Sowden v Lodge

Damages for future accommodation must reflect the claimant’s reasonable needs and best interests, rather than simply reproduce the life that the claimant would probably have led without injury. A private arrangement may be awarded even where residential care is cheaper, but the claimant must establish that it would provide material benefits which residential care would not. The court may assume that a local authority will perform its statutory duties and provide accommodation appropriate to the claimant’s needs, but cannot assume the provision of any particular placement. Where the claimant’s evidence of preference is uncertain, the court may adopt a conservative approach, especially where private accommodation would be experimental and a later change could cause disruption.

The claimant suffered catastrophic brain damage in a road accident. Liability had previously been compromised on the basis that judgment would be entered for 50 per cent of damages assessed on full liability. The assessment concerned future losses only.

The parties agreed the figures for a private arrangement privately funded and for a residential arrangement. The central issues were whether the claimant’s future accommodation should be private or residential, and, if private accommodation were appropriate, whether it should be assumed that the local authority would provide it without charge.

1. Outcome. Future damages were to be assessed on the basis of a residential arrangement. The court approved the agreed heads of damages and invited submissions on the consequential order.
2. The purpose of damages is to restore the claimant, so far as financially possible, to the position she would have occupied without the accident, while awarding no more and no less than the net loss. That principle does not require accommodation which most closely mirrors the claimant’s hypothetical pre-accident life.
3. The operative question was whether private accommodation would overall benefit the claimant and most nearly restore her position. A private arrangement could be justified even though residential care was cheaper, but the claimant bore the burden of showing that it was reasonably required and offered significant advantages unavailable under residential care.
4. The claimant’s evidence of wishes was tenuous. She had never expressed a wish not to live residentially and had indicated that she would be content with such an arrangement. The court gave weight to privacy and control over company, but found no sufficient evidence of superior care, materially greater freedom for outings, or better continuity under private accommodation.
5. Residential care offered variety of company, greater space, continuity with the claimant’s established arrangements, and less risk of disruption. A private arrangement would be experimental and might require a later move if it failed. Those considerations outweighed its potential benefits.
6. The court could assume that the local authority would fulfil its duties under the National Assistance Act 1948 and provide accommodation appropriate to the claimant’s needs. It could not assume a particular placement. The statutory criterion of appropriate accommodation was less demanding than accommodation which was in the claimant’s best interests and most nearly restored her pre-accident position. The local authority retained a margin of appreciation in selecting the accommodation.
7. The 50 per cent recovery issue was not determinative. The court accepted that a claimant must prove that privately funded future care would actually be incurred, but treated the point as marginal because other arrangements might address any future shortfall. Had private accommodation been held to be in the claimant’s interests, damages would not have been assessed on the assumption that the local authority would necessarily fund it.

First-instance judgment. The judgment records an earlier order dated 18 February 1997 approving settlement of liability on the basis of 50 per cent of full-liability damages.