Claims for future care – navigating through the choppy waters of conflicting case law
In October the Spinal Injuries Association held a Solicitors’ training day, supported by Outer Temple Chambers, at the Law Society’s Hall.
As part of this training, Jonathan Hand QC and Olinga Tahzib, both of Outer Temple Chambers, gave an insightful talk on the key issues in respect of recovering the cost of care provided to those injured by the negligence of others. .
Working in the spinal injuries team at Bolt Burdon Kemp, I appreciate that spinal injuries can often result in significant and expensive care packages being required. The cost of the care package can be one of the more expensive items claimed as part of the claim and it is therefore important to understand the basis on which care costs can be recovered and the Court’s approach to this.
What is reasonable?
The case of Sowden v Lodge [2004] EWCA Civ 1370 has long been the starting point for judges when deciding between competing care packages. An issue had arisen over future losses, namely whether the Claimant, who had suffered a catastrophic head injury, should live in her own, adapted, accommodation or a residential care home. In his decision, the judge decided that a Claimant is entitled to recover what is required to meet reasonable needs for care resulting from their injuries rather than what is in their best interests.
Two more recent cases have shed light on how judges will determine what is reasonable. In the case of Massey v Tameside etc NHS Trust [2007] EWHC 317, it was determined that the Claimant was entitled to choose the care package, so long as that choice was reasonable. Whilst Smith v LC Window Fashions Ltd [2009] EWHC 1532 went a step further and determined that the Defendant had to show that the Claimant’s care was unreasonable rather than simply offer a cheaper, reasonable care package.
Consequently, there is a 3-stage approach that judges take when assessing future care:
- What are the Claimant’s future care needs?
- Is the Claimant’s chosen model of care reasonable? And
- What are the reasonable costs of meeting the Claimant’s future needs?
Double-up Care
The potential need for two carers for certain activities has long been a big battleground and is generally assessed on the specific facts of the case.
In favour of the Claimant
The judge in A v B Hospitals NHS Trust [2006] EWHC 1178 took a very favourable stance towards the Claimant. He was of the opinion that the reduced transfers by only having one carer would seriously damage the Claimant’s quality of life and would therefore be unreasonable. As not all transfers can be planned, two carers should be available throughout the day so that transfers can be carried out immediately, when and where they were required.
In the spinal injury team at Bolt Burdon Kemp we often see the issue of two carers being raised by Defendants. However, we feel strongly that our clients’ quality of life is not restricted by insufficient care provision. Consequently, we recognise how important it is for our clients that we argue for the care packages that allow our clients to go about their life in manner that is as close as possible to what they enjoyed before their injury.
In Massey v Tameside etc NHS Trust, the judge followed a similar train of thought, stating that the care should give the Claimant “independence, freedom of choice, autonomy and mobility…” Focussing on the quality of life, the judge took the belief that should one carer limits the Claimant’s daily activity, then two should be provided even if it means that the extra carer won’t be needed for parts of the day. It is clear to me that this must be the correct approach.
Finally, in Wakeling v McDonagh, the judge stated that “the obligation upon the Defendant is to provide not simply what is necessary for [Claimant] to survive but what he reasonable requires”. Consequently, in order to provide the Claimant what is reasonable it may be that at times the provision of care available is not utilised to its full capacity. This waste of resources is something that the Defendant should bear given the unfairness of placing restrictions on his enjoyment of a very limited life.
In favour of the Defendant
In Farrugia v Burtenshaw [2014] EWHC 1036, the judge took the opinion that a balancing act was required between respecting the personal autonomy of the Claimant and avoiding the presence of unnecessary care. He stated that a reasonable care package should take into account a degree of pre-planning and organisation. However, a Claimant’s personal autonomy is not overridden by allowing a care package that permits for complete spontaneity.
I personally find this decision quite disappointing. Had it not been for the Defendant’s negligence (which resulted in limiting the autonomy of the injured person), the injured person would not have required the care support package and consequently the Defendants should do all in their power to allow the injured person to live his or her life in a manner as close as possible to what they enjoyed before their injury.
Discounts in Care
Contingencies
When assessing future care costs, judges may take into account the risk that the Claimant won’t incur all future care costs.
In a particularly extreme case, Huntley v Simmons [2009] EWHC 405, it was decided that a discount of 15% on future care was suitable due to the risk of the Claimant being sent to prison and the risk he would refuse to accept care. The Claimant in question had a criminal history and the judge factored in the risk that the Claimant would potentially not utilise the full care provision.
It is worth noting that these types of cases are very rare. From our experience, clients are keen to have care in place to allow their loved ones to return to being husbands, wives, children and not carers.
Care whilst in hospital
Whilst not usually the most significant head of loss, contingencies are also taken into consideration for care provided by family or friends to the Claimant in hospital.
In Havenhand v Jeffrey (unreported, 1997 CoA) a claim for care by the Claimant’s family in the hospital was allowed. That said, not all hours claimed by the Claimant were permitted. The judge focussed on the physical care, i.e. accompanying the Claimant on trips around the hospital was allowed, however not emotional support or companionship.
However in Warrilow v Norfolk and Norwich Hospitals NHS Trust [2006] EWHC 801 (QB) the Defendant’s argument that Havenhand established the principle that companionship could not amount to care was rejected. Rather, it was deemed that companionship can amount to care if it facilitates the Claimant’s recovery. The key question is whether the visit was to aid recovery or simply an ordinary social visit that would have happened in any event.
Future cases, such as Huntley and Tagg v Countess of Chester Hospital Foundation NHS Trust [2007] EWHC 509 (QB), blurred the landscape however by denying care claims for hospital visits entirely.
Finally, Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB) clarified the issue, following the approach favoured in Warrilow. It was put that the issue to consider was whether the time spent by the family would otherwise not have been spent with the Claimant. The example given was where a person may be in danger of harming themselves or slipping into depression, in which case, companionship may be an essential part of care.
Conclusion
The differing judgments regarding claims for future care have created a complex environment in which to assess the value of such claims. It is therefore of paramount importance that those wishing to bring a spinal injury claim and in fact any claim involving catastrophic injuries, instruct specialist solicitors to steer through these choppy waters. In the spinal injury team at Bolt Burdon Kemp, we have a wealth of experience conducting such claims and we strive to achieve the best possible care that fully provides for the needs of our clients. We recognise that no two cases are the same and each individual requires a carefully planned care package that adheres to their particular needs. We navigate through the conflicting case law to allow our clients to enjoy a quality of life as close as possible to what they had before their injury.
