PROVING THINGS 121: FAILING TO PROVE LOSS OF EARNINGS, AND THE APPROPRIATE APPROACH WHERE FUTURE TREATMENT IS UNCERTAIN

Yesterday I looked at  Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB)  and the comments from the judge in relation to the joint statement of experts.  The case also contains interesting observations in relation to proving damages.  These are observations on matters that often arise in claims for damages in clinical negligence and personal injury cases.  In particular a failure to prove a claim for loss of earnings, matters relating to care when a claimant is in hospital and the approach of the court when the chances of future treatment taking place are “evens”.

 

” I acknowledge that if she does require it, she will face a shortfall which will have to be met from other heads of claim. If she does not undertake the programme, she will have a windfall. The potential injustice to each party is equally balanced and the risk of a greater injustice is avoided”

THE CASE

The claimant was injured due to clinical negligence.   The judge was considering various aspects of the claim for damages.

THE JUDGMENT ON DAMAGES

The judge considered the claim for pain, suffering and loss of amenity.  She went on to consider the claimant’s claim for financial losses.

Loss of earnings
    1. The claimant was not working at the time she underwent surgery. She had last been in paid employment in 2004. Prior to that, she had worked in an administrative role in the NHS for around 13 years. She repeatedly made reference to that employment in the course of her evidence and it appears she considered it valuable work. Her case is that she left that work to take up a counselling course. However, her grandmother had a stroke and she gave up the course to help care for her. After her grandmother’s death in 2003, she got a civil service job, which she told me she loved. However, she left after a matter of months due to problems with a colleague and has not since returned to remunerative work. She explained that her mother had suffered heart failure after an operation and she had been caring for her. I note this was around 2008. Her claim is put on the basis that she would have returned to administrative or secretarial work a year after the surgery and that she would have been continuously employed thereafter.
    2. The claimant told Dr Jackson that she had not worked since 2004 because of her nerves and her physical health problems. Mr Counsell pointed to a significant number of entries in her GP records relating to unrelated physical problems. Neither the contemporaneous records nor the claimant’s evidence suggest that a return to work was a particular motivation in her seeking bariatric surgery. From all I have read and heard, it seems that family is very important to the claimant. In her statement she said:
“I imagined that if I had surgery I would lose weight and everything else would fall into place. I imagined I would meet someone and get married and have children.”
    1. I have concluded that this was probably unlikely. I am not persuaded that the claimant was then likely to switch her focus fairly quickly on a return to employment. By then, she would have been away from the employment market for many years. She plainly enjoyed doing things for her family, she told me that she loved cleaning and feeling useful in that way. To some extent, I believe the claimant has subconsciously rewritten the narrative as far as her employment history is concerned. Her claim to have been out of employment because she was doing equivalent work as a carer did not stand up when the chronology was scrutinised.
    2. I certainly consider that there are far too many imponderables to adopt a multiplicand/multiplier approach to past and future loss of earnings. I have considered whether a more broad-brush approach such as in Blamire v South Cumbria Health Authority [1993] 1 P.I.Q.R. Q1 might be justified on the evidence before me. However, Blamire makes it clear that the legal burden of proving the likely pattern of future earnings following injury compared to the uninjured position remains on the claimant throughout. Mr Limb says, “there was no reason to think she should not have gone back to work.” However, it is for the claimant to prove, on a balance of probabilities, that she would have returned to paid work. On the basis of all the evidence before me, I am afraid she has simply not established that. She had been out of remunerative employment for a very long time; she was (and would have remained) psychologically vulnerable and her motivation for the weight loss surgery was the desire to start a family rather than a return to paid employment. In the circumstances, I do not allow her claim for loss of earnings (both past and future).
Disputed aspects of the care claim
    1. The defendant disputes that the claimant is entitled to recover damages on behalf of her relatives for time spent visiting her in hospital and monitoring her home. I am asked to decide as a matter of principle whether such matters properly fall within her claim for gratuitous care and services. I am not asked to calculate the sums that would be recoverable if so.
    2. As a result of substantial agreement reached between the parties during the course of the trial, I did not hear evidence from the care experts. However, I have considered their written reports and the joint statement. I am not required to descend into the detail.
    3. I was addressed fairly briefly on this aspect of the case. Mr Counsell referred to Huntley v Simmonds [2009] EWHC 405 (QB) in which a claim for the time spent by relatives visiting the claimant in hospital was disallowed. In that case reference was made to Havenhand v Jeffrey [1997] EWCA Civ 1076 (unreported) which was approved in Evans v Pontypridd Roofing [2001] EWCA Civ 1657. In Havenhand, Beldam LJ accepted that no allowance could be made for:
“normal hospital visits arising from family affection and not [made] for the purpose of providing services which the hospital did not provide.”
    1. The observations in Havenhand were also considered by Langstaff J in Warrilow v Norfolk and Norwich Hospitals NHS Trust [2006] EWHC 801 (QB). I respectfully agree with and endorse his approach (at paragraphs 157 to 160). Langstaff J rejected the notion that a principle that “companionship cannot amount to care” could be deduced from the case of Havenhand. He went on to say [159]:
“So far as Havenhand is concerned, the issue is whether the visit by relatives is an aid to the claimant’s recovery, rather than facilitating ordinary social contact which would have occurred in any event. In the case of an old lady, as was the claimant in Havenhand, one can envisage relatives going to see her anyway. They would be doing no more by going to hospital than they might be doing anyway by going to her home. The fact that, in the brief reasoning which the judgment provides, some of the hospital visit was regarded as suitably remunerated, does not suggest that as a matter of principle it was being determined that companionship is not recoverable, if it would not otherwise be provided, if it is reasonably necessary for psychological or psychiatric stability, and if it is provided by a relative who would not otherwise have done any similar act. Where a person is, for instance, in danger of harming herself, or in danger of slipping into a deeper and chronic depression, the fact of companionship may be importantly therapeutic, and an essential part of care. Care is not only physical labour : time has its cost, and if time is devoted which would not otherwise be, and which meets the reasonable needs of an injured party, it deserves recompense. “
    1. Here, I note that both care experts considered that the family had provided emotional and practical assistance during their daily visits. Ms Harris (the defendant’s expert) noted that the claimant’s parents had liaised with medical and nursing staff and brought food in for her. I note that the claimant did not always receive optimum nursing care in hospital, as evidenced by her pressure sores. Her sister provides evidence that after the claimant’s move from ITU a nurse had said “she is not in ITU with one to one care now, tell her to stop demanding attention”. The claimant was an emotionally vulnerable person, with a history of reacting badly to difficult life events. It seems to me that she did have a real need for care and support from her family which went beyond normal visits arising from family affection.
    2. I do accept that the claimant was accustomed to spending a lot of time with her family. No doubt, some of the time spent in hospital would have been normal family chat, particularly as the claimant improved. However, her parents were put to the very real inconvenience of travelling to visit the claimant. The claimant said in her statement that this was very stressful for them. Before her surgery, generally the claimant would go to visit her parents.
    3. It seems to me that a fair assessment of the care provided to the claimant in the form of emotional and practical support while she was in hospital would be represented by an average of 14 hours per week, to include travel time. That reflects the fact that, some of the time spent together in hospital would amount to normal family interaction. No doubt this varied from day to day. However, I believe 14 hours per week represents a reasonable allowance, looking at the family circumstances before her surgery and the assessment of the care experts as to the support being provided afterwards. I accept Ms Harris’s suggestion that this claim should be allowed from 1 March 2012 to take account of care that would have been provided anyway. In so far as that start date may be a little generous to the defendant, I believe that the outcome is fair when viewed in the round.
    4. In addition, I accept that the claimant is entitled to claim an additional one hour per week for the service provided to her in monitoring her home. As I understand it, this includes checking that her home was secure and that no problems had arisen, and collecting post. I consider it perfectly reasonable that a householder would wish regular checks to be made on their home while they were away from it. I cannot see any particular distinction in principle between that and services such as cleaning a home, dog-walking, gardening and such like that are routinely allowed. The care experts joint statement suggests that there may have been a factual issue as to whether the claimant’s home was unoccupied or whether her sister was living there in any event. However, I was not addressed on any factual issue. Assuming, as a matter of fact, that the house would otherwise have been unoccupied while the claimant was recovering in hospital or at her parents’ address, I see no objection to her recovering an hour per week for the monitoring of her home.
    5. The claimant also seeks to recover damages for the loss of the services she provided to her parents and her niece prior to her surgery. The defendant contends that the claimant’s situation is far removed from that in Lowe v Guise [2002] 2 Q.B. 1369, where the claimant had accepted an obligation to provide care for his disabled brother with whom he lived. In that case, the care went beyond the help provided out of normal family ties and affection. The claimant had lost something of real value in losing the ability to meet his brother’s clear need for care.
    6. On the basis of the evidence I heard, I do not accept that the claimant is entitled to recover damages in respect of services provided to her parents and niece. I take into account that she enjoyed doing things with and for her niece and helping her parents. Her inability to do those things after her surgery represents a real loss of amenity for her, which I have taken into account in assessing general damages. However, I do not accept that the help the claimant was providing before the surgery crossed into the territory of recoverable loss envisaged in Lowe v Guise. Without belittling what the claimant did at the time of her surgery, I do not believe this represents a real identified need for services rather than the normal give and take of family life. I would therefore disallow this aspect of the claim.
    7. The final issue concerning the future care claim is the assessment of the multiplier. The parties agree that the whole life multiplier is 36.43. The claimant contends that is the appropriate multiplier for the future care claim. The defendant suggests I should allow a multiplier of only 24.2. That figure would be the appropriate multiplier to age 70. The defendant puts this forward on the basis of arguing that the claimant’s need for care would have increased as she got older in any event. It is not contended that any needs attributable to the defendant’s negligence will cut off suddenly and completely at age 70. Rather, it is said that this represents a pragmatic solution that takes a number of factors into account. Those factors include the normal impact of ageing; the claimant’s pre-existing psychological problems (which Dr Jackson suggested were likely to worsen over time); the likelihood of her suffering fibromyalgia in any event (albeit less severely) and the prospect that there may well be some improvement in physical function with the benefit of the recommended equipment and treatment. Mr Counsell submitted that everything could be taken into the round by selecting the multiplier he contended for.
    8. I do not accept the contention, based on Dr Jackson’s evidence, that the claimant’s needs due to her psychological condition would have worsened over time. With the exception of that point, I do consider that the defendant has identified factors which should properly be taken into account in assessing the appropriate multiplier.
    9. The advent of the Ogden Tables brought a far more mathematical approach to the calculation of future losses. There is, in my view, a risk sometimes of falling into the trap of believing that the selection of multipliers must be a precise scientific exercise. That cannot always be so. Sometimes, a more pragmatic approach is called for to do justice between the parties. In my judgment, the factors identified by the defendant can, and should, be reflected by some adjustment to the multiplier for future care.
    10. The correct starting point, in my view, is the full Ogden life multiplier. I consider that the reduction contended for by the defendant by reference to the multiplier to age 70 is too great. That is particularly so in the context of a negative discount rate. It would effectively discount the future care claim by one-third. That, in my judgment, is too great a discount on the facts of the case.
    11. I conclude that an appropriate multiplier for future care, taking all the above into account is 30. That does not represent a particular cut-off age, nor does it involve a precisely calculated discount. It is a round number, falling roughly between the parties’ respective positions, which seems to me to best do justice. It allows for the pre-existing problems; the likelihood of fibromyalgia developing; the impact of ageing and the prospect of there being some improvement in function with the purchase of equipment and further therapy.
    12. I note that I have not been told the extent of the agreement between the parties as to the multiplicand(s) to be adopted in relation to future care. I hope that it will be possible for them to agree the basis upon which the multiplier is to be applied in any calculations. The matters to which I have had regard in selecting the multiplier are those which Mr Counsell invited me to take into account. I have not looked at other issues which might impact upon the multiplicand.
Bathroom adaptations
    1. This claim is a relatively modest one, which I shall deal with fairly briefly. In her schedule of loss, the claimant claimed £5,200 in respect of “bathroom adaptations and non-slip flooring in the bathroom and kitchen”. This was not supported by evidence until an invoice dated March 2015 was produced during trial, after the claimant had given evidence. There is no evidence to explain how the work done was required by reason of the defendant’s negligence. The defendant’s counter-schedule dated December 2017 put the claimant on notice that she was required to produce documentary evidence in support of this claim and to explain what works had been done.
    2. The claimant therefore had the opportunity to properly vouch her claim for bathroom adaptations. I am not satisfied that the invoice she has belatedly produced without any further explanation establishes that the works were properly attributable to the defendant’s negligence. Accordingly, I disallow this head.
Psychological therapy
  1. The final head that was identified for my consideration is the claim for psychological therapy.
  2. The claimant seeks £7,800 for the cost of the ‘buddy’ programme recommended in the pain experts’ joint statement and £36,000 for the pain management programme that would follow if the outcome of the initial treatment is sufficiently good to allow her to engage in group-work.
  3. Mr Counsell complains that the claimant has not provided updated records since 2016. The defendant had been unaware until she was in the witness box that she was undergoing EMDR treatment. It had not been possible to explore that properly to see whether it would throw light on how the claimant might respond to further psychological treatment. Further, the pain consultants joint statement came very late leaving little time to clarify the position about future treatment. Overall, he said that it was too early to say whether the claimant was likely to undergo the recommended treatment.
  4. Mr Counsell properly acknowledged that the need for the buddy programme might have been made out on the evidence presented at trial. The psychiatrists had welcomed the news of the EMDR but did not suggest that would replace the need for the treatment recommended by the pain experts. Although Dr Beary was cross-examined about the benefits of the claimant getting out of her home to access treatment, I did not think anything I heard from the psychiatrists detracted from the sensible recommendation for a tailored one-to-one programme such as recommended in the pain consultants’ joint statement. I allow the cost of that programme in the sum of £7,800.
  5. The position is less straightforward in relation to the cost of the pain management programme. The experts’ evidence suggests that the question of whether the claimant will move on to the pain management programme is finely balanced. It might be said therefore that the claimant has not proved, on the balance of probabilities, that she will incur those costs. However, Mr Counsell acknowledged (sensibly and properly, in my view) that I might allow a percentage of the cost on the basis of the chance that it may be incurred.
  6. I believe this is a reasonable approach to this head of loss. Usually, a future expense will be allowed in full if it will probably be incurred and not at all if it will probably not. However, my experience is that it is not uncommon for uncertainty as to whether future treatment will take place to be met by an allowance of less than the full cost. The aim is to do justice between the parties. The evidence suggests that the chance of the claimant undergoing the programme or not is about evens. In the circumstances, it seems to me that the fairest solution is to allow for half the cost of the programme. I acknowledge that if she does require it, she will face a shortfall which will have to be met from other heads of claim. If she does not undertake the programme, she will have a windfall. The potential injustice to each party is equally balanced and the risk of a greater injustice is avoided. I will therefore allow the sum of £18,000 in respect of the pain management programme.