Eagle v Chambers

Listed social-security benefits must be disregarded when damages are assessed. This prevents a defendant from requiring a claimant to use a future mobility allowance to mitigate a future mobility loss. Where a private care regime is required, the defendant must prove that a particular NHS or social-services item will actually be supplied before its private cost may be disallowed.

Investment-management and panel-broker fees are not recoverable merely because a claimant is a patient. They arise from the management of the damages fund rather than the injury. Ordinary work-travel costs and interest for delay remain matters of practical and discretionary assessment.

The claimant suffered severe brain damage when she was struck by the defendant's car. Following an earlier determination of liability, Cooke J assessed damages at £1,499,268.13 in the High Court: [2003] EWHC 3135 (QB).

The claimant appealed numerous heads of loss, including social-security benefits, transport, NHS and social-services items, cleaning, interest, and the costs of a receiver and panel brokers. The defendant's respondent's notice challenged the award for assessment and rehabilitation at the Kemsley Unit, the privately funded care regime, accommodation, and rehabilitation costs.

The central issues were the proper compensatory assessment of future care and mobility losses, and whether state provision or the management of a damages fund could reduce the defendant's liability.

1. Appeal allowed in part. The court dismissed the defendant's challenge to the costs of assessment and nine months' rehabilitation at the Kemsley Unit. The evidence established that rehabilitation was appropriate, likely to improve the claimant's quality of life and behaviour, and likely to reduce some care needs, even though it would not reverse her brain damage. The court also upheld the finding that she required a privately funded, structured care regime.
2. Under section 17 of the Social Security (Recovery of Benefits) Act 1997, listed benefits must be disregarded in assessing damages. The defendant could not require the claimant to use future mobility allowance to obtain cheaper transport through the Motability Scheme. The court allowed the transport appeal and accepted the concession that income support should not have been deducted from past earnings.
3. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 requires the court to disregard the availability of NHS facilities when assessing the reasonableness of private expenditure. The real inquiry is whether the claimant will in fact receive the relevant service. Once a private care regime had been found necessary, the defendant bore the burden of showing that laundry, chiropody and Tena pads would actually be supplied by the NHS or social services. It had not done so, and those appeals succeeded.
4. By a majority of Waller LJ and Scott Baker LJ, panel-broker fees were not recoverable. The reasoning in Page v Plymouth Hospital NHS Trust [2004] EWHC 1154 (QB) was approved. The investment assumptions underpinning the award did not make the defendant liable for the costs of a later decision to invest more widely. There was no principled distinction between a patient and a non-patient. Buxton LJ dissented on that issue, considering the fees an inevitable consequence of the claimant's incapacity.
5. The court restored the allowance for extra cleaning and allowed the other successful items. It dismissed the challenges concerning insurance, ordinary travelling expenses, increased smoking, receivership costs, interest, and the GEWA control unit. The claimant could not advance untested factual criticisms of the expert care-costing evidence for the first time on appeal.

• Court of Appeal (Civil Division) Allowed the claimant's appeal in part and dismissed the defendant's respondent's notice: [2004] EWCA Civ 1033.
• High Court (Queen's Bench Division) Cooke J assessed damages at £1,499,268.13 following the serious road-traffic injury: [2003] EWHC 3135 (QB).