LOSS OF EARNINGS FOR A CHILD BADLY INJURED AT BIRTH: ANOTHER EXAMPLE FROM THE HIGH COURT

In HS -v-Lancashire Teaching Hospitals NHS Trust [2015] EWHC 1367 (QB)  Mr Justice William Davis considered the claim for loss of earnings in a case where a claimant suffered a catastrophic head injury at birth.

THE CASE

The claimant suffered catastrophic brain injury due to negligence which led to meningitis. Liability was admitted. Certain heads of damage were agreed.  One of the issues in dispute was future loss of earnings. The claimant would never be able to manage her own affairs. There was no possibility of her working.

THE JUDGMENT ON LOSS OF EARNINGS

  1. There is no dispute about the recoverability of loss of earnings. HS will never be capable of any work. Had she been treated properly by the Defendant, she would have would have been able to pursue whatever occupation or career for which her intellectual and other capabilities suited her. What those capabilities would have been is very difficult to say. Albert Reid, a jointly instructed educational psychologist, concluded that HS probably “would have functioned within the average to good average range of intellectual ability and likely she would have undertaken tertiary education, potentially leading to a Degree level course with vocational qualification”. With great respect to the expertise of Mr Reid, that view is not based on any true or considered assessment of HS. Given her condition, that would be impossible.
  2. If HS’s siblings were older, there might be some useful information to be gleaned from their progress. Since they are only 4 and 2, there is not. JS is a qualified nurse. Whilst AS works as a machine operative in the UK, his qualifications in India were to post-graduate level. It follows that there is some assistance to be gained from considering the intellectual capacity of the parents. Moreover, they are first generation immigrants to the UK who came here to further themselves and to give their children a better opportunity to progress. Wholesale generalisation of how the children of such families progress would not be a reasonable basis on which the determine HS’s likely path had she not been catastrophically damaged by the Defendant’s negligence. Equally, the ambition of such families for their children is a relevant consideration.
  3. Those who represent HS have been criticised for late introduction of material seeking to increase the base figure for loss of earnings. Given the difficulty in presenting any concrete basis for calculating this loss, I am satisfied that it was appropriate for Mr Featherby Q.C. to put forward a case based on the most recent ASHE figures. The figures were put in to give a guide to the various levels of earnings for different types of occupations as well as the median gross earnings for all female employees. Although particular calculations were prepared based on those figures, the calculations could not be any more than a broad indication of the likely earnings. Miss Bowron Q.C. invited consideration of the impact of student loan finance in the event that I were to conclude that HS would have been educated to degree level. If the circumstances of the case were different – a claimant with a defined educational path who could be expected to attend university in the next few years – student loan finance would be a significant consideration. Here HS’s notional tertiary education is over 10 years away and her educational path is anything but defined.
  4. The various calculations made by the parties provide varying figures between £223,063 and £327,511. At the conclusion of his submissions on this topic Mr Featherby Q.C. suggested that “a round view” of this head of damage might be appropriate. He argued for an award of £300,000 on that basis. I agree with Mr Featherby Q.C. that a relatively broad brush lump sum approach is appropriate. It does leave the risk that HS will be under-compensated. I do not suggest that JS’s initial ambition and hope for her first child – that she should become a doctor – would have been achieved. But it is not wholly unrealistic for her to have harboured that ambition. Had it come to fruition HS’s earnings would have been very much more than the figures set out above. Nonetheless, I consider that Mr Featherby’s proposed lump sum figure is appropriate. I award £300,000 for loss of future earnings.
  5. Miss Bowron Q.C. argued that some modest deduction from any figure for loss of earnings should be made to take account of travelling expenses to get to work. She cited Eagle v Chambers [2004] EWCA (Civ) 1033 as authority for such a deduction. The Court of Appeal in that case was faced with a judgment in which the judge had made such a deduction. The judgment of Lord Justice Waller did not establish any principle that such a deduction should be made. Rather, Lord Justice Waller declined to interfere with the decision of the judge on the basis that it was not wrong in law. The passage cited by Lord Justice Waller from the decision of the House of Lords in Dew v NCB shows that such a deduction was not to be encouraged. I do not propose to make one for the reasons given in Dew.

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