Abstract
The first Claimant, the executor of the estate of his daughter ‘J’ (the original Claimant who died midway through proceedings), brought a claim for damages on behalf of the estate of his daughter, born on 17 June 1965, pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. The second Claimant, ‘L’, was the first Claimant's grandson who was a minor born on 22 May 1991 and proceeding by his grandfather and litigation friend, the first Claimant. L's claim was brought in relation to the death of his mother ‘J’, who died on 18 March 2006 as a dependant under the Fatal Accidents Act 1976 as amended. Since his mother's death, L lived with his paternal aunt, with the approval of Social Services and had been integrated into her family.
The Defendant was at all times a GP at which J was a registered patient. In summary, J had breast symptoms from 1999 to 2000 including nipple discharge, soreness, itchiness and pain. An incorrect diagnosis of eczema was initially made. The symptoms continued and following eventual referral, Paget's disease was eventually diagnosed on 1 March 2002, over two years later. The Claimant's case was that this delay in diagnosis had caused unnecessary treatment, an adverse prognosis/life expectancy and tragically J's death from metastitic carcinoma of the breast on 18 March 2006 which would otherwise have been avoided.
Initially, J was the original Claimant in the matter. Breach of duty, causation and life expectancy was investigated by way of expert evidence from a GP expert, oncologist and breast surgeon. Proceedings were issued out of Birmingham County Court and ultimately a Defence was filed which admitted partial breach of duty. The Claimant's case was that J should have been referred for specialist assessment on 26 November 1999. The Defendants did not accept this but were prepared to confirm that the Defendant GP ought to have referred J by 19 January 2000 which would have resulted in a diagnosis of Paget's disease by late February 2000.
Aspects of causation remained in dispute. The Defendants contended that J would have undergone left mastectomy axillary node sampling and breast reconstruction/reduction surgical procedures. On further investigation with the Claimant's experts, these points were accepted. However we maintained our allegations that the Claimant would not have undergone the extensive level 3 axillary clearance, which was only necessary due to the spread of metastic disease at that stage, that chest wall radiotherapy would have been avoided and that she would not have undergone chemotherapy. In addition, it was contended that, on the balance of probabilities, J would not have suffered secondary cancer by liver and bone metastases, would therefore have avoided terminal cancer and would not have died on 18 March 2006.
Unfortunately, midway through proceedings, J died. Her father, G was substituted as the Claimant as was J's son, L. The case continued to proceed on a contested basis in respect of partial breach of duty and various aspects of causation.
Following the service of the Claimant's Schedule of Loss, the parties began to enter into negotiations. Apart from damages for pain, suffering and loss of amenity due to J's death, the largest element of the claim was for the care for her during her terminal illness and the substituted care of L, both before and after his mother's death. The quantification of such care was obviously open to interpretation and argument on both sides. The Claimant contended that J was dependent upon friends and family and particularly her parents for care and domestic services, including childcare.
J had been working as a volunteer for Oxfam but from December 2004 had become a part-time paid employee. However, as a result of her terminal cancer and consequential treatment she was unable to move to full-time hours and suffered a loss of earnings. Her modest past and continuing financial dependency was claimed for L.
Other heads were for the loss of a mother, travel and funeral expenses and costs of garden/bathroom adaptations carried out in order to allow J to stay at home for as long as possible before her death.
Summary of quantum
To the estate:
Damages for PSLA – £50,000; Interest on damages for PSLA – £1250; Adaptations to bathroom/garden – just over £5000; Past care (of both J and L to 18 March 2006) amounting to £13,060 with interest of £1567.20; Travel of £1852.88 with interest of £222.35; Funeral expenses totalling £2864.99 with interest of £171.89.
Secondly, in respect of post death care of L by his paternal aunt:
Past care of L since 18 March 2006 amounting to £9100 with interest of £341.25; Future care and services for L at £10,647 (to the age of 18 years) and (the subject of dispute) £9427.60 (to the age of 21 years).
Thirdly to L himself:
Loss of a mother at £4000 with interest of £100; Continuing financial dependency at 50% of net earnings, namely £250 per month or £3000 per annum at a residual multiplier of 4.54 (i.e. £13,620). For the purposes of negotiation it was argued that the scheduled claim would in fact be based upon J becoming a full time manager, at the latest when L left school, and therefore upon gross annual earnings of £15,000.
The above claims (excluding the uncertain head of pre-death loss of earnings) amounted to a total approximate figure of just under £124,000. The Defendants made a Part 36 offer in the sum of £89,807.31. Negotiations took place between the parties and a counter Part 36 offer was made on behalf of the Claimants in the sum of £125,000. There was then an increased offer from the Defendants in the sum of £110,000 which was also rejected. Ultimately, following the progression of Court Proceedings, the Defendant made an enhanced offer to settle (subject to Court Approval) in the gross sum of £117,500 plus reasonable costs and disbursements. CRU amounted to £6340.15 leaving a net figure of £111,159.85. The Claimant accepted this offer subject to Court approval.
Apportionment
Counsel provided a very detailed Advice to the Court for approval purposes dealing with the apportionments of the net figure of £111,159.85. We anticipated a cause for concern by the Approval Judge in respect of future care arrangements for L resting with his paternal aunt. Suggestions were made as follows:
£69,880.23 (£76,222.38 minus the CRU recoupment figure of £6340.15) to be payable to the first Claimant, G, on behalf of the estate. Subject to the administration of the estate, in due course this sum would be inherited by L as J's sole beneficiary; In respect of post death care, £23,559.62 was to be paid out to G, the second Claimant's litigation friend, to be administered for the benefit on behalf of the paternal aunt and for L himself (it is worthy of note that this arrangement was requested by the paternal aunt herself); The total sum of £17,720 was to be invested for L in the Court Funds Office (£4100 for the loss of a mother and £13,620 in respect of future financial dependency).
The Approval Judge was happy to formally approve the settlement and apportionments as set out by the Claimant's Counsel and formally made an order encompassing the same on 4 November 2007.