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Sowden v Lodge, High Court, 25 March 2003

7 May 2003
The issues

Residential care costs – mitigation.

The facts

The Claimant had suffered a catastrophic head injury when she was 13 in 1992. She was a patient. Settlement was approved in 1997 whereby Judgment was entered for the Claimant for damages to be assessed on the basis of 50% of damages on full liability. Evidence was given from a Care Worker and the Claimant’s Case Manager and from an expert Occupational Therapist. An issue arose as to damages for future losses, namely whether they should be assessed on the basis that the Claimant was to live in her own accommodation adapted to her needs or on the basis that she was to live in residential accommodation shared with other disabled people and provided by the Local Authority and secondly, whether if the Claimant was to live at home, whether damages were to be quantified on the basis that the Claimant would have to pay for it herself or on the basis that the Local Authority would provide it for her.

Since the accident, the Claimant had attended a residential school between 1994 and 1998. In 1998, she became a resident at a Residential Home managed by the Holly Bank Trust. That Home accommodated disabled young people between 18 and 25. The Claimant would have to move on therefore in the next 2 years. It was submitted that for the Claimant to be in a position in which she should have been but for the accident, she should be compensated so that she could live independently in her own home and secondly that that arrangement would provide her with a choice as to who cared for her; that she would have a higher standard of care; that she would not become institutionalised; that there would be continuity in the care she received.

The decision

1. Whilst the purpose of damages was to restore the Claimant to the position in which she would have been but for the accident, that did not mean that the Court had to award damages for accommodation that most closely mirrored that in which the Claimant would have been living regardless of what was in her best interests or what was sensible.

2. The real issue was what was in the Claimant’s best interests, which was a matter for expert evidence. Having heard expert evidence, the Judge was of the view that it was in the interests of the Claimant to have a residential arrangement. This was a matter of balance. The non-residential option gave the Claimant greater privacy, which was a matter of importance. There were also advantages in the Claimant having continuity in her care, but there was no evidence that that continuity would be better achieved by one arrangement rather than another. On the other hand, there were significant advantages in respect of a residential arrangement. Firstly, the Claimant would have a more social existence. Secondly, there would be more space in a residential home for the Claimant than in a private bungalow. Thirdly, the Claimant had for 10 years lived in a residential arrangement. The Judge formed an impression that she had not been discontent with her living arrangements. A move to another form of residential care would be less radical than a move to private accommodation.

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