Tinsley v Sarkar

Damages for future care must reflect the claimant’s reasonable needs, assessed on the evidence. A claimant’s preferences are relevant, particularly in the short term, but they are not necessarily determinative where the proposed regime is unrealistic or unsafe.

Where care may be available under Mental Health Act 1983, section 117, the court must examine the statutory duty, the claimant’s assessed needs, available resources and the evidence of what the authority is likely to provide. The possibility of public funding is insufficient to reduce damages where the authority’s actual provision is uncertain, inadequate or unsupported by evidence.

The claimant suffered severe brain injury in a road accident. Liability had been compromised at 90 per cent, leaving quantum for determination. The principal dispute concerned future care: the claimant sought supported accommodation in his own home near a rehabilitation unit, while the defendant contended that residential accommodation was appropriate and that public authorities would provide much of the necessary care.

The court considered the claimant’s preferences, the competing expert evidence, the suitability of proposed placements, the extent of required support, and whether care under section 117 of the Mental Health Act 1983 should reduce the damages award.

1. Future care. The claimant’s wish to leave institutional accommodation was relevant, especially to the short-term consequences of a move, but it did not determine the long-term assessment. His own-accommodation proposal depended on abstinence from alcohol which the evidence showed was unrealistic. The proposed regime was experimental, unsafe and likely to collapse. A structured residential placement at Redford Court, under the auspices of BIRT, reasonably met his needs.
2. Extent of support. Twenty-four-hour supervision did not equate to twenty-four-hour individual support. The court allowed the basic residential fee, vocational and other activities, additional daytime and evening support, and a higher level of two-to-one support during the first six months. Provision was also made for intermittent inpatient treatment and retention of the residential placement during that period.
3. Section 117 provision. Section 117 imposed a mandatory duty to provide after-care services to qualifying patients. The duty continued until the responsible authorities were satisfied that the patient no longer needed those services, subject to reassessment after any later period of detention. The scope and extent of services involved an assessment of need and a decision whether the needs called for provision. Resources were relevant, although the duty was not means-tested, services were free and there was no power of recoupment.
4. The authorities had not established what placement the Trust would approve or fund. The evidence indicated that the Trust was unlikely to fund either Redford Court or the regime found reasonably necessary. The statutory scheme did not provide the claimant with a right to transfer funding to a different placement or to require a top-up. It was therefore inappropriate to deduct the speculative cost of public provision from the damages.
5. The court made awards for past and future care, case management, earnings, medical costs, transport, occupational therapy and receivership. The total claim was assessed at £3,474,672. After applying the agreed 90 per cent liability reduction, judgment was entered for £3,127,205, exclusive of interest.

The judgment records earlier unsuccessful applications for interim payments, including decisions at first instance by Hughes J and Stanley Burnton J and an appeal concerning interim funding: [2004] EWCA Civ 1098. Those decisions did not determine the final quantum issues.