A (a child) v B Hospitals NHS Trust

Damages for future care must reflect the claimant’s reasonable needs, assessed objectively. Existing family arrangements may demonstrate that a proposed regime is effective, but they cannot determine what care is reasonably required. Where the evidence establishes that safe and timely transfers require two carers, provision may be made for two carers throughout the relevant daytime periods, particularly where transfers are frequent, unpredictable and medically necessary. A claimant’s parents may reasonably choose to resume a parental rather than a physical caring role. The defendant bears the burden of proving that future public-authority care will be provided free of charge. Where the authority may means-test and charge for care, no deduction should be made from damages on that account. Reasonable nursing supervision may be allowed even where hands-on nursing care is unnecessary.

The claimant sustained catastrophic cerebral palsy following hypoxic-ischaemic damage during his birth. Liability was admitted, and the hearing concerned quantum, principally the cost and form of future care.

The parties agreed most heads of damage, life expectancy, the need for 24-hour care, hourly care rates and the cost of night care. The remaining issues included the need for two daytime carers, parental care, possible local-authority provision, nursing supervision, contingency care, care-team meetings, additional employment costs and whether damages should be paid as a lump sum or by periodical payments.

1. Reasonable care needs. The court assessed the care required to meet the claimant’s reasonable needs. The existing regime was relevant evidence of efficacy but could not pre-empt the objective assessment of reasonable need, applying Sowden v Lodge and Campbell v Mylchreest.
2. Two carers. The claimant’s epilepsy and oral secretions did not materially require two carers at all times. The decisive issue was transfers. The combination of his voluntary and involuntary movements, size and weight made single-carer transfers unsafe. Transfers would remain frequent and medically necessary for positioning, hygiene, comfort and use of the standing frame. Two carers were therefore reasonably required during the daytime periods spent at home, including throughout the claimant’s life.
3. Parental care. The parents could reasonably choose to use professional carers and return to a parental role. Their proposed contribution was accepted. Parental care in the first phase was remunerated at the basic Spinal Point 8 rate, rather than an enhanced rate.
4. Public-authority care. The defendant had to establish that future local-authority care would be provided free of charge. Under sections 17 and 29 of the Children Act 1989, care could be means-tested and charged. Adult care under section 29 of the National Assistance Act 1948 could also be charged, unlike accommodation under section 21 in the circumstances discussed. No deduction was therefore made for anticipated free care.
5. Supervision and additional costs. Hands-on nursing was unnecessary, but weekly nursing supervision was reasonable. Three hours per week at £17.50 per hour was allowed. Monthly meetings of the whole care team were unnecessary. Additional care costs were calculated using the claimant’s 58-week approach with specified allowances.
6. The court assessed future-care damages in accordance with the Appendix and adjourned the proceedings to enable advice on the relative merits of a lump sum and periodical payments.