A High Court Judge’s ruling to award £2.4m interim damages to a severely disabled 12-year-old Claimant has been hailed as a ‘life-changing’ decision for the girl and her family following a struggle to find suitable accommodation.
The Claimant sustained a hypoxic brain injury due to errors made during her birth, leaving her suffering from quadriplegic cerebral palsy and microcephaly. She is very severely disabled, with limited mobility and requires a wheelchair to move around.
She also has significant cognitive impairment and is wholly reliant upon others, principally her devoted mother, for all of her needs.
Medical negligence specialists, Hudgell Solicitors are acting on behalf of the Claimant and her family and have valued the total damages for the claim, which can only be confirmed in court when she has fully matured and the life-long impact of her injuries can be fully assessed, taking into account general damages, interest, past and future losses.
However, despite defendants Barts Health NHS Trust accepting it would eventually pay 80 per cent of the damages which would have been awarded upon the basis of full liability, the family had only received one previous interim award in November 2015.
Now, following the ruling by His Honour Judge Curran QC in the High Court (Porter v Barts Health NHS Trust  EWHC 3205(QB) the family will be able to purchase a suitable home – with the approval of the Court of Protection – which has been identified as available for conversion.
It is suitable to accommodate the Claimant, her family and carers for the future, with sufficient space for wheelchair access and internal use.
The Claimant’s family have been unable to find suitable accommodation and have remained in a three-bedroom, rented council house described by specialist surveyors as ‘wholly unsuitable’ for the Claimant’s needs.
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Mother delighted as daughter will now receive ‘all care she needs, in her own home’
Speaking after the interim damages were awarded, the Claimant’s mother said:
I am lost for words and overwhelmed with this amazing outcome.
It means my daughter will now be able to receive all the treatment and care she needs so much, in her own home and I am so excited to see her have the opportunity to flourish and be the star we all know she is.
I cannot thank my legal team enough for supporting us and always working so hard for us.
The interim payment application, conducted on behalf of the Claimant by Simon Fox QC of No. 5 Chambers, was made at a time of uncertainty in the law due to the negative impact of a change in the “discount” rate (affecting the calculation of future losses) and the problems it creates in obtaining an interim payment in a case where accommodation is a major cost in the claim. The ruling addressed this issue.
One of four children in the house, aged between 18 and 2, the Claimant and her family have been living cramped in their small two-storey house, which has only three small bedrooms.
Solicitor Kent Pattinson, who was supported in the case by Trainee Solicitor Nicola Downey, said:
It had been common ground in the case that the family’s current home was completely unsuitable, but given the limited funds available to them from the previous interim payment, it has proved impossible to find a new home which would meet their specific needs.
The 12-year-old Claimant on alternate evenings, was having to sleep downstairs on the sofa, as due to her lack of mobility and no adaptation to the current home, she has been unable to get upstairs.
This meant her mother and sister were taking turns sleeping downstairs so that she was not left on her own. This arrangement has meant, however on alternate days, her mum has been having to carry her up and down the stairs.
The Claimant uses a wheelchair for mobility but the house has insufficient space for her to move freely. The doors are not wide enough for an electric wheelchair to pass through. Moreover, there are no facilities or room for her to have any form of physiotherapy, with consequential adverse effects on her legs in particular.
Such was the difficulty finding a suitable new home, Hudgell Solicitors instructed a professional property-finding company in 2016 to help. A large house has now been identified as available for conversion, suitable to accommodate the Claimant, her family and carers, with sufficient space for wheelchair access and internal use.
Surveyors confirmed that, if converted and adapted, it will satisfy all requirements in terms of suitability for the Claimant’s use.
The interim payment will fund the cost of the home and the associated costs in terms of conversion works, adaptation and fittings.
In addition, as the quantum hearing in the case is listed in October 2018 there is a need for a further year’s care and case management costs.
Mr Pattinson added:
This award of interim damages required is life-changing. There is no doubt about it.
It was our case that there was an urgent and pressing need for alternative premises to be purchased and converted, adapted, and equipped, as their present accommodation is neither suitable for the Claimant’s disability nor for the care which she requires.
The evidence from her mother and grandmother highlighted that there was no doubt about the urgency involved. With every passing week, the Claimant’s mobility continues to deteriorate, as there is insufficient space in her present home for her to be able to move, other than to crawl very short distances.
Today is the start of a much more positive future.