The Court of Appeal has dealt a further blow to the argument that defendants should not be liable to pay for the costs of a claimant’s future care where public services are available.
In Peters v East Midlands Strategic Health Authority and others [3.3.09] it was held that the Claimant, Chantelle Peters was entitled to claim full damages for future care costs against the Defendants rather than be dependent on local authority care provision that was available (and already in use). It was reasonable for Chantelle to opt for self-funding and damages rather than seek provision of care and accommodation at public expense.
Chantelle, who is 20 years old, was born with congenital rubella syndrome as a result of the Defendants’ negligent failure to ensure that her mother received a rubella vaccination before she became pregnant. She was severely disabled with a low IQ and significant behavioural problems. Her life expectancy was to the age of 68.5 years. Liability had been admitted in full.
Chantelle was being cared for and accommodated free of charge at public expense under s.21 of the National Assistance Act 1948. She lived at a private residential care home, The Spinnies, where she had been placed by the local authority in February 2007, at a cost of approximately £132,000 per annum.
The Judge at first instance awarded over £3.8m in respect of Chantelle’s future accommodation and care. It was this element of damages that gave rise to the appeal.
The Court of Appeal held the following:
- When considering what should be disregarded in assessing whether a claimant had the means to pay for or contribute towards their care costs the phrase “damages for personal injury” referred to all sums awarded in consequence of such injury, rather than being restricted to general damages awarded for pain, suffering and loss of amenity.
- Chantelle was entitled as a matter of right to pursue the Defendants for damages in respect of her care costs and there was no reason why she should give up that right if she wished to become self-funding rather than become dependent on the State.
- A claimant was entitled to take into account the possibility of future legislative change and the uncertainties of public funding in deciding to opt for private funding.
- The risk of double recovery was not a reason to reject the award to Chantelle as her affairs were being administered by the Court of Protection. This risk could be avoided by placing an appropriate limitation on the deputy’s authority from the Court of Protection to seek public funding for care.
- Mitigation of loss did not arise. Chantelle’s loss was fixed, irrespective of whoever paid the bill, and this could not be avoided, reduced or mitigated. A defendant could not require a claimant to reduce its liability by seeking a contribution from an innocent party.
- It was no part of the duty of a deputy to seek public funding of care when a full award in respect of care had been made against a defendant.
This decision may have financial implications for defendants. In situations where a claimant wishes to rely exclusively on private funding for care costs, the court may well refuse to make any reduction in damages to reflect the possibility of state care provision. Defendants should be prepared to adjust their reserves accordingly.
The decision relates to circumstances where 100% compensation had already been agreed, not where the defendant has agreed to pay only a proportion of damages, as is often the case. In such “apportioned” cases, it is inevitable that the claimant will need to utilise state care services or seek direct payments.
Defendants should continue to make early enquiries when facing a claim to ascertain what funding is available. Claimants should request an assessment under s.47 NHS and Community Care Act 1990 and disclose the results of that assessment, or alternatively agree that the defendant can request one. If an assessment is carried out, this may provide evidence of suitable local authority provision and/or direct payments which a professional deputy may be obliged to consider for their client, especially in cases where the defendant has agreed to pay only a proportion of damages.
It should be noted that this decision relates to the provision of funding for care rather than the increasingly common direct payments, where different arguments may arise.
In addition, if the claimant has a Court of Protection deputy, then defendants should ensure that when a full award is made, there is an appropriate court order in place preventing the deputy from seeking local authority funding on behalf of the claimant in addition to damages. Alternatively, the defendant should request an indemnity when settling a case, ensuring the return of monies to the defendant to the extent of any state care funding subsequently received.