Sowden v Lodge [2003] EWHC 588 (QB)

Case No 1995 S1658[2003] EWHC 588 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Sheffield District Registry
Roya1 Courts of Justice
Venue Strand, London, WC2A 2LLDate Date: 25 March 2003
Before
THE HONOURABLE MR JUSTICE ANDREW SMITH
Between
Louise SowdenClaimant(A patient by her litigation friend, the Official Solicitor)ClaimantJoanne LodgeDefendantE A Gumbel QC and H J Witcomb (instructed by Irwin Mitchell) for claimantS Stewart QC and M Rawlinson (instructed by Silverbeck Rymer) for defendantHearing Hearing dates: 18, 19, 20 February 2003Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.The Hon Mr Justice Andrew Smith
[1]The claimant, Louise Sowden, suffered a catastrophic head injury in a road accident on 24 September 1992. She was born on 21 March 1979, and so was aged 13 years and 6 months at the time of the accident. As a result of it she is a patient, and is acting in these proceedings by the Official Solicitor as her litigation friend. The receiver of her affairs is Mr N D Baker, a solicitor and partner in Irwin Mitchell.[2]By an order made on 18 February 1997 Mrs Justice Smith gave her approval to a settlement between the parties that judgment be entered for the claimant against the defendant for damages to be assessed on the basis of 50 per centof the damages on full liability. I heard the trial to assess those damages in February 2003.[3]At the trial the claimant called evidence from two witnesses of fact, Miss Rachael Brook, a care-worker, and Mr Philip Barker, the claimant’s case manager, and from an expert occupational therapist, Ms A Bristow. The defendant too had permission to call expert evidence, and indeed served a report by Mr D Blackshaw, a registered nurse. In the event, however, the defendant chose not to call oral evidence. The evidence put before me by agreement of the parties included two reports of Dr V Neumann, a consultant in rehabilitative medicine.[4]The only matters that I have to resolve concern damages for future losses. In particular, two questions arise: i) Whether they should be assessed, as is submitted by Ms E A Gumbel QC on behalf of the claimant, on the basis that the claimant is to live in her own accommodation adapted to her needs or, as is submitted by Mr S Stewart QC on behalf of the defendant, on the basis that she is to live in residential accommodation shared with other disabled people and provided by the local authority. In this judgment I shall refer to the latter regime as a “residential” arrangement, and the former as a “private” arrangement. ii) Whether, if a private arrangement is to be the basis for the assessment, damages are to be quantified on the basis that the claimant will have to pay for it herself or on the basis that the local authority will to provide it for her.[5]The determination of these questions, of course, fundamentally affects the amount of the claimant’s damages for future losses, not least because of the National Assistance Act 1948 and the interpretation of it in Firth v Geo Ackroyd Junior Limited and anor [2000] Lloyd’s LR Med 312, Bell v Todd [2002] Lloyd’s LR 12 and Ryan and anor v LiverpoolHealth Authority [2002] Lloyd’s LR Med 23. Those cases all concerned patients, and they decided that an award of damages for personal injuries and any income from a fund administered by the Court of Protection are to be disregarded in determining the liability of the patient to pay the local authority costs of residential care provided under the 1948 Act. Although Ms Gumbel observed that these decisions are all at first instance, I have heard no argument that they are incorrectly decided, and for my part I agree with them. Agreed heads of damages[6]Before coming to the issues between the parties, I set out what is uncontentious. First, the parties have agreed (subject to the court’s approval) that the damages for the claimant’s pain, suffering and loss of amenities should be quantified at £190,000 together with interest of £29,887. Secondly, they have agreed damages for past losses at £83,066.00 together with interest of £14,246.00. Thirdly, they have agreed at £5,419,849.00 the amount of future losses if I find that they are to be assessed on the basis of a private arrangement financed by the claimant. Fourthly, they have agreed some heads of damages in respect of future losses on the basis of a residential arrangement. In the appendix to this judgment I have set out what is agreed in greater detail. I should mention that my understanding is that interest and past losses are calculated to 18 February 2003 and future losses are calculated from that date, but I shall invite submissions about that. I give approval of all the agreements that have been reached. The claimant’s injuries[7]In the accident, the claimant suffered a closed head injury, with haemorrhaging within, and swelling of, the brain. She also fractured her left clavicle, which has healed with some shortening of the left trapezius. She required ventilation until October 1992, and a tracheostomy until 15 November 1992.[8]The head injury caused very severe brain damage, which has brought about cognitive, emotional and behavioural disabilities. The claimant has spastic quadriparesis, which affects her right side more than her left. The voluntary movement of her right upper limb is very limited. She has marked truncal and lower limb ataxia. She suffers from post-traumatic epilepsy.[9]I can best explain the effect of the accident upon the claimant by setting out extracts from some of the reports which have been obtained about her: i. Dr R M Lucas, a clinical psychologist, wrote this in a report dated 11 June 1998 following a neuro-psychological assessment:
“Orientation: Louise was orientated with respect to person but gave incorrect answers regarding time and place on several occasions. Intellectual functioning: The Raven’s Matrice was used to assess Louise’s level of intellectual functioning. This is a test which requires no spoken output. However a minimal level of receptive language is required to complete the tests. Louise was able to solve two of the first five problems. Her poor performance suggests that even this minimal comprehension required proved too great for Louise.”
The opinion expressed by Dr Lucas is summarised as follows:
“1. Louise is orientated in person but not in respect of time and place. 2. Louise has a cognitive profile with clear evidence of severe global impairment. 3. Her variability in performance is suggestive of difficulty in focusing attention. 4. Her ability to recall information from recent and long-term memory is limited. 5. Her language skills are severely compromised. 6. Her perceptual skills appear relatively intact. 7. She did not exhibit marked signs of anxiety or depression.” ii. In a report which is undated but was also made about the middle of 1998, Ms Roslyn Wilson, a speech and language therapist, wrote: “Louise’s linguistic skills are severely disrupted. She is unable to accurately process anything other than the most simple verbal instructions. Ability to understand very basic concepts as to shape and colour is affected. Reading comprehension is not accurate at the single word level and Louise is unable to write. She can communicate little other than very basic needs and desires. These problems coupled with marked distractability and poor initiation have a devastating effect on Louise’s ability to interact with others”. iii. Dr V Neumann reported in March 2000, following an examination in January 2000, that the claimant: “...requires assistance or supervision for all aspects of personal care. Although able to walk for limited distances, she can only do so with support from two other people; this is because of her very poor balance and coordination. She has such severe problems with communication that, effectively, she is dependent upon others to ask her the right questions in the right way (so that they have yes/no or simple choice answers) if she is to have any opportunity to express her views or wishes”
. She also said that her impression was that the claimant:
“understood simple questions but had some difficulty following more complex questions or commands”. iv Dr Neumann made a further report in August 2002 following a meeting with the claimant, and she said that her examination confirmed: “. . . that Ms Sowden was able to understand simple commands and, for example, identify her name from a group of? names on a piece of A4 paper. Similarly she was correctly able to identify a written number selected out of a group of four. She appeared to make sensible and consistent choices by pointing with fingers or indicating yes or no with eye pointing to factual information.” v. Finally, in a report by Ms Gillian Rumble, dated August 2000, there is the following description of an assessment of the claimant’s skills with regard to “receptive language”: “Formal assessment revealed significantly reduced language comprehension in comparison to her anticipated pre-morbid skills. The Test for Reception of Grammar (TROG) wasselected as an appropriate measure of her language comprehension. The assessment requires the candidate to indicate a picture from a choice of four following a verbal description. This is within her physical capabilities. In order to pass a block four consecutive questions need to be answered correctly. Unfortunately, Louise was only able to achieve one block pass, with difficulty even for single word identification. However, her overall performance on the test revealed an ability to follow spoken utterances at the 2 to 3 information carrying word level, eg “the dog is not drinking” and “the boy is jumping over the box”
. Louise has a variable level of understanding which would appear to be due to a receptive dysphasia (language disorder). The functional result of her receptive language impairment is that she experiences difficulty in following detailed, complex spoken language but is able to cope relatively well with simple directions and general conversation within context.”[10]Thus, the claimant is able to understand simple statements. She cannot speak, but she can indicate the responses “yes” or “no” to straightforward questions by looking up or down, and she can communicate by pointing. So, for example, she is able, if presented with alternatives, to choose the clothing that she wishes to wear, and whether she would prefer a bath or a shower.[11]The claimant can finger-feed herself. She has also managed to hold a two-handled plastic cup or beaker, and can generally cope with food or thickened drinks. If she is to have unthickened drink, she needs to be supervised by a carer who knows her well and will prevent her taking too much into her mouth at once.[12]The claimant can only walk short distances if supported by two adults. She has a powered wheelchair, which she can propel for herself with a joystick. More recently the claimant has been learning to operate various “environmental controls”, such as switches for lights, for the radio or for a hairdryer.[13]The claimant is continent of faeces, but on most days is incontinent of urine.[14]Dr Neumann considers that as a result of the accident the life expectation of the claimant has been reduced by some three to five years because of post-traumatic epilepsy. Her opinion is not disputed, and I accept it. The witnesses[15]I should next give an assessment of the evidence of the witnesses who gave oral evidence before me. Of the two witnesses of fact, I found the evidence of Miss Brook the more useful. I accept her evidence in so far as it related to purely factual matters. On occasions she was asked to express an opinion about the claimant’s wishes or moods or character. Understandably, here her evidence was impressionistic and rather vague. Although I do not doubt that she was doing her best to assist the court, I was not always convinced that there was a sound basis for her views. For example, she expressed the opinion that a private accommodation would help to alleviate the claimant’s outbursts of frustration that she has from time to time, but I was not convinced that there is a real basis for believing this would be the case.[16]Mr Barker was a less satisfactory witness, in particular with regard to his evidence about the claimant’s wishes about where she should live after leaving Rooftops.[17]Ms Bristow is an experienced occupational therapist, and was undoubtedly well qualified to give the evidence that she did. It was useful to hear her views, but I thought that her assessment was much influenced by a strong preference for disabled people to have a private arrangement. I was left with the impression that she had been driven in her evidence by her own firm views about this rather than by an impartial assessment of the claimant’s particular case. For example, in her reports she spoke of the claimant engaging in “self-damaging” or “self-destructive” behaviour, which seemed somewhat extravagant language for temporary anorexia. More importantly, I was surprised that Ms Bristow told me that she could see no advantages at all in a residential arrangement, and did not see the choice between a private arrangement and a residential arrangement as a question of weighing advantages and disadvantages on each side. Care of the claimant since the accident[18]At the time of the accident, the claimant was living with her mother and two sisters in Doncaster. When she was injured, the claimant was admitted to the Doncaster Royal Infirmary, and remained in the intensive care there until 12 October 1992. On 14 March 1993 she was transferred to Tadworth Court in Surrey, a specialist rehabilitation unit for children with head injuries. On 23 April 1994 she went to a residential school, Holly Bank School in Mirfield, West Yorkshire and stayed there until April 1998. From about March 1996, she was accommodated at the school in an independent living bungalow with four other students.[19]On 11 September 1998, the claimant became a resident at a residential home in Mirfield managed by the Holly Bank Trust, which is known as Rooftops. It comprises three bungalows, each of which has six residents. Since May 2000, the claimant has been living in the Willow Court bungalow. Rooftops accommodates disabled young people aged between 18 and 25 years. Since Louise is now aged 23, she will have to move in the next year or two.[20]During school holidays, the claimant used to go to a residential home because her mother felt unable to care for her at home. After the accident, from time to time the claimant would visit her family, but her visits have now ceased. In December 1999, a visit over Christmas was unsuccessful, and the claimant returned to Rooftops early. The evidence is that the claimant has not had contact with her mother or sisters since about 2000. She has had little or no contact with her father for many years.[21]On 21 November 2002 the manager of Rooftops wrote to the Doncaster MBC Social Services Department because Holly Bank Trust is proposing to buy a bungalow at Illingworth in West Yorkshire with the intention of converting it into a home for six residents. He indicated that the Trust would be willing to offer the claimant a place there if Doncaster MBC confirmed the funding. I am told that no response has been received from the local authority. The present position[22]I heard evidence about the claimant’s life at Rooftops from Miss Rachael Brook. She is one of the claimant’s carers and has looked after her for some two years. She was referred to as one of the claimant’s two “key workers”.[23]The claimant attends Huddersfield Technical College as a part-time student, taking such courses as media studies and health and fashion. She engages in trampoline activities and hydrotherapy. She goes to football matches, to public houses and nightclubs and on shopping outings, and she visits cinemas and restaurants. At Rooftops she likes to go outside in her wheelchair, but it is not safe to allow her to do so unsupervised, and, according to Miss Brook, she shows signs of being bewildered outside.[24]Generally, the claimant is agreeable and Miss Brook describes her as a person with “a heart of gold”, who likes to decide for herself what she wants. She says that the claimant likes to think of herself as “able-bodied”, and appears to prefer the company of able-bodied people to that of other disabled people. At Rooftops she sometimes seeks out members of staff, with whom she enjoys spending time on a “one to one” basis. Miss Brook said that she considered it important to the claimant to have a lot of individual attention. She also is said to value her independence and will spend time by herself, for example watching television in her room.[25]It was said on behalf of the claimant that she has a strong antipathy against others with disabilities. Ms Gumbel cited in support of this submission passages from Miss Brook’s witness statement to the effect that the claimant finds it difficult to communicate with other disabled people, that there is no other resident with whom she chooses to spend time, and that the claimant seems to consider that there is “a certain stigma” about being disabled. I do not consider that the evidence of Miss Brook taken as whole supports the claimant’s submission. Miss Brook told me that the claimant enjoys going on outings in a group of three or four, including another disabled person. Sometimes she watches television with other disabled people and participates in other group activities at Rooftops. Although it is said that the claimant has been known on occasions to become frustrated and disruptive at Rooftops, and to have rammed her wheelchair into other people, Miss Brook told me that, as far as she was aware, the claimant has never done this because she disliked other residents, and there is no evidence to support that suggestion. I accept that the claimant generally prefers the company of able-bodied people with whom she is able to communicate to that of other disabled people with whom she cannot, but I do not accept that she has an antipathy to the company of other disabled people. The care at Rooftops[26]When the case was opened, various matters were raised on behalf of the claimant that were directly or impliedly critical of the care that she has received at Rooftops. Not all of these points were relied upon by Ms Gumbel in her closing submissions, and I hope that I properly identify the main ones under the following heads: i) The claimant’s depression and anorexia. ii) The standard of care given by the staff. iii) Record keeping. iv) Carers whom the claimant dislikes. The claimant also made reference to delay in paying the Holly Bank Trust’s fees.

Depression and anorexia

[27]After she moved to Rooftops, the claimant suffered for a time from a depressive illness. It apparently caused the claimant difficulty in attending college. She was prescribed prozac in January 1999. There was an attempt in June 1999 to wean her off anti-depressants, but soon thereafter (apparently at the beginning of August 1999, but the date is unclear) she is recorded by her general practitioner as being depressed again.[28]In August 1999, the claimant’s general practitioner, in a letter to a consultant paediatrician, referred to her losing weight at the end of 1998. In November 1999, the general practitioner’s notes refer to her weighing only 6 stone and looking ill, and the doctor wrote to the consultant saying that he (or she) was “increasingly concerned” about the claimant and was “astonished by how much weight she has lost and how ill she looked” A review of the defendant’s care carried out by Rooftops in December 1999 stated that the staff “continue to monitor Louise’s diet and fluid intake thoroughly to ensure that she is receiving a good diet and to help her maintain her weight”. The review also said that she enjoyed sleep as much as food.[29]In March 2000, Dr Neumann reported, “Louise has manifested emotional problems, in particular what appears to have been a severe bout of depression associated with anorexia, presumably reflecting her sadness and frustration at her predicament”. However, a social services review dated 17 November 2000 referred to the claimant having “overcome her bouts of depression” since being moved to the Willow Court bungalow. In August 2002 Dr Neumann reported that the claimant had a good appetite and had gained some weight, that her low mood and anorexia had improved and “there is no indication for anti-depressants”.[30]There is no evidence that enables me to form a concluded view about the cause of the claimant’s depression, or of her eating pattern. Although at one time the claimant was apparently close to her mother and sisters and she would go on home visits to see them, there has been no direct contact between the claimant and her mother since about Christmas 1999. It was suggested that this might have caused or contributed to her low mood, but I cannot say whether or not this was the case. However, I accept the evidence of Miss Brook that, whereas the claimant has sometimes gained and sometimes lost weight, this has been very carefully monitored by those caring for her. It suffices for me to find, as I do, that no connection has been shown between these problems and the claimant’s living environment, that there is no reason to think that the claimant’s depression and eating problems were not properly managed by those caring for her, and that they are not, in my judgment, relevant to the issues that I have to decide. Care by the staff[31]Ms Gumbel, in opening the claimant’s case, drew my attention to entries found in the records about the claimant’s care, as I understand it, in order to suggest shortcomings in the standard of care given at Rooftops. They include, for example, a note in November 1999 that the claimant had not been able to attend college due to a shortage of staff a letter from Dr B E Dafalla, a consultant neurologist, dated 17 February 2000 stating that the claimant had been discharged because she failed to attend his clinic; an occasion in July 2002 when the claimant was given double her dose of anti-epilepsy medication by mistake; and a record in July 2002 that her breasts were red and that staff should be careful that they were properly washed and dried.[32]I do not accept on the basis of this or other evidence that the claimant has not been properly looked after while she has been at Rooftops, still less that I should infer on this basis that the standard of care that the claimant would receive under a residential arrangement would be inadequate. Quite properly, the parties did not seek to explore all these matters during the trial. It might be that there have been isolated lapses in the standard of care, such as are all but inevitable under any regime. However, the standard of care that the claimant has received has not been the subject of previous adverse comment from her case manager, and there is no reason to believe that criticism could properly be made. Records[33]Next, the claimant commented that some of the records about the claimant’s care while she has been at Rooftops seem incomplete. This point was partly answered by the evidence of Miss Brook that at the relevant time, staff were not required to keep a daily record, and partly by the fact that the claimant was away from Rooftop for some periods. In my judgment, there is no evidence of any significant failure to keep records. Carers[34]Although it was said when the claimant’s case was opened that the claimant had contact with carers whom she dislikes, this was not supported by any written or other evidence. Miss Brook said that this was not in accordance with her experience. Again, I reject the suggestion. Payment of fees[35]The Holly Bank Trust have been paid for looking after the claimant from a number of sources, including the Doncaster MBC Social Services Department. At one time, there were payments from the Kirklees MDC and also from a body called Independent Living Funds. The latter two sources of funds ceased, and, apparently as a result, for a time there were outstanding invoices in respect of Holly Bank Trust’s charges. They amounted to nearly £30,000 by May 2000, and to some £33,000 in March 2001.[36]There was apparently some confusion within Doncaster MBC about the payment of fees after other bodies ceased to bear part of them, and there was delay in resolving the problems that arose. However, whatever the reason for past difficulties, I cannot see any reason that this should influence my decision as to whether damages should be awarded on the basis of a private arrangement or a residential arrangement. I accept the defendant’s submission that this matter is irrelevant to anything that I have to decide. The claimant’s wishes about where she should live[37]I next consider the evidence about the claimant’s preferences about her future accommodation. Dr Neumann’s report of 9 August 2002 said that she understood that the claimant had “made it clear that she would prefer to live in accommodation shared with other young people”, but this derives from what she had been told by Mr Barker and other people caring for the claimant at Rooftops. I must therefore consider the evidence of Miss Brook, Mr Barker and Ms Bristow about this.[38]Miss Brook gave evidence about attempts to discern the claimant’s views. The claimant has indicated from time to time that she would like to live with other disabled people in a smaller residence than Willow Court. At other times she has said that she would like a place of her own. Miss Brook considered that she is uncertain what she does want. Miss Brook did say that the claimant does not like to think of herself as disabled, but this generalised observation does not seem to me a sound basis from which to draw any inference as to where she would prefer to live.[39]Mr Barker visits the claimant about once a month, and attends her case reviews. His evidence about his attempts to ascertain the claimant’s wishes was not satisfactory. In his first witness statement dated 3 September 2002, he said that over the “past few months” there had been a number of discussions with Louise about what she would like, and that in order to test her response, he had repeated the same questions himself on different visits, and had had the claimant’s key workers ask her about this. Mr Barker acknowledged that it was difficult to know how far the claimant grasped what she was being asked, but expressed the view that she would like to be in “a small group environment, rather than a larger facility that she is currently in”, and that “she may also enjoy living independently, but with regular social activity”.[40]In a written further witness statement that he made on 22 January 2003 Mr. Barker stated that he had not discussed with her the possibility of a private arrangement. In his oral evidence in chief, however, he said that he had discussed this possibility once, on 18 October 2000. He had written a note of this meeting that recorded that, when she moved from Rooftops, the claimant would like to live in a house with other people (referring, Mr Barker confirmed, to other disabled people), and that she would not like to live on her own with support workers. In cross-examination, he changed his evidence again and acknowledged that he had spoken to the claimant on other occasions about a private arrangement, and he clearly had done so. On 27 June 2001, he had written to the claimant’s solicitors that he had visited the claimant and they “talked about the future”. His letter said that the claimant “is saying she would like to remain in the Rooftops area and to live with other people rather than independently”. His notes also record that on one occasion on 24 October 2001 the claimant indicated that she would like to live on her own “as she is fed up with everyone else this week”.[41]Ms A Bristow in a report dated 24 May 2002 stated that the claimant had “indicated that she would like to live with a small number of other persons in her own group”. However, she told me that the context in which this indication was given was that the claimant was being asked what sort of residential arrangement she would like. She was not being invited to express a preference between a private arrangement and a residential arrangement, and this evidence does not, therefore, go directly to the central question that I am to consider.[42]All this evidence must, in my judgment, be approached with caution. It is not possible to tell whether the claimant is really able to comprehend the alternatives that might be available. It is to be remembered that since her accident, the claimant has had experience only of a residential arrangement, apart from short visits to her mother. Moreover, it is unclear whether, when she was questioned, the claimant realised that she was being asked about the indefinite future or whether she might have been thinking of more short-term arrangements; and whether she understood what support she would be given either under a private arrangement or in a residential arrangement, I do, however, find that the claimant understood that a residential arrangement meant living with other people with disabilities: Miss Brook told me that that had been explained to her.[43]I asked Ms Bristow whether there was any possibility of renting a bungalow on a relatively short-term basis to test how the claimant might respond to living on her own. I was not surprised to be told that this could not be done. Any accommodation of this kind would need to be adapted to the claimant’s particular needs.[44]I draw these conclusions from this part of the evidence: i) The evidence about the claimant’s wishes is tenuous, and in deciding what arrangement would most benefit her, should not be given undue weight. ii) The claimant has never expressed a wish not to continue to live in a residential arrangement with other disabled people. On the contrary, when asked, she has indicated that she would be content to do so. iii) If she is to have a residential arrangement, the claimant has expressed a preference for living somewhere smaller and with fewer residents than Willow Court. iv) The claimant has on one occasion in the past expressed a preference not to have an independent arrangement, and this possibility has not been discussed with her as much as a residential arrangement has. However, when it has been mooted, she has usually indicated that she would be content with one. The approach to assessing damages[45]Leaving aside for the moment the fact that in this case judgment has been entered for damages assessed on the basis of half of the full liability, the purpose of an award in a case such as this is to put the claimant in the same position, financially, as if she had not been injured. As has often been said, since the court is to achieve this by awarding a lump sum, the assessment raises difficult and anxious questions about the claimant’s future. Lord Steyn has said that, “Inevitably, judges will strain to ensure that a seriously injured [claimant] is properly cared for whatever the future may have in store for him”: Wells v Wells [1999] AC 345 at p.384C. The purpose is not only to meet the claimant’s needs arising out of her injuries, but, as far as is financially possible, to restore her life in every aspect to the quality that it would have been but for the accident. However, this does not detract from the fundamental principle that the “aim is to award such a sum of money as will amount to no more, and at the same time no less, than the net loss”: ibid at p 390B per Lord Hope. It seems to me that Ms Gumbel overstated the position when she submitted that the claimant “must not be exposed to any risk which may affect her ability to ensure that she is able to live the life that she would have done”.[46]It is submitted on her behalf that the claimant should be compensated so that she can live in her own home, carrying out activities that she wants to carry out in the way that she wants to carry them out, and that this would provide the most fulfilling life within the constraints necessarily resulting from her disability. Ms Gumbel acknowledged, however, that an award of damages on this basis would only be justified if the claimant has demonstrated that she would not be in an equivalent position in residential care, and that this private arrangement would bring the claimant benefits that a residential arrangement would not.[47]Ms Gumbel also acknowledged that if the local authority is to provide equivalent accommodation without charge to the claimant, she would have no claim for damages in respect of accommodation. Again this is a correct concession: see Cunningham vHarrison [1973] QB 942 at p 952G/H per Lord Denning MR:
“If and in so far as Mr Cunningham accepted the assistance afforded by the state, it would cost him nothing, or, at any rate, much less. It would be like the medical and nursing services already provided by the National Health Service. It does not form an item within the damages for personal injuries.”
[48]Mr Stewart submitted that in deciding whether the claimant should be awarded damages on the basis of a private arrangement, I should also bear in mind what Lord Denning MR said in Cunningham v Harrison (cit sup) at p 952C/E:
“But is it right to charge the defendants with the charge of running a fully equipped bungalow and nursing staff especially for him? He seems to be a very autocratic and talkative man who would not fit well with others in a home for the disabled. For his own sake, it would be better for him to be on his own. But should it all be charged on the defendants? It is often said that a wrongdoer must take his victim as he finds him. But I do not think that should be carried to the length here claimed. There should be moderation in all things, even in a claim for personal injuries. Let him have all such reasonable expenses as are appropriate to a normal person so placed, but let them not be increased by his exceptional personality.”
[49]Mr Stewart argued that the crucial question is whether it is shown that the claimant’s best interests reasonably require a private arrangement. I agree, but if this is shown, the Court will award damages accordingly even though a residential arrangement would be cheaper. In Rialas v Mitchell, unreported, but cited in Kemp and Kemp at Volume 3 A2-011 O’Connor LJ said this:
“[life in an institution] was not a true alternative. There might be case where it would be right to conclude that it was unreasonable for a claimant to insist on being cared for at home but the present case was not one. Once it had been concluded that it was reasonable for a claimant to remain at home.. . [there was] no acceptable ground for saying that the defendant should not pay for the reasonable cost of caring for him there. Where the cost of caring for the claimant at home was substantially greater than the cost of caring for him in an institution, the burden of proving that it was reasonable to be cared for at home was on the claimant.”
[50]I must first therefore consider whether a private arrangement would overall be beneficial to the claimant, and whether this would most nearly restore her, as far as is possible through an award of damages, to the position in which she would have been but for the accident. The claimant submitted that it would. The defendant submitted that a residential arrangement would be in her interests. Both accepted that, whatever the arrangement, the claimant should have carers to look after her in addition to whatever support might be provided by the local authority.[51]The claimant relied upon Ms Bristow’s evidence, and said that under a private arrangement the claimant should have a case manager and a team of carers, led by an experienced nurse. The case manager would be responsible for arranging a plan for the claimant’s care, for selecting and recruiting her carers, and also, for example, for planning her therapies and other activities. The claimant needs continuous care, day and night. At times two carers would be required, to assist in the claimant’s morning and evening routines and to take her on outings and for activities outside her home. According to Ms Bristow, the claimant would require a team of five or six carers, as well as the team leader.[52]Ms Bristow would not support a private arrangement as suitable for the claimant unless all the support that she recommends was provided.[53]The defendant accepted that, if the claimant is to be cared for under a residential arrangement, she would need, by way of additional support and care over that which the local authority would provide, a carer dedicated to looking after her for seven hours a day (or 49 hours per week), and also a second carer to provide further support for five hours on five days each week (25hours per week); and that the assessment of damages should reflect this. (The defendant also accepted that provision should be made in the assessment of damages for the cost of transport for outings, for holidays and for a case manager to supervise the claimant’s care.) Mr Stewart submitted that this additional support would ensure that the claimant has individual attention for much of the day and sufficient care to enable her to be taken on frequent outings with two people to help her.[54]Ms Gumbel submitted, and I accept, that although there is some chance that the claimant might be accommodated by the Holly Bank Trust in the accommodation that they propose to open at Illingworth, this is far from certain. I cannot approach the decision on the basis that the local authority would provide any particular residential accommodation. It would be too speculative to make any assumption about what accommodation would be provided by the local authority when the claimant has to leave Rooftops if a residential arrangement is adopted, and even more speculative where she would be accommodated during the remaining 50-60 years of her expected life. What I can assume, and I do assume, is that the local authority would fulfil its duty under the National Assistance Act 1948 and provide accommodation appropriate to the claimant’s needs, together with other support that falls within the extended statutory definition of accommodation (in section 21(5)of the 1948 Act, which I set out below), support which has been called “a social services care package” (R v North and East Devon HA, exp Coughlan, [2001] QB 213 at para 30). I add that I was invited to approach the case on the basis that local authorities will remain under their present obligations, and not to speculate about possible changes in the statutory regime.[55]It follows from this that I cannot be certain that, if the claimant is to be accommodated under a residential arrangement, she would necessarily live in a smaller place than Willow Court. However, if it be the case that the claimant has a psychological need for such accommodation, the local authority would be obliged to provide it: R v Camden, ex pB [2001] EWHC Admin 271, para 24. In any event, if the claimant indicates a wish for “preferred accommodation”, the Local Authority must comply with the National Assistance Act 1948 (Choice of Accommodation) Directions 1992. Moreover, she would have access to a review panel under section 7B of the Local Authority Social Services Act 1980, a procedure designed “to ensure quality and to protect the interests of complaining that a service to which they are entitled has not been provided to them”. It, of course, remains possible that the claimant’s accommodation would not be smaller than Rooftops, but this consideration is to be weighed with these safeguards in mind.[56]Miss Gumbel also raised the possibility that there might be a dispute between different local authorities as to which is responsible for the claimant’s care. There was no evidential basis for this suggestion.[57]The claimant put forward two arguments in support of her contention that her damages should be assessed on the basis of a private arrangement. i) First, it is said that the purpose of damages is to return the claimant to the position in which she would have been but for the accident; and that “this must mean that the claimant should be compensated so that she can live independently in her own home, with the people with whom she wishes to be with, carrying out activities that she wants to carry out in the way in which she wants to carry them out. ii) Secondly, it is argued that a private arrangement will bring benefits to the claimant, and this would be in her interest.[58]I am not persuaded by the first argument. Of course, but for the accident and her resultant disabilities the claimant would not, in all likelihood, have been living in a residential home. However, when it is said that the purpose of damages is to restore her to the position in which she would have been but for the accident, that does not require the court to award damages for accommodation that most closely mirrors that in which the claimant would have been living, regardless of whether it would be sensible or in her interests to live there. The real question is that to which the claimant’s second argument is directed, what is in the claimant’s best interests.[59]The claimant’s second argument is supported by the evidence of Ms A Bristow. It is submitted that a private arrangement would afford the following advantages to the claimant: i) That she would have a choice about who cares for her, and could change her carers if necessary. ii) That she would have a higher standard of care. iii) That a private arrangement would allow the claimant’s routine to be controlled and adjusted to suit her requirements and wishes, and to enjoy privacy when she wants it. iv) That a private arrangement would allow the claimant to control over the company that she has. Two further points were made on behalf of the claimant: that she does not wish to become “institutionalised”, or “labelled” as a disabled person; and that there should be continuity in the care that she receives and in the people who look after her.[60]These are potentially relevant considerations. I must therefore examine how far the evidence supports the claimant’s contentions, and consider what weight to give to them.[61]First, the suggestion that the claimant might choose who is to look after her: whatever the arrangements for her care, no doubt attempts will be made to have the claimant cared for by people with whom she seems to get along. There is no reason to suppose that the claimant has taken a dislike to particular carers while at Rooftops, or that she is a difficult person to please in this respect. In any case, I am not convinced the claimant is able to play any real part in recruiting or selecting carers, or that this should be a major consideration in deciding what is in her best interest.[62]Nor am I convinced that in reality there would be much role for the claimant in deciding to replace one carer with another. After all, it is common ground that continuity in the care provided for the claimant is desirable, and that it would not be sensible to contemplate changing carers without good reason. Indeed, there is an argument that under a residential arrangement, unlike a private arrangement, there would have scope, should the claimant take a temporary or more permanent dislike to a particular carer, to adjust the carer’ s responsibilities appropriately.[63]The submission that a private arrangement would afford a higher standard of care is difficult to assess. In so far as it rested on the argument that there were significant shortcomings in the standard of care provided at Rooftops, I reject it. I also reject any suggestion that I should suppose that under a residential arrangement the claimant would be given sub-standard or shoddy care. However, a more moderate point is made by Ms Bristow as follows: that the regime which she suggests “involves carefully selected and trained support staff supervised by a team leader with senior nursing experience and managed by a Brain Injury Case Manager approved by the British Association of Brain Injury Case Manager (BABICM). The care regime that I recommend would be of a higher standard and quality than that which is available in the majority of registered care homes”. It certainly seems to me realistic to suppose that if carers were dedicated to looking after only the claimant for 24 hours a day, she will receive more immediate attention. In weighing this point, however, I bear in mind first that damages are to be assessed on the basis that under a residential arrangement the claimant is to have the additional care for a significant part of the day; and secondly that there is no reason to think that the claimant has any specific needs that require particularly skillful nursing or care of an especially high standard.[64]Wherever she lives, the claimant will need to have two carers to look after her on outings, and will therefore be restricted in the times when she can go out. Some planning will always be required here. The defendant accepted that if the claimant is to have a residential arrangement, two carers should be available for 25 hours per week, including some time in the evenings or at weekends. The claimant did not argue that under a residential arrangement, the provision for two carers should be more generous. As far as outings are concerned, it does not seem to me that a private arrangement would give significantly more freedom to the claimant and her carers.[65]A more telling point, in my judgment, is that about the claimant’s privacy, and the desirability of her having control over whether she has company, and if so whose company. The evidence is that the claimant values her privacy, and I accept that. It is natural and understandable that she does so. In a residential arrangement the claimant would, no doubt, be able to find some privacy in her own room when she wants it, as she does at Rooftops. But it is one thing to have privacy while confined to one room, and another to be free to move around one’s home by oneself I therefore give considerable weight to this point, but, again, it should not be overstated. It is the unhappy reality of the claimant’s condition that she can never be far from someone who can help her.[66]I am less impressed by the point that the claimant does not wish to be labelled as a person who is in an “institution”. It naturally evokes a sympathetic response, but I am not convinced of the claimant’s concern about this. As I have found, she has indicated that she would be content with a residential arrangement.[67]I do not doubt that there are advantages in the claimant having continuity in her care, and that frequent changes in those looking after her are undesirable. However, there is no evidence whether continuity is better achieved under a private arrangement or a residential arrangement. I cannot tell which structure is likely to provide a more stable team or carers, and whether staff turnover would be significantly different under one regime from the other.[68]Against these points advanced for the claimant, I must weigh the advantages that the defendant says would be afforded by a residential arrangement. There are, in my judgment, three significant ones.[69]First, as Miss Brook confirmed, the claimant enjoys meeting different people in Rooftops. She uses her wheelchair to visit, and spend time with, different members of the staff there. It is true that she seems to prefer the company of able-bodied people to that of other residents, but she apparently finds pleasure in the variety of the company that she has, and this would be the less if she had a private arrangement.[70]Secondly, there is at Rooftops, and is likely to be at any residential home, more space than the claimant would have in a private bungalow. The claimant makes use of that space, and enjoys both going around the premises and going out into the grounds.[71]Thirdly, and in my judgment importantly, for some ten years the claimant has lived in a residential arrangement. She has had times of depression, but this is not surprising given her disabilities. My overall impression, in particular from Miss Brook’s evidence, is that the claimant has not been discontent with her living arrangements. I do not overlook that the claimant will inevitably face the disruption of a move from Rooftops, but the move to another form of residential care would be less radical than a move to private accommodation. Moreover, a private arrangement would be to some extent experimental, and if it does not work out, the return to a residential arrangement mean further disruption and possibly distress. I do not consider that there are potential advantages that justify this element of unnecessary risk This conservative approach is lent some support by my conclusion about the wishes indicated by the claimant.[72]I conclude that it is in the interests of the claimant to have a residential arrangement. This conclusion, I add, is consistent with the views of Dr Neumann, who stated in her report of 6 August 2002 that she would support as a suitable placement for the claimant accommodation shared with other young people with disabilities. The “50 per cent damages” point[73]In reaching this conclusion, I have not relied upon a further argument advanced by Mr Stewart. He argued that because the claimant is to recover only half of the damages for full liability, the claimant is unlikely, on any view, be able to afford a private arrangement for the rest of her life. Accordingly, it is said, if the claimant has a private arrangement, she is likely to face a disruptive change at some time in the future. Mr Stewart submitted that I should take this into account in comparing the merits of a private arrangement and a residential arrangement.[74]It is not disputed that the claimant will not always be able to afford a private arrangement. It is accepted that she has no other significant resources available to her other than this claim, and that realistically economies cannot be made to eke out her damages and to allow her to perpetuate a private arrangement. However, Ms Gumbel submitted that this consideration irrelevant to an assessment of liability on the basis of full liability, and equally it must be ignored when I assess damages in this case. Although my decision does not depend upon the answer to this point of principle, it has been fully and carefully argued before me, and I shall deal with it briefly.[75]Ms Gumbel drew my attention to section 1(2) of the Law Reform (Contributory Negligence) Act 1945, which states, “Where damages are recoverable ... are subject to ... reduction [for contributory fault], the court shall find and record the total damages which would have been recovered if the [claimant] had not been at fault”. She also referred to what was said by Stuart-Smith LJ in Fitzgerald v Ford [1996] PIQR Q72, a case in which the claimant recovered 75 per centof damages assessed at full liability and in which the defendant appealed the award in respect of general damages and care costs. In refusing an application by the defendant to adduce evidence before the Court of Appeal about the care regime that had been put in place, Stuart-Smith LJ said this:
“The judge had to assess the cost of future care on the basis of what was reasonably necessary. Here the plaintiff recovered only three-quarters of the damages because of contributory negligence. She may have to make economies where she can and if she chooses to spend the damages in a particular way rather than another it does not seem to me that that is a matter with which the court can interfere.”
[76]Ms Gumbel’s submission assumed that the order of 18 February 1997 that damages should be awarded at 50 per centof the damages on a full liability basis, which followed the approved settlement of the issue of liability between the parties, gave effect to an agreement that there should be a deduction of 50 per centon account of contributory negligence and should be treated as equivalent to judgment on the basis of 50 per cent contributory negligence. That is not apparent from the order itself, and although I was told that the defendant’s liability was admitted, there is not material before me that demonstrates the basis for this assumption. However, that is not a point upon which Mr Stewart relied, and I am prepared for the purposes of this judgment to approach the matter leaving this aside.[77]In response to this submission, Mr Stewart said that because the claimant will recover only half the damages assessed on the basis of full liability, on any view if she goes to live in her own accommodation, her money would be likely to run out at some time during the her lifetime, and then she would have to go back into residential accommodation. Mr Stewart submitted that the court should not close its mind to that reality when deciding what is in the claimant’s interests with regard to future accommodation, and that this is a reason for recognising that a residential arrangement would be in her interests and for assessing her damages for future loss accordingly.[78]Mr Stewart argued that the position is analogous to that of a claimant who has available to him medical treatment from the National Health Service. The analogy cannot be pressed too far because of the provisions of section 2(4) of the Law Reform (Personal Injuries) Act, 1948, and because the relevant authorities are not under an absolute duty to provide specific services under the National Health Service: see R v North and EastDevon HA, ex p Coughlin (cit sup) at para. 26. However, the point upon which Mr Stewart relied is that a claimant who seek damages in respect of the cost of future medical care has to prove that he will incur them: see Woodrup v Nicol [1993] PIQR Q 104 at Q114:
“if on the balance of probabilities, private facilities are not going to be used for whatever reason the plaintiff is not entitled to claim for an expense which he is not going to incur.”
[79]I accept the submission of Mr Stewart about this. However, on the facts of this case, if I had not in any event decided that a residential arrangement is in the claimant’s interest, I should have considered this point only a marginal consideration. Mr Stewart appeared to contemplate that, if there were a half- funded private arrangement, the claimant would move to a private arrangement when she leaves Rooftops and in due course return to a residential arrangement (with or without the means to provide her with additional care support there). I do not assume that. It might well be that those looking after the claimant would instead plan on the basis that she should for the accommodation will satisfy the duty in the particular case At the first and third stage the local authority has no discretion, and its resources are irrelevant There is some authority that the local authority’s resources are relevant at the second stage: see R v Sefton MBC, ex p Help the Aged [1997] 4 All ER 532 (but see R v East Sussex CC, ex p Tandy [1998] AC 714 esp at p 748), but assuming that to be the case, it is impossible to doubt the result of an assessment in this case. As for the fourth stage, once a local authority conclude in a particular case that the need which triggers their duty under section 21(a) exists, they must provide accommodation of a kind which will meet the need for care and attention which arises in that case. They cannot at that stage parade their own lack of resources as an excuse for failing to make the necessary provision, though, of course, they are entitled to take that factor into account in deciding how they meet the need by the provision of accommodation, provided it meets that need”: R v Sefton MBC, ex p Help the Aged [1997] 3 FCR 392, pp 401/402 and R v Kensington etc BC, ex p Kujtim [1999] 4 All ER 161 para 21.[83]Accordingly, Mr Stewart submits that if it be the case that the claimant’s needs, whether physical or psychological, are such that she should have a private arrangement, the local authority is obliged to provide accommodation accordingly, and that the claimant could bring proceedings if necessary to compel the local authority to do so.[84]Ms Gumbel submitted that this is not a satisfactory answer to the claimant’s claim. She said that the claimant could only seek to enforce the local authority’s duty by demonstrating “unreasonableness” (in the sense associated with Provincial PictureHouses Ltd v Wednesbury Corpn [1948] 1 KB 223), and that she therefore is reliant upon the local authority’s assessment of the accommodation that she should have.[85]I accept this submission. Mr Stewart argued that, if the local authority failed to provide accommodation for a private arrangement in these circumstances, the claimant would not need to demonstrate unreasonableness because under section 21, the local authority has specific duties, and if the local authority failed to fulfil them, judicial review proceedings could be brought on that basis. This does not seem to me to answer the crucial point: what would be the claimant’s position if the local authority determined that there were various ways in which they could properly provide for her needs, including a private arrangement and a residential arrangement, and they proposed to provide a residential arrangement? I do not consider that simply because it is in the claimant’s interests to have a private arrangement, the local authority would ipso facto be in breach of its duty if it provided residential accommodation, or that it could necessarily be compelled to provide accommodation for a private arrangement. There are two reasons for this: the first is that the requirement under section 21 is that the accommodation be appropriate to meet the needs of the claimant. This, as it seems to me, is a less demanding criterion than that the accommodation should be in the claimant’s best interests and that which most nearly restores her to the position in which she would be but for the accident. Secondly, it seems to me that at the fourth stage of the statutory inquiry, the local authority does have some margin of appreciation as to what accommodation should be provided. If I had concluded that on balance a private arrangement is in the claimant’s best interest, I would not have considered that a local authority could be criticised if it came to the decision that a time being continue in a residential arrangement until she is old enough to move into her own accommodation in the expectation that she could remain there. If at that time it were judged that she should not face the disruption of a move, no doubt the plan would be changed. In short, the potential solutions to the problem of the shortfall in funding are such that it seems to be unduly speculative to give this consideration great weight. The funding of a private arrangement[80]Since I consider that the claimant has not shown that it is in her interests to have a private arrangement, it is not necessary for me to consider Mr Stewart’s alternative submission that, if she were to live on her own and this were in her interests, then the local authority would be under a duty to provide her with her own accommodation, and the assessment of damages should be made on the basis that they would do so.[81]The starting-point of this argument for section 21 of the National Assistance Act 1948. The material provisions of the section are these: 2(1) Subject to and in accordance with the provisions of this Part of this Act. A local authority may with the approval of the Secretary of State, and to such extent as he may direct shall make arrangements for providing: (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; . . . (2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection... (5) References in this Act to accommodation provided under this Part thereof shall be construed as ... including references to board and other services, amenities references to accommodation ... and requisites provided in connection with the accommodation except where on the opinion of the authority managing the premises their provision is unnecessary.”[82]A local authority has no discretion to withhold accommodation from someone assessed to be in need of it (as undoubtedly the claimant would be): R v Kensington & Chelsea, ex p Kutjim [1999] 2 CCLR 340. Moreover, there is little or no room for a local authority to rely upon lack of resources in going about its duties. Mr Stewart drew to my attention the decision of Henriques J in R v LB of Islington, ex p Batantu [2000] 4 CCLR 445, who distinguished four stages in the statutory procedure: the authority’s decision whether to carry out an assessment; the assessment itself; the authority’s decision whether to comply with their duty; and the decision about what residential arrangement met her needs, and provided her with accommodation accordingly.[86]Had I decided that damages were to be awarded on the basis of a private arrangement, I would not have upheld the defendant’s argument that damages should be assessed on the basis that the local authority would provide accommodation for that purpose. Conclusion[87]I therefore conclude that the claimant’s damages are to be assessed on the basis of what I have called a residential arrangement. I shall invite submissions as to the order that I should make to give effect to this judgment. Appendix Claim