Practice and Procedure


PUBLISHED August 1, 2003

A defendant was not able to rely upon the local authority's duty, under the National Health Service and Community Care Act 1990, to argue that the claimant had not sustained any loss in respect of his accommodation and care needs.Determination of quantum in respect of general damages, future care and management, accommodation and costs of receivership arising from injuries sustained in a road traffic accident. The claimant ('C') sustained a very serious head injury when knocked from his bicycle by the defendant's ('D') motor vehicle on 14 September 2000. D admitted liability for the accident in which C suffered widespread damage to the brain with the maximum damage in the frontal and temporal regions as well as other injuries.. C was in a coma for ten weeks, his care and treatment provided by the National Health Service and private funding. Despite making a good physical recovery C was left with profound cognitive and intellectual deficits and a modest reduction in life expectancy. D accepted that the evidence concluded in favour of the provision of accommodation for C in his own home with 24-hour care. The parties agreed the cost of the necessary care regime and case management if D was liable to meet it, but advanced rival contentions as to the appropriate level of general damages by reference to the JSB Guidelines. It was submitted on behalf of C that the case fell within brain damage category (a) 'very severe brain damage', whereas D contended that it fell within category (b) 'moderately severe brain injury'. D also argued that in applying the Roberts v Johnstone formula ((1988) 3 WLR 1247) it was necessary to take account of C's share of the equity in the property occupied by C's wife and child. It was D's primary contention that the local authority was under a statutory duty to provide both accommodation and ancillary services for C and that in consequence C had not sustained any loss with regard to his accommodation and care.HELD: (1) C fell within category (b) 'moderately severe brain injury'. Though his life expectancy was not greatly reduced, his total dependence on others, the degree to which his ability to communicate was impaired by his cognitive deficit, in particular short term memory and behavioural abnormality, the appropriate figure for general damages was ?140,000. (2) There was no issue as to the cost of the necessary care regime, which was agreed at £1,950,000. (3) As a result of his injuries C had to acquire a property in addition to the house that his wife and daughter continued to occupy. A suitable residential property was likely to cost approximately £270,000. It was therefore appropriate to apply Roberts v Johnstone [supra] to the whole of the purchase price of the necessary accommodation. (4) It was agreed that C would incur costs of £80,000 in relation to the appointment of a receiver and administration of the fund. (5) The effect of s.21 National Assistance Act 1948 upon claims for damages for personal injury had been considered in Firth v Geo Ackroyd Junior Limited and Another (2001) Lloyds LR Med 312, Bell v Todd (2002) Lloyds LR 12 and Ryan and Another v Liverpool Health Authority (2002) Lloyds LR Med 23. In each case, it was held that an award of damages for personal injuries and any income generated by a fund administered by the Court of Protection were to be disregarded in determining the liability of a patient to pay the local authority's costs of residential care provided under the 1948 Act. The issue was therefore whether the accommodation and ancillary services that the local authority were under a duty to provide were materially different from C's future requirements as assessed in his claim for damages. The provision that the local authority in the present case was prepared to make, in discharge of its duty, fell far short of the cost of providing the care regime that C required. It was agreed that the appropriate care regime would cost approximately £85,000 per annum, over £1,600 per week. Unless it could be assumed with confidence that the local authority would fund a care regime at a cost of £85,000 per annum, then there was material difference in the care to be provided by the local authority and the requirement as assessed and agreed for the purposes of this claim.Claim allowed.For the Quantum Report in this matter, see Crookdake v Drury (2003) LTLPI 4/9/2003.

[2003] EWHC 1938 (QB)