Wakeling v McDonagh & Anor

Contributory negligence requires proof that the claimant was at fault, that the fault caused the injury, and that a reduction would be just and equitable. The burden rests on the defendant. A breach of the Highway Code is relevant but is not determinative of negligence. In assessing future care and treatment, the court must consider whether the claimant’s chosen provision is reasonable, rather than merely whether a cheaper arrangement would permit survival. Reasonable access to a severely disabled claimant’s limited opportunities for independence, activity and pleasure may justify substantial care and domestic hydrotherapy facilities, provided the award is not extravagant.

The claimant suffered catastrophic brain and physical injuries when struck by a vehicle driven negligently by the first defendant. Primary liability was admitted and the Motor Insurers’ Bureau assumed responsibility because the vehicle was uninsured. Agreed damages had already been approved, leaving issues concerning contributory negligence, future care and case management, and hydrotherapy.

The court had to decide whether the claimant had failed to take reasonable precautions before cycling into the road, whether the proposed care regime was reasonable, and whether hydrotherapy should be provided through a public facility or a pool at the claimant’s home.

1. Contributory negligence. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the defendant had to prove fault, causation and that a reduction would be just and equitable. The evidence did not establish that the claimant had failed adequately to check the road before emerging from behind the van. His probable misjudgment of the approaching vehicle’s speed did not discharge the defendant’s burden. The claim for contributory negligence therefore failed.
2. The relevant Highway Code provision could apply to cyclists as well as pedestrians, but any breach would be only one circumstance relevant to negligence. It created no presumption and was not determinative. The court also treated the absence of evidence from the driver as highlighting the weakness of the evidence available to establish contributory negligence.
3. Care and case management. The governing approach, restated in [1999] AC 345 and applied in later Court of Appeal authority, was that the question was whether the claimant’s chosen treatment and care were reasonable, not whether an alternative was cheaper or merely sufficient for survival. The proposed two-carer daytime regime and waking and sleeping night provision were reasonable in light of the claimant’s need for transfers, repositioning, continence care, protection of his injured arm and access to a meaningful degree of independence.
4. Hydrotherapy. A home pool was not an extravagant luxury. Hydrotherapy was both a therapeutic need and a legitimate pleasure. In view of the claimant’s injuries, the benefits of regular warm-water treatment and the practical limitations of public facilities, the proposed home facility was reasonable.
5. The court adopted a 58-week annual basis for the care calculations and made broad assessments of disputed care and case-management rates. The issue of statutory funding was adjourned until the likely availability and amount of funding became clearer. The claim succeeded on the principal outstanding issues, with some consequential matters reserved for further submissions.