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Sowden v Lodge and Drury v Crookdale, Court of Appeal, 22 October 2004

29 October 2004
The issues

Residential Care Costs – Local Authority Provision – Whether To Be Taken Into Account By The Court

The facts

In Sowden 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.

In Crookdale the Claimant had been aged 36 when he had had a very serious head injury when knocked from his bicycle by the Defendant’s car. Liability had been admitted and judgment entered in May 2002 for damages to be assessed. The Claimant had been “an outstanding petty officer” in the Royal Marines and was married with a young daughter. He suffered widespread brain damage and was left with profound cognitive and intellectual deficits. The medical evidence was in favour of the Claimant continuing to live in his own accommodation rather than in a nursing home. The Defendant argued that the local authority was under a statutory duty to provide accommodation and ancillary services for the Claimant. It argued that those services were no different from the Claimant’s reasonable requirements as to accommodation and care; that the local authority could not charge the Claimant because his fund of damages and the income that it generated was to be disguarded in assessing his ability to pay; and that consequently the Claimant had not sustained any loss with regard to accommodation and care.

The decision

The real issue was; what was required to meet the reasonable needs of the Claimant and not what was in the best interests of the Claimant; but in the case of Sowden the two questions received the same answer.

In Sowden the Judge was entitled on the evidence to conclude that it was in the interests of the Claimant to have a residential arrangement. His assessment of the evidence had been clear and fair. The Judge had however stated that damages were to be assessed on the basis that under a residential arrangement the Claimant was to have additional care for a significant part of the day. He had been put in a difficult position in which the augmentation finally proposed had emerged only towards the end of the Trial and in cross-examination of one of the witnesses for the Claimant. The Judge was not given, and did not insist, on an opportunity to assess the feasibility of augmentation and residential care in the manner that had been proposed. The Claimant should be given an opportunity to go back to the Judge and demonstrate that the augmentation proposed was impracticable and that, that being so, the balance would be tipped towards a private arrangement. Having decided what was and what was not practicable the Judge should revisit his conclusion as to whether, in the circumstances as were to be found, a local authority based residential arrangement still met the common law test.

In Crookdale’s case the Judge was entitled to find that private arrangement was appropriate because it could not be assumed with confidence that the local authority would fund the necessary care regime.

The Court noted that the Defendant had relied on the fact that no proper evidence had been before the Court as to how the local authority would discharge its statutory duty in providing 24-hour care. That absence did not however assist the Defendant. The Defendant did not call evidence of what the local authority would have, or would be likely to have, provided. That evidence might have undermined the Claimant’s case. Whilst Claimants must be expected to cooperate with local authorities discharging their statutory duties, there is no legal burden on them to disprove the inadequacies of statutory provision. It may be prudent in future cases to provide evidence as to why statutory provision is inadequate.

In deciding whether a private arrangement or residential arrangement was appropriate, the fact that damages would be reduced by contributory negligence should not be taken into account.

Appeal dismissed other than to a limited extent in Sowden.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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