Taylor v Chesworth & Anor

In assessing future care, the court must first determine the claimant’s reasonable needs and then assess whether the proposed course is reasonable in light of those needs. The question is not what a judge objectively regards as being in the claimant’s best interests.

Care may properly be assessed by reference to fluctuating levels of need. Where serious behavioural risks arise during crises, substantial periods of 24-hour care may be reasonable even though permanent 24-hour care is not. Home-based care may be preferred to residential care, with residential treatment allowed for as a contingency or treatment of last resort.

Where future needs fluctuate, a combination of lump-sum damages and periodical payments may best meet the claimant’s needs.

The claimant suffered severe frontal-lobe brain injury in a road accident when aged 13. Liability had been resolved, and the court was required to assess damages, principally for future care, case management, therapy and accommodation.

The parties disputed the level and duration of care, the need for residential treatment, the appropriate accommodation, and whether damages should be paid wholly by lump sum or partly by periodical payments. The claimant’s needs were affected by behavioural disturbance, alcohol use, relationship difficulties and recurrent crises.

1. Reasonable needs. The court adopted the approach in Sowden v Lodge [2004] EWCA Civ 1370. It first determined the nature and extent of the claimant’s needs and then considered whether the proposed care package was reasonable having regard to those needs. The court was not to substitute an objective view of the claimant’s best interests for a reasonable choice made on the claimant’s behalf.
2. Care and risk. The claimant’s severe brain injury, impaired impulse control, aggression, sexual disinhibition, alcohol consumption and recurrent relationship crises created a real risk of harm. Twenty-four-hour independent support was presently necessary and would also be required for substantial future periods of crisis. Permanent 24-hour care was not reasonable, but provision below eight hours a day was insufficient. The award was therefore structured by reference to periods of 24-hour, 16-hour and eight-hour care.
3. Residential treatment. Home-based care was the more reasonable primary provision. The claimant’s previous residential rehabilitation showed that inpatient treatment should be treated as a last resort rather than the preferred arrangement. Nevertheless, a contingency allowance for inpatient care was reasonable, assessed at two weeks each year.
4. Other needs. Continuing case management, neuropsychological treatment and appropriate accommodation were reasonable. A larger and more substantial property was justified because overnight support workers required sufficient space, privacy and noise reduction.
5. Form of award. The court considered the statutory factors governing periodical payments, the claimant’s preference, the fluctuating nature of care needs, indexation uncertainty and the Motor Insurers’ Bureau’s funding arrangements. The appropriate award was partly a lump sum and partly periodical payments. The periodical payments covered the underlying eight-hour care provision, case management, professional therapies and continuing receivership costs. The remaining items were awarded as a lump sum.
6. The agreed heads of claim were approved. The total lump-sum award was £2,461,748, with the periodical payments reduced by 25 per cent for contributory negligence.