Damages; Assessment; Cost of Care: Peters v Nottingham Health Authority

Judgment was handed down in the above-named case on May 12th.  The case was an assessment of damages payable to the claimant with congenital rubella syndrome, following an admission of liability by an NHS Trust and a GP.

The principal issue concerned the entitlement of the claimant to damages for past and future care.  The claimant had been provided with accommodation and care by the local social services authority, the Nottingham City Council, and the responsible Primary Care Trust, at The Spinnies, a residential facility.  It was common ground that The Spinnies provided the claimant with an appropriate standard of care.  The defendant's case was that the public authorities would continue to provide her with care at The Spinnies or an appropriate authority without levying any substantial charges, since they were not entitled to have regard to the claimant's award of damages, which would be held in the Court of Protection.  The council was joined as a Part 20 defendant, with the defendants seeking directions as to the council's powers to charge the claimant for her care after her award of damages was paid to her.

Butterfield J ruled that as a matter of law, the council had no power to take account of any capital sum held by the Court of Protection, any income generated by that capital or any payments of that capital on behalf of the claimant.  The council had no power to levy charges in respect of the care provided to the claimant in the past.  However, he went on to rule that the future provision to the claimant and the council's legal responsibility for providing it were uncertain.  It was therefore reasonable for the claimant's advisers to seek sufficient funds for her to fund her future care on a private basis immediately, and there was no double recovery or failure to mitigate damage in doing so.  The cost of future care was therefore awarded on a full life basis on the basis of the present cost of The Spinnies.  He also declined to make any reduction in the multiplier to take account of the availability of free care to the claimant in the immediate future.

The judg has given permission to appeal to the defendants, who intend to pursue an appeal against the decision.  That will give the Court of Appeal an opportunity to consider, amongst other matters, whether the judge's decision is consistent with its decisions in Sowden v Lodge and Crofton v NHSLA.

Edward Faulks QC and Paul Stagg act for the defendant, instructed by Hempsons.  Copies of the judgment may be obtained by email from Paul at pstagg@1chancerylane.com.