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AB (a child) v Nottingham University Hospital NHS Trust

Margaret Bickford-Smith KC and Jack Ferro acted for a child Claimant, aged 16 at the date of approval, in a claim for damages for clinical negligence during the management of her birth in the Defendant’s hospital. The Claimant suffered an acute hypoxic insult during labour giving rise to hypoxic ischaemic encephalopathy and dystonic athetoid cerebral palsy. She was left with severe physical disabilities, but relative preservation of cognition. The liability issue was compromised in 2006 on the basis that the Claimant should recover 75% of the full liability valuation of her claim. The issue of quantum, compromised in round table meeting, received Court approval on 19th July 2012: a lump sum payment of £1.6 million, followed by periodical payments of (before uprating for inflation) £105,000 per annum to age 21 and £170,000 per annum thereafter. The settlement , arrived at on the previously agreed 75% liability basis, equated to a lump sum of approximately £5.7 million: on a full liability basis this would have been a £7.6 million award.

The Claimant suffered from severe physical disabilities; she was unable to walk or stand without assistance, unable to feed, dress or toilet herself, and suffered from uncontrolled athetoid movements in her limbs. She also had communication difficulties, with severely dysarthric speech, and cognitive deficits, particularly in areas of non-verbal intelligence, visual and spatial reasoning. She attended a special school, but received significant additional input through a privately funded teaching assistant, as well as specialised assistive technology designed to facilitate learning and leisure activities. She received ongoing physiotherapy, occupational therapy and speech and language therapy. The claim proceeded on the basis that the requirements for assistance and therapies, modified over the years, would be continuing.

Her life expectancy was disputed, as being to ages 54 or 57. It was agreed that she would never be able to carry out remunerative employment, and would require extensive support from carers and therapists for the remainder of her life.

Notable features of the case include

  • Care proceedings during the currency of the High Court claim. Family circumstances were troubled, with the Claimant at one stage being taken into care following allegations of sexual abuse. The domestic situation was uncertain for a number of years, and there were difficulties in carrying out important decision making functions on behalf of the Claimant.
  • The High Court proceedings being taken off track.
  • Detailed consideration required for the Claimant’s phased return, after leaving Local Authority residential care, to the family home.
  • The fact that the Claimant’s home still by the date of approval was Local Authority accommodation which, despite adaptations, was so cramped as to prevent a proper care regime from being introduced.
  • Third party intervention.  The Local Authority successfully applied to be joined as an intervening party. This gave rise to some delay, and issues of procedure and disclosure, but in the event the terms and limits of the intervention (in particular the intervener’s right to be a party to and/or to affect the course of settlement discussions) were never tested in Court.

Special issues arising from the 75% recovery.

There were complex problems as to

  • Most importantly, the purchase of a suitably adapted home since there was no available fund of capital to fund the purchase. The accommodation claim was therefore advanced on a number of alternative bases, on the grounds that a conventional Roberts v Johnstone award, especially when reduced by 25%, would be insufficient to enable any workable accommodation solution to meet the Claimant’s needs.
  • the practical implementation of care and therapy regimes the cost of which were not recoverable in full
  • The requirement for detailed financial advice, both as to the balancing of the lump sum award and periodical payments so as to provide sufficient flexibility to enable the 25% shortfall in the cost of therapies to be met, and as to the framework for purchase and adaptation of a suitable property so as not unduly to deplete the capital fund.

Margaret Bickford-Smith KC and Jack Ferro were instructed by Nelsons, Nottingham (Bruce Williams)

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