Sowden v Lodge

Damages for future care must reflect the claimant’s reasonable needs, rather than the court’s independent view of the claimant’s best interests. The court should compare those needs with the care and accommodation likely to be provided by the local authority. A tortfeasor need not fund an alternative regime where statutory provision, with any practicable additional care, meets those needs.

A proposed top-up arrangement must be particularised, costed and supported by cogent evidence of its feasibility. Contributory negligence affects only the reduction applied after full damages have been assessed. It does not alter the basis on which those damages are calculated.

Two personal injury appeals were heard together. Louise Sowden appealed against Andrew Smith J’s assessment of her future care damages by reference to local authority residential accommodation supplemented by privately funded care. David Drury appealed against Owen J’s award to Philip Crookdake of the cost of private accommodation and a unified 24-hour care regime.

Both claimants had sustained catastrophic brain injuries. The cases concerned the relationship between the compensatory principle and local authorities’ duties under section 21 of the National Assistance Act 1948. The central issues were whether statutory provision, alone or with a damages-funded top-up, would meet each claimant’s reasonable needs, and what evidence was required to establish a workable top-up arrangement. Sowden’s appeal also raised the effect of a 50% finding of contributory negligence on the prior assessment of full damages.

1. Sowden’s appeal was allowed in part and remitted on a limited basis. The correct inquiry was what care and accommodation were reasonably required to meet the claimant’s needs. That differed conceptually from asking what arrangement was objectively in her best interests. On the particular evidence, however, the distinction did not invalidate the judge’s careful conclusion that a residential arrangement was appropriate.

2. The court should compare what the claimant can reasonably require with what the local authority is likely to provide under section 21 of the National Assistance Act 1948, allowing for the uncertainties inherent in future public provision. If statutory provision falls significantly short, the tortfeasor must fund the shortfall or the reasonable alternative regime. If statutory provision meets the reasonable requirements, the tortfeasor need not pay for a different regime.

3. A top-up award was permissible in principle. Its feasibility and suitability had, however, to be established by cogent evidence. In Sowden, the substantial top-up proposal emerged late, had not been adequately particularised, and had not been tested as a workable part of the residential regime. The matter was therefore remitted to Andrew Smith J to receive evidence about whether the proposed augmentation was practicable and likely to be implemented, and then to reconsider whether the residential arrangement met the common law standard.

4. Drury’s appeal in Crookdake was dismissed. Owen J was entitled to find that the likely statutory provision differed materially from the claimant’s reasonable requirements for secure private accommodation and a unified 24-hour care regime. The proposed top-up lacked a sound evidential basis. The absence of evidence about how the local authority would discharge its duty did not assist the defendant, who had not established that statutory care with augmentation would meet the claimant’s needs.

5. A claimant must co-operate with a local authority discharging its statutory duties, but bears no legal burden first to disprove the adequacy of statutory provision. A defendant relying on local authority care and a top-up should identify, particularise and cost the proposed regime before trial.

6. The assessment of full damages precedes any reduction for contributory negligence under section 1 of the Law Reform (Contributory Negligence) Act 1945. The reduction reflects the claimant’s share of responsibility, not how the resulting award may be spent. The 50% finding therefore had no bearing on the care regime by reference to which Sowden’s full damages were assessed.

• Court of Appeal (Civil Division): In Sowden v Lodge [2004] EWCA Civ 1370, the claimant’s appeal was allowed in part and the care issue was remitted to Andrew Smith J on a limited basis. In the related Crookdake v Drury appeal, the defendant’s appeal was dismissed with costs.
• High Court, Queen’s Bench Division: Andrew Smith J gave judgment in Sowden v Lodge on 25 March 2003, assessing damages by reference to local authority residential accommodation with additional care.
• High Court, Queen’s Bench Division: Owen J gave judgment in Drury v Crookdake on 31 July 2003, awarding damages for private accommodation and care.