Impact of state provision on future care claims. The Crofton/Sowden debate.
15 May 2008
In a case where a brain damaged claimant was receiving care in a privately run care home funded by the local authority, Butterfield J held that the claimant was nonetheless entitled to reject dependence on state provision and obtain the full costs of her future care from the defendant tortfeasor.
The claimant had suffered brain damage from birth and was in a care home costing the local authority £132,000 p.a. No charges for such provision could be made to the claimant whose personal injury award would be administered by the Court of Protection. The defendant maintained that it was not obliged to pay the claimant anything in respect of future care costs since her care would be provided free by the State.
The claimant did not want to be dependent on uncertain future State provision. The Regulations governing how and whether her personal injury award would be brought into account in assessing her liability to contribute to care costs might change. Public resources were stretched and could not guarantee the continuing present standard of care.
Butterfield J held that a claimant had an immediate right to full compensation from the tortfeasor defendant. The claimant was not obliged to make herself dependent on State resources for the benefit of the defendant. The principle of mitigation of loss did not assist the defendant. Here the damage was fixed; the question was "who pays?" Further it was reasonable for the claimant to opt for the certainty of full compensation now from the defendant rather than make herself dependent on uncertain future State provision. The Judge was satisfied that there would be no double recovery as the claimant's Deputy would honour the basis of the award.
Leave to appeal was granted.
This case is the latest round in untangling the inter-relation between damages for future care and the availability of "free" local authority care provision. It emphasises the important principle that a claimant has an immediate right to full recovery from the tortfeasor and does not have to make herself dependent on over-stretched public resources just to minimise the damages award for the defendant's benefit.
Nigel Godsmark QC instructed by Freeth Cartwright, Nottingham appeared for the claimant. For a copy of the judgement in this case please contact Paul Eeles.