Clinical negligence — a High Court decision on quantum

Few clinical negligence claims go to trial on quantum and this case is therefore interesting to see how the judge approached a number of issues including accommodation, life expectancy and loss of earnings.

Background

In the case of Riley v Salford Royal NHS Foundation Trust [2022] the claimant, aged 27 years, made a claim for clinical negligence. The claimant was involved in a road traffic accident on 28 July 2015 when he lost control of his motorcycle. He was admitted to Salford Royal Hospital where it was found he had suffered fractures to his right femur, tibia and fibula, as well as compartment syndrome in his lower right leg.

The claimant alleged that the hospital trust delayed treating his condition and as a result, he underwent a below the knee amputation of his right lower leg on 21 August 2015.

Breach of duty was admitted by the hospital for the treatment he received, and it was accepted that if appropriate treatment had been provided the amputation would have been avoided.

The court's decision

In a detailed judgment, Deputy High Court Judge Mr. David Allan KC awarded damages of £4,676,442 to the claimant. It has been observed that this appears to be a generous award on the basis of the information available. The judge favoured the claimant's arguments on almost every point.

The decision raised a number of key issues:

“A failure to demand rent or a capital contribution is not an unreasonable failure to mitigate the loss.”

Both parties in this case agreed that as a result of the amputation, the claimant required suitable ground floor accommodation and it was reasonable to purchase a bungalow. The claimant’s home where he resided with his partner was said to be unsuitable and he claimed the costs of a bungalow he had to purchase in the sum of £527,700. During final submissions, the defendant argued that as he had not claimed from his partner a contribution of £120,000 towards the costs of the bungalow, the claimant had failed to mitigate his loss.

The Judge did not accept the arguments as a) the defendant had not raised the point to the claimant previously which they should have done if they wished to pursue it, and b) they had not cited any authority to show a court had accepted that it would amount to a failure to mitigate loss where an injured claimant, who requires adapted accommodation, has failed to seek a contribution from a partner or parents.

“There is no satisfactory evidence to suggest the claimant should be treated as someone with a reduced life expectancy.”

The judge was also required to determine whether the claimant had a reduced life expectancy following the amputation. The defendant suggested that life expectancy had been reduced by three years according to their expert evidence. However, the defendant’s expert provided a ‘guesstimate.’ The expert had not weighed up the positive and negative factors, had not provided any reliable studies to support the submission, and he stressed he was not an expert on life expectancy. The judge therefore concluded that there was no epidemiological evidence of a reduction in life expectancy following a below-knee amputation, and the claimant should be treated as having an average life expectancy for a male of his age.

“Merely because there are uncertainties about the future this does not of itself justify a departure from the well-established multiplicand/multiplier method”

The claimant had been employed in various jobs and he had planned to embark on a degree at university in Sports Science with a view to becoming a PE teacher. He was unable to do so following his injuries and he had been required to consider alternative careers. The judge concluded that it was likely he would have opted for a degree in IT in which he had long had an interest, and he was likely to have eventually found full time employment in the IT sector on completion.

When calculating his future loss of earnings, there was a dispute between the parties as to the best approach. The claimant argued a multiplier multiplicand approach would be suitable whereas due to the uncertainties, the defendant preferred a Smith v Manchester or Blamire approach to allow for a lump sum up to the age of 60.

The judge relied on case law and commentary within the Ogden tables which emphasised that when calculating an award for future loss of earnings, lawyers should not depart from the established multiplicand - multiplier method even where there are uncertainties about the future, unless the judge has no alternative. Despite the uncertainties surrounding the claimant’s future employment prospects in this case, the judge concluded that it was possible to assume the multiplicand multiplier method.

New technology

The judge did reject some aspects of the claim, including that there should be a lump sum award to allow for the introduction of new technology and increase in price. The claimant argued that when new prosthetic innovations are introduced, the increase in price far exceeds inflation. The judge accepted that when new products come on the market there is a premium price for a period but noted that then often the price will reduce. He regarded it as a matter of speculation whether the claimant would be faced with more expensive prosthetic equipment in the future and held that there was not a sufficient evidential basis on which to make an award.

Conclusion

This case looks at a number of interesting and important points for litigators when approaching the assessment of damages. In particular, arguments that parties wish to rely on should be communicated and pleaded from the outset and not assumed or developed as the case proceeds. The case also highlights the critical role of the experts. It is crucial to rely on suitable and credible experts, particularly where specific technical points such as life expectancy are raised, as the court is unlikely to be persuaded to rely on such evidence otherwise. Here, the fact that the defendant’s orthopaedic evidence was not accepted impugned the evidence of the care expert which had been based on the orthopaedic expert’s opinion. The choice of one unsuitable expert can compromise the evidence of others.