Duffield v Cumbria & Lancashire Strategic Health Authority

Damages for future care should provide such care as is reasonably required to secure, so far as possible, the injured claimant’s independence and ability to enjoy life. The assessment must not assume that relatives will continue providing care merely because they have done so in the past. Relatives are under no legal duty to provide it. A care package should therefore be assessed by reference to the claimant’s actual needs, including supervision, stimulation, safety and night-time assistance. The court may award the cost of paid care even where the claimant is expected to live with or near family members.

The claimant sustained severe brain damage and cerebral palsy as a result of admitted negligence at birth. Liability had been determined, and the remaining issue was the appropriate annual cost of her future care after leaving school. The parties advanced competing expert care packages: rota care, involving several carers and sleep-in care, and residential care, involving a rotating resident carer. The court also considered the extent to which day-centre attendance and family assistance should reduce the care award. The accommodation claim was adjourned.

1. Future care. The court held that damages should fund care sufficient, so far as possible, to place the claimant in the position she would have occupied without the tort. This included care required to secure safety, supervision, stimulation, assistance with activities and the development of independence. The defendant was responsible for funding that care.
2. Family assistance. The claimant’s mother was under no legal duty to continue providing care. The award was not to be reduced on the assumption that she could be relied upon as part of the care regime. The claimant and her family were entitled, so far as possible, to resume a normal family relationship rather than one of carer and dependent. The reasoning was consistent with the approach described in Biesheuvel v Birrell [1999] P.I.Q.R. Part 3 Q 40.
3. Choice of package. The rota-care proposal was preferred. The residential-care proposal involved excessively long periods on duty, low effective hourly rates, limited flexibility, insufficiently clear management arrangements and inadequate provision for training. It therefore carried a significant risk that the claimant would not receive the care and attention required.
4. Day care and night care. It was unrealistic to assume attendance at a day centre for five days each week. An allowance was made for intermittent day-centre use, but not for a general reduction based on presumed family assistance. Night-time care was included because the claimant could not safely be left alone and should not be assessed as dependent on her family for assistance.
5. Assessment. The appropriate annual future-care figure from July 2006 was £91,958.20. The accommodation claim remained adjourned, and the judge directed that counsel be heard on the appropriate form of order.

Liability had been determined by judgment dated 9 November 2004. The present judgment was a first-instance determination of future-care costs and did not record an appeal.