Quantum Trial in Cerebral Palsy Case
John Whitting KC and Thomas Hayes
CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB)
Background
The Claimant was a young girl who developed cerebral palsy with severe spastic quadriplegia, profound learning disabilities, visual impairment and epilepsy following severe chronic partial hypoxic ischaemia at birth. The Defendant hospital trust admitted liability and the case proceeded on a quantum only basis.
At trial, the Claimant sought a lump sum of £9,214,862 (gross of interim payments) and a periodical payments order (‘PPO’) of £394,940 per annum in respect of care and case management. The Defendant contended that the Claimant should be paid a lump sum of £3,301,938 (again, gross of interim payments) and PPOs of £167,279 p.a. to age 19 and £324,254 p.a. thereafter. Interim payments had been made in the sum of £2,750,000.
While on the face of the pleadings, there was roughly £6,000,000 difference between the parties’ valuations of the residual lump sum, by the time of trial a number of heads of claim (and the issue of life expectancy) had been agreed.
Among the issues which remained in dispute was, predictably, the cost of constructing, running and maintaining a home hydrotherapy suite. This therapy was felt by the Claimant’s mother to be of significant benefit to the Claimant’s sleep, digestion and physical abilities. Daily access to a hydrotherapy pool was also supported by the Claimant’s multi-disciplinary team in her statutory Education, Health and Care Plan and by her physiotherapists. Access at school or in the community was heard to be intermittent during term time and often unavailable outside the school term. The paediatric neurologists instructed in the case agreed that it “may benefit muscle pain and spasm” but that there was no reasonable published evidence of long-term clinical benefits from hydrotherapy compared to land based physiotherapy.
Equally predictably, the Claimant sought, and the Defendant rejected as being irrecoverable in law, an award for lost years. Unusually, the claim for past commercial care was also in dispute, presumably because it amounted to over £1.3m, with the Claimant’s case being that during the COVID pandemic, difficulties in sourcing care had caused the Claimant’s mother to obtain private carers at five to six times the pre-COVID market rate.
As to the periodical payments, the key dividing line was whether a second waking night carer was required. The Claimant’s case was that the sleeping night carer (in addition to a waking night carer) was being woken too frequently to be paid on that basis, and so a second waking night carer was needed. The Defendant’s position was that the Claimant’s mother could perform that care, or failing that, that a sleeping night carer was sufficient.
Judgment
After hearing eight days of evidence, Mr Justice Ritchie awarded the Claimant £6,866,615 by way of lump sum and periodical payments of £394,940 per annum. That represented slightly more than the midpoint between the parties’ respective valuations of the residual lump sum, but every penny of the amount sought by the Claimant by way of annual periodical payment. The lump sum award fell between the parties’ respective Part 36 offers.
The claim for lost years was dismissed in full although it should be noted that the Court subsequently gave permission for a leapfrog appeal to the Supreme Court on that issue. The Court was sympathetic to the realities of recruitment during the Covid crisis and, crucially, it allowed the hydrotherapy claim more or less in full.
A prominent feature of the judgment was Mr Justice Ritchie’s often trenchant criticism of the Defendant’s experts, all of whom were, and remain, very well-known and highly experienced in this field of work.
The learned judge subjected the evidence of the Defendant’s paediatric neurologist to a withering critique in two very lengthy paragraphs of his judgment finding, among many other things that it was in part “deeply unimpressive”, accusing him of “being intentionally selective” and at least implying that he was guilty of unconscious bias. He found that the Claimant’s expert was “a helpful, balanced and persuasive witness. He was consistent in his approach and thoughtful under cross-examination [but the Defendant’s expert] on the other hand, was not. He did not put a proper part 35 statement on his reports, he extracted one medical record adverse to the Claimant’s case on disturbed sleep and elevated it out of all proportion in the joint report and he displayed no desire to understand the difference between the burden of proof in Court on the balance of probabilities and the medical requirement in the publication of research for the conclusions therein to be to a scientific standard.”
Things did not improve for the Defendant when it came to their care and occupational therapy expert. The Court was critical of his lack of any experience in the managing of carers or the provision of complex care packages for maximum need cases. He was criticised for a lengthy delay in remedying the contents of his report, for the fact that had not seen the Claimant for three years before trial, that he was unable to defend certain aspects of his report and acknowledged that he had not treated any child with cerebral palsy cases in his NHS practice. The Court was also unimpressed by his having recommended a vehicle which was no longer in production. In respect of his evidence in relation to occupational therapy, he accepted that on occasions he had simply put forward the cheapest option, rather than considering the Claimant’s real needs. Ultimately, his evidence in respect of care was described as “flimsy and unimpressive”.
The theme continued in respect of the parties’ physiotherapy experts. The judge was impressed by the experience of the Claimant’s expert and criticised the Defendant’s for being out of date, and on the question of hydrotherapy, unwilling to accept that it had any benefits beyond just being enjoyable. The Claimant’s accommodation expert was also largely preferred, the Defendant’s expert making a “number of concessions”, which he was “driven to… by his own lack of detail and superficiality”.
Comment
Whether or not the brutal treatment meted out to the Defendant’s experts was justified, this judgment serves as a salutary and timely reminder of the need to test one’s evidence, and in particular to challenge one’s experts, just as comprehensively and rigorously before a quantum hearing as one would before going to trial on liability. Because quantum hearings, particularly at this level, are so rare, there will always be a risk of complacency in the selection of experts and the preparation of their evidence for trial. After all, if there is no real prospect of them ever being subjected to the challenge of cross examination, or of their evidence being minutely combed for error or inconsistency to the degree that only, frankly, happens at trial, then why do more than ask for their opinion and then reflect it, without demur, in a schedule or counter schedule. This forensic disaster should answer that rhetorical question for another generation of lawyers.
A good axiom for any expert is never to say anything in writing that one would not be comfortable repeating to the Judge in open Court. It is far too easy to make glib, off hand, dismissive, remarks in a report; having them repeated back to you in the witness box will be less easy. Don’t make sweeping generalisations based on half read abstracts found on a cursory internet search. Base every conclusion you reach and every recommendation you make on a combination of your own professional experience and your own detailed, focussed, evidenced research. Assume that everything you say will be challenged and that you will have to justify it to a sceptical audience. Be open and honest about the extent and scope and timing of your experience in the field in which you are offering an opinion. Are you currently providing care or therapy to those with this type of disability? If not, how do you know what will be required and what it will cost?
That is the challenge which every expert should set themselves when offering an opinion. Even more critical is that we, as lawyers, ensure that our experts meet it fully before we rely upon their evidence to plead our case on quantum and, even more so, before we put them in the witness box. This judgment was our wake up call.
