The recent case of Loughlin v Singh and others serves as a warning of the importance of ensuring that claimants have access to as suitable a care package to aid their rehabilitation and independence as is possible.
The claimant in this case was severely injured in a road traffic accident when he was aged 12. He suffered a skull fracture which resulted in brain damage to the left frontal lobe. In addition he fractured his left femur. As a consequence of the brain injury his powers of motivation, initiation and organisation were greatly reduced. Academically and socially he was vulnerable. It was argued that he lacked insight and had no capacity to litigate or manage his affairs.
Due to the severity of his injuries, the claimant required a great deal of care and assistance from his mother initially before formal care was put into place. Subsequently he was moved to his own accommodation where evidence suggested he could manage, but only with support. He had no routine for rising or retiring to bed and his life fell into disorder.
Liability was admitted, but quantum could not be agreed and the claim proceeded to an assessment of damages trial when the claimant was 22 years old.
Among the number of issues addressed at trial were those concerning his substantial claim for past care, including the gratuitous care provided by his mother and a private care package. The defendants argued the costs of the past care package should be disallowed in its entirety as the standard of care and case management fell “significantly” below that which could reasonably be expected to meet the claimant’s needs. Evidence suggested the care regime in place in the earlier years had been of a substandard level and had not been tailored to address the claimant’s need for order and discipline in managing his difficulties. When this became apparent, a revised care package was recommended, but not implemented for more than over a year after recommendation. Eventually when a more structured care regime was put into place which included sleep monitoring, the claimant was seen to be functioning better and managing well. The defendants argued that had such support been in place sooner, the claimant would have benefited and his condition improved.
Mr Justice Parker whilst finding the standard of care and case management services was “significantly” below the standard that could reasonably be expected was reluctant to disallow that part of care claim in its entirety as he believed that this would be “wholly disproportionate and unjust” to the claimant. He did however, accept the defendants’ argument had some merit and reduced the charges claimed by 20%.
It is unknown how the claimant’s care providers or solicitors dealt with this judgment, though it is unlikely the claimant would be asked to settle the difference. He was in no position to make any decisions about his care needs and relied on those serving his interests to look after his well being.
The judge did not explain the legal reason for the reduction, which appears to have been arbitrary. Presumably it was on the basis that 20% of the expenditure had been unreasonably incurred because the claimant’s representatives should have refused to pay for this proportion of the cost of the care package because of the failings identified. However, it is wholly unclear how the judge arrived at this figure.
Nevertheless, there is clearly a possibility that other judges will follow this example and defendant representatives will certainly invite them to do so at every opportunity. Since the percentage reduction appears to have been arbitrary, what is there to say a higher reduction might not be applied by a different judge in another case? It might be a small windfall for the defendants, but could be highly damaging to claimants.
It serves as a reminder to those of us dealing with such cases that it is essential to ensure the right care and rehabilitation package is implemented from the outset. To do otherwise is a recipe for disaster.