Richard Baker KC and Sarah Edwards secure substantial award of damages in catastrophic brain injury trial, and win permission to leapfrog to the Supreme Court

Richard Baker KC and Sarah Edwards represented the Claimant at the trial of quantum in CCC v. Sheffield Teaching Hospitals NHS Foundation Trust heard before Mr Justice Ritchie over the course of 10 days in June 2023.

The Claimant, an eight-year-old girl, sustained catastrophic brain injuries at the time of her birth due to the Defendant’s admitted negligence in the management of her birth. It was the first trial of quantum in a case of this type since JR v. Sheffield Teaching Hospitals NHS Trust in 2017, in which Richard Baker KC also appeared for the Claimant.

The Claimant recovered a substantial award of damages, succeeding on various key issues in the case, including the below.

• The Claimant successfully argued that no deductions should be made from past gratuitous care, which reflected the complexities and challenges faced by her family, and in particular her mother, in providing her with care before a commercial care regime could be put in place. Ritchie J paid tribute to the: “struggle for life by this young girl alongside the hugely impressive determination and devotion of [her mother] throughout all of her daily battles fought by her, on the Claimant’s behalf, to keep her alive, to keep her safe and to make her life as full and enjoyable as is possible within the challenging restrictions caused by her very severe disabilities”.
• The Claimant resisted arguments advanced by the Defendant that increased agency care costs, including the costs of registered nurses, incurred during the COVID-19 pandemic should be disallowed.
• The Court was heavily critical of the quality of the evidence produced by the Defendant in the fields of Paediatric Neurology, Care, Occupational Therapy, Physiotherapy and Accommodation.
• The Claimant recovered the costs associated with installing and operating a home hydrotherapy-pool. In accepting the Claimant’s evidence that a home pool was the only effective way in which the Claimant could receive regular hydrotherapy/activity in water, the Court analysed and rejected the Defendant’s arguments to the effect that there was no scientific basis for proving the efficacy of aquatic therapy/hydrotherapy. The Claimant supported the claim for a home aquatic therapy pool by arguing that this was the only environment in which the Claimant could undertake any form of exercise and that immersion in water brought her pleasure, a degree of freedom, societal participation with her family as well as providing other physical benefits. The Court accepted the Claimant’s careful analysis of the availability and suitability of the local aquatic therapy facilities, concluding that the costs of building and running a home pool, although amounting to over £900,000 in this case, were reasonable and proportionate.
• The Claimant recovered the costs of a 2:1 care regime, which provided for two waking night carers indefinitely, reflecting the severity of the Claimant’s disabilities and her interrupted sleep regime. The Court adopted entirely the evidence of Claimant expert Maggie Sargent and based the future care regime on her recommendations, rejecting the evidence of the Defendant’s expert as unsound.

The case is also notable for the arguments surrounding life-expectancy, which preceded the trial. The Defendant sought to argue, based upon the evidence of their Paediatric Neurologist, that the Claimant’s life-expectancy should be assessed by reference to median survival data, rather than the more conventional life-expectancy calculation adopted by the Claimant’s expert based upon the adjusted Strauss data. The Defendant abandoned their argument shortly before trial, agreeing life-expectancy to age 29. In his judgment, Ritchie J noted that the approach adopted by the Claimant’s expert was ‘correct’ and the approach adopted by Dr Baxter was ‘unusual’.

The Claimant advanced a claim for ‘lost-years’ but accepted at trial that the Court was bound by the controversial decision in Croke v. Wiseman. Following the handing down of judgment the Claimant applied for and was granted permission to leapfrog the case to the Supreme Court to challenge Croke v. Wiseman.

Richard Baker KC and Sarah Edwards were instructed by Taylor Emmet Solicitors.

The full judgment is available here: https://www.bailii.org/ew/cases/EWHC/KB/2023/1770.html

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