an adult with severe but not catastrophic injuries and social prospects, argued that Pickett and Gammell principles applied, allowing recovery without requiring dependants. The court found that although Croke is inconsistent with those House of Lords decisions, it remains binding on the Court of Appeal and thus on this court. However, the Plaintiff’s adult status and social potential distinguish his case from the child in Croke, justifying a "lost years" claim under Pickett and Gammell. The court concluded that the Plaintiff is entitled to recover for lost earnings and pension for the "lost years" with an appropriate deduction for living expenses.

Regarding accommodation costs, the court reviewed the established Roberts v Johnstone approach, which compensates the claimant for the notional loss of investment income on capital spent acquiring suitable accommodation, typically at a 2-2.5% risk-free rate. The recent negative personal injury discount rate set by the Lord Chancellor means no positive return on risk-free investments is currently achievable, which, if applied, results in a nil award for accommodation costs. The court recognized this as an unsatisfactory but binding consequence under current law and evidence. It noted calls for reform and the Law Commission’s awareness but found no evidential basis to depart from the conventional approach or to adopt alternatives such as mortgage interest calculations or reversionary interests in this case.

On disputed care costs, the court preferred the evidence of the experienced care manager supporting two waking night carers due to the Plaintiff’s frequent need for assistance, rejecting the Defendant’s suggestion that one sleeping carer would suffice. The court also accepted the higher estimate for case management hours based on practical experience.

For aids and equipment, the court rejected the claim for a second powered wheelchair and a standing wheelchair as unreasonable on expert evidence. It allowed a single powered wheelchair capable of all-terrain use with a riser facility and accepted contingent sums for possible future seating needs.

Physiotherapy was assessed in two phases: up to age 40, requiring more intensive land and water-based therapy, and thereafter, with no clear evidence supporting increased therapy. The court accepted the modest inclusion of water-based therapy and rejected massage therapy as a recoverable ongoing cost, allowing only a lump sum for training carers in massage techniques. The Lycra suit was allowed on a contingent basis.

Accommodation adaptations were assessed on the basis of a suitable bungalow in the Sheffield area, with expert disagreement resolved in favour of the more detailed tender analysis. Adaptation costs were adjusted to exclude carers’ bedrooms (due to care regime findings) but to include an enclosed garage. Running costs were reduced by 25% to account for shared occupancy, rejecting the Defendant’s larger reduction proposal.

The court declined to award the cost of a home hydrotherapy pool, considering regular visits to local pools a reasonable alternative.

Assistive technology claims were largely agreed, with disputes on frequency of replacement and some items disallowed, including customisation costs and multi-room AV systems unrelated to injury.

Travel and transport costs were adjusted to reflect reasonable deductions for vehicles and insurance, with a midpoint accepted for extra mileage. Holiday costs were allowed with a 20-year replacement cycle for a caravan and a lump sum contingency for occasional long haul holidays.

Court of Protection costs were assessed based on expert evidence, with the court preferring the more detailed and experience-based breakdown provided by the Plaintiff’s expert and recognizing the intensive early years of deputyship with reduced later involvement.

Finally, the court approved agreed sums for general damages, past losses, and certain future losses as reasonable and in the Plaintiff’s best interests.

Holding and Implications

The court made the following key rulings:

• The Plaintiff is entitled to recover damages for loss of earnings and pension for the "lost years" beyond his reduced life expectancy, applying the principles of Pickett and Gammell rather than being barred by Croke v Wiseman, due to his adult status and social prospects.
• The Roberts v Johnstone approach to accommodation costs remains binding, but the current negative discount rate leads to a nil award for the capital cost of special accommodation in this case.
• The Plaintiff shall recover the cost of adaptations to suitable accommodation, assessed at approximately £400,000 before betterment, and reasonable increased running costs.
• The Plaintiff is entitled to two waking carers at night, full case management costs based on experienced evidence, and reasonable physiotherapy including modest water-based therapy.
• Claims for certain aids and equipment are allowed or disallowed based on reasonableness and expert evidence, with contingent sums for future needs.
• Assistive technology, travel, transport, holidays, and Court of Protection costs are awarded on the basis of detailed expert evidence and reasoned adjustments.
• Agreed sums for general damages, past losses, and certain future losses are approved as reasonable and in the Plaintiff’s best interests.

The direct effect of this decision is to provide the Plaintiff with a comprehensive award of damages reflecting his severe injuries and future needs, including recognition of a "lost years" claim despite binding precedent to the contrary in child cases. The ruling on accommodation costs highlights a current legal and practical conundrum arising from the negative discount rate, emphasizing the need for future reform but adhering strictly to binding authority. No new precedent is established, but the judgment clarifies the application of existing principles to adult claimants with severe disabilities and the impact of recent economic changes on damages calculations.