Clark v Greater Glasgow Health Board

Factual and Procedural Background

This case concerns a claim by the Plaintiff for catastrophic brain injury sustained at birth on 2 March 1992. The claim is against Company A (a health board) for alleged negligence by midwifery and medical staff employed on 1 and 2 March 1992. After extensive proof and submissions over 21 days in early 2015, the court reserved judgment. During this period, the Plaintiff sought to amend the claim to add a new case, which was refused. On 12 February 2016, the court pronounced decree of absolvitor (dismissal) in the substantive proceedings but undertook to produce a note on the damages that would have been awarded had the Plaintiff been successful. The parties agreed most items of damages, with a few outstanding issues to be determined.

Legal Issues Presented

1. Whether provision for a personal injuries trust should be made;
2. Whether an agency model or a direct-employment model should be used for costing future care and the appropriate allowance for care costs;
3. The appropriate amount to allow for case management;
4. The appropriate allowance for occupational therapy;
5. Whether future transport costs should account for the possibility that the Plaintiff would have owned a car regardless of injury;
6. Whether certain personal care equipment items should be allowed;
7. Appropriate allowance, if any, for postural support items;
8. Appropriate allowance, if any, for additional domestic assistance;
9. Appropriate allowance, if any, for disability sports;
10. Whether full interest should be allowed on past losses and expenses.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff relies on case law establishing that the wrongdoer must pay for the claimant’s proposed care regime unless it is unreasonable, without the court imposing a minimum care standard.
• The Plaintiff advocates for an agency care model, using hourly rates charged by a respected care provider, which includes all employment costs and corporate profit.
• The Plaintiff submits that a personal injuries trust should be established to manage the damages, protecting eligibility for state benefits and offering tax advantages.
• The Plaintiff claims higher damages for future care costs, case management, and certain personal care equipment, including the Easydry System.
• The Plaintiff argues for a higher payment rate for sleeping night carers, citing minimum wage legislation and relevant case law.
• The Plaintiff maintains that additional domestic assistance is required beyond usual care tasks.
• On transport costs, the Plaintiff disputes the assumption that she would have owned a car if uninjured, arguing that public transport use would have been more likely.
• The Plaintiff seeks allowance for disability sports activities, asserting that these are more expensive than able-bodied leisure activities.

Defendant's Arguments

• The Defendant contends that damages should be assessed on a direct-employment care model, which is less costly and allows greater choice, control, and flexibility.
• The Defendant argues that only about half of the interest claimed on past losses should be allowed.
• The Defendant disputes some claimed personal care equipment, allowing only the Easydry System.
• The Defendant assumes the Plaintiff would have owned a car regardless of injury and disputes additional transport costs beyond insurance and wheelchair accessible vehicle modifications.
• The Defendant submits that occupational therapy costs are adequately covered within case management and that no separate allowance is necessary.
• The Defendant challenges the need for additional domestic assistance beyond support workers’ tasks.
• The Defendant accepts some provision for disability sports but objects to full allowance on the basis that leisure expenses would have been incurred anyway.
• The Defendant’s care cost expert supports payment of sleeping night carers based on six hours’ pay for a ten-hour shift, consistent with national minimum wage regulations.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed comparison of the agency and direct-employment care models, including expert evidence from occupational therapists and care-cost experts for both parties. It found that the Plaintiff’s preference for an agency model, while principled, was unnecessarily expensive given the stable nature of the Plaintiff’s condition and the availability of a suitable direct-employment model. The court accepted that the direct-employment model, though less costly, requires significant family involvement, which the evidence suggested would occur. The court therefore rejected the notion that the family would cease involvement and found the agency model’s cost excessive without supporting evidence of its necessity.

Regarding sleeping night carers, the court reasoned that time spent sleeping, but available to respond to calls, does not constitute “time work” under the National Minimum Wage Regulations, justifying payment for six hours in a ten-hour shift. It allowed for a slight adjustment in pay rates to reflect current living wage levels but did not extend beyond the evidence without counsel’s input.

The court accepted the establishment of a personal injuries trust to protect the Plaintiff’s interests due to her inability to manage funds, vulnerability, and to optimize benefits and tax treatment.

On transport costs, the court found no conclusive evidence that the Plaintiff would have owned a car if uninjured but considered it reasonable to allow half the annual costs of a wheelchair accessible vehicle plus insurance, reflecting an even chance of car ownership or alternative public transport costs.

The court rejected claims for certain personal care equipment and postural support items where evidence was lacking or items were already provided, but allowed for the Easydry System and a new specialized bed and mattress with annual replacement costs.

On domestic assistance, the court found no need to allow for “heavy cleaning tasks” beyond usual care, accepting the Defendant’s expert’s evidence that support workers perform all domestic tasks the Plaintiff cannot do herself, and that window cleaning was not compensable.

The court allowed a reduced sum for disability sports, reflecting the difference in cost between disabled and able-bodied leisure activities.

Holding and Implications

The court’s final decision was to produce a damages assessment based on a weighted average of the agency and direct-employment care models, applying multipliers to calculate the lifetime costs of care and case management, resulting in a total provision of approximately £4,770,757 for future care and case management.

The court refused the Plaintiff’s motion to amend and pronounced decree of absolvitor on the substantive claim. However, it provided a detailed damages note as if the Plaintiff had succeeded, resolving outstanding issues on quantum.

The decision directly affects the parties by setting out a reasoned approach to care cost assessment in catastrophic injury claims, balancing cost, suitability, and family involvement without establishing new precedent beyond the facts of this case.