Benford (A Child) v East And North Hertfordshire NHS Trust (Rev1) [2022] EWHC 3263 (KB) (19 December 2022)

n this clinical negligence case liability is admitted by D for the quite severe brain damage suffered by C during her birth on 6 December 2016. [4]

The issue in this case is whether the trial listed for May 2023 should be adjourned on the assertion that the assessment of future loss and expense arising from C’s injuries is either impossible or so speculative that it would be unjust to D. [6]

The overriding objective of achieving justice between the parties in my judgment is achieved by a trial taking place in May 2023. The burden of proof is on C in relation to general damages, past loss and expense and future loss and expense. If on the balance of probabilities, as a result of the expert evidence, C cannot prove any particular future head of loss or part thereof, due to uncertainty, that head of loss or part thereof will not be awarded. If it can be proven with some uncertainty over the future details that can be dealt with by discounting or step changes in the award. Therefore the uncertainties in the evidence called by C are probably a disadvantage to C or at least mainly to C. In relation to expert evidence called by D the Court has seen none of it… Making awards for damages for future loss is an exercise based upon a comparison between an estimate of what the “but for” position would have been and what the “future actual” position will be. Both of those are crystal balls through which the judge has to look with the guidance of experts. Certainty is admiral but is often not achievable. Uncertainty is ever present in such assessments. The Courts are used to assessing probabilities. [48]

after balancing all of the factors set out above the trial date should stand [58]