John Vallance, one of our experienced solicitors from the Medical Negligence Team, secured £4.9m for our client who fell from a hospital window. Clinical Negligence MH (DOB 16 May 81) suffered spinal injuries on 15 February 2005 (aged 23) whilst a patient at Chesterfield Royal Hospital and has been rendered a T8 ASIA A paraplegic as a result of the Defendant's admitted negligence/breach of statutory duty under the Occupiers' Liability Act 1957. MH (male) v Chesterfield Royal Hospital NHS Foundation Trust (2012) Quantum: Paraplegia/Exacerbation of schizoaffective disorder following fall from hospital window. Settlement on 17 December 2012. Gerwyn Samuel of Doughty Street Chambers instructed by John Vallance of Wake Smith LLP for Claimant. Fiona Neale of Hailsham Chambers instructed by Jasmine Armstrong of Weightmans LLP for the Defendant. The Facts On 20 January 2005, MH was admitted to the Mental Health Unit at the Hospital as a voluntary patient. On 8 February 2005, he was diagnosed with a schizoaffective disorder. On 13 February 2005, whilst on a day leave, he took a paracetamol overdose. He was transferred to an A&E Department for the treatment of the physical aspects of the overdose and was placed under level 1 observation (1:1) by the psychiatric team because of the continuing 'very high risk of suicide secondary to delusional beliefs'. MH was transferred to the Emergency Management Unit on the first floor of the Hospital. On 14 February 2005, he was transferred to a side room, which had an unprotected window made of ordinary glass by the side of the bed. During the early hours of 15 February 2005, whilst under supervision, the Claimant climbed onto his bed and jumped through the unguarded window, intending to kill himself, falling 15 feet to the ground below, suffering a crush fracture of the T8. He is a paraplegic for life. Causation The catastrophic injuries suffered by MH exacerbated a pre-existing schizoaffective disorder. MH's case was that his mental health problems would have resolved, but for the spinal injury (albeit that there may have been some occasional temporary relapses). The prognosis for his mental health condition post-accident was guarded. The Defence disputed that MH suffered an exacerbation of his schizoaffective disorder as a consequence of his spinal injury. However, there was no doubt that all of the physical consequences of his spinal injury flowed from the admitted negligence. MH is unlikely to work again, he will require care and support, significant aids and equipment, together with additional medical and other therapeutic treatment. He requires wheelchair adapted accommodation. Capacity Although at the time of settlement MH was not a patient within the meaning of the Mental Capacity Act (MCA) 2005, there was a continuing risk that he might become so for transient periods throughout the proceedings and into the future, such that regular capacity assessments would be required in his lifetime, which would not have been necessary but for his spinal injury. Variable capacity is a novel area of the law and it is unclear how the MCA is to be applied to it. In any event, Lasting Powers of Attorney were taken out for both property/financial affairs and health/welfare and a special needs trust was set up. The proceedings Proceedings were issued on 13 May 2008. Judgment was entered on 20 July 2009 for damages to be assessed. Various interim payments were made by the Defendant to fund (amongst other things) case management, a care package, therapies, temporary accommodation need the purchase of a plot of land and commencement of building works for the erection of a purpose built permanent home (completion due April 2013). A five-day trial on quantum was due to commence on 25 February 2013, but the claim settled at a round table meeting on 17 December 2013. Prognosis The parties' psychiatric experts were agreed that it was too early to provide a useful long-term prognosis for MH's psychiatric condition and that a meaningful prognosis could only be provided once MH was established in his new house with a proper package of support. Settlement The claim settled (MH aged 31) for capitalised value of about £4.9m. The Claimant's breakdown of the settlement is as follows:
(A) General Damages £190,000 £205,000 Interest £15,000
(B) Past losses £1,195,000 (including Loss of earnings, care equipment, therapies and Accommodation) Past loss total £1,400,000
(C) Periodical payments (Care and case management) Capitalised value (approx...) £2,100,000
(D) Other future losses £1,400,000
Total Compensation £4,900,000
Comment
Accommodation claim It was contended on behalf of MH that the traditional Roberts v Johnstone calculation was inappropriate; that the decision in that case could be distinguished; and that the Claimant would be seeking the full capital cost of his new property. This was on the basis that, given the economic downturn and the steady drop in house prices in previous years, the Court can no longer assume (as it did in the R v J case) that the purchase of a property will result in a risk-free investment and provide a real rate of return over inflation. The Defendant maintained that the R v J calculation remained appropriate. Funding MH had the benefit of Legal Aid. A client pursuing a similar case post April 2013 would no doubt require Conditional Fee Agreement funding, as Legal Aid is no longer available. Additional liabilities would not be recoverable from the Defendant and the client's solicitor would be entitled to deduct a success fee of up to 25% of general damages and past losses estimated at £1.4m. The potential deduction from the hypothetical client's compensation would therefore be as much as £350,000 (assuming (i) that basic costs were £350,000 or more; and (ii) that the circumstances of the case justified a 100% success fee). In such circumstances, it is extremely unlikely that sufficient money would be available to the client to fund a land purchase and the construction of the purpose-built accommodation appropriate to his disabilities. Where does that leave the Catastrophically injured claimant?
