Smith v East and North Hertfordshire Hospitals NHS Trust

In assessing damages for catastrophic personal injury, gratuitous care is ordinarily valued by reference to commercial care costs, subject to an appropriate deduction for its gratuitous nature. The court must assess the treatment chosen by or for the claimant and ask whether it is reasonable in the circumstances. It must not substitute an objective assessment of what would be in the claimant’s best interests. Where home care is reasonably chosen, the defendant is liable for its reasonable cost even if institutional care would be cheaper. Accommodation and other consequential losses must be assessed by reference to the claimant’s actual needs, allowing only losses caused by the injury and making appropriate deductions for expenditure or benefits that would have arisen in any event.

The claimant suffered severe permanent brain damage following negligent treatment shortly after birth. Liability was admitted, and the trial concerned the quantum of damages, including general damages, past and future care, accommodation, equipment, travel, therapies, lost earnings and pension, education and other consequential losses.

The principal dispute concerned whether the claimant should be funded for lifelong care at home or in a specialist residential setting, and how the reasonable cost of the selected regime should be calculated. The court also determined the appropriate valuation of gratuitous care and the recoverability of numerous individual heads of loss.

1. General damages. The claimant fell within the very severe brain damage category of the JSB Guidelines. Taking account of her profound communication and learning difficulties, dependence, limited insight, long life expectancy, moderate physical limitations and other features, general damages were assessed at £210,000, with agreed interest of £861.
2. Past gratuitous care. The appropriate approach was to value the care by reference to commercial rates and then make a deduction reflecting its gratuitous character. A loss-of-earnings approach was not appropriate on these facts. Applying Evans v Pontypridd Roofing Ltd (2001) EWCA 1657, a deduction of 25% produced a net award of £62,248.28.
3. Choice of future care. Following the principles in Sowden v Lodge and Crookdake v Drury [2005] 1 WLR 2129, the question was whether the home-care regime chosen and claimed for was reasonable, rather than whether residential care was objectively preferable or in the claimant’s best interests. The parents’ preference for continuing home care, supported by the evidence, was reasonable. The defendant therefore had to meet its reasonable cost.
4. The claimant was likely to require waking night care for the future. The court accepted the proposed care rates, 59 weeks per year and case-management rate. Future care and case-management damages were to be paid by periodical payments indexed to the appropriate ASHE 6115 measure.
5. Accommodation damages were calculated on the Roberts v Johnstone (1989) 1 QB 878 basis. The court allowed the reasonable cost of the adapted property and associated works, but rejected expenditure not sufficiently linked to the claimant’s disability. A hydrotherapy pool was not reasonably necessary because swimming with appropriate assistance remained feasible.
6. Future earnings were assessed using average net earnings for a full-time female primary-school teacher, with a 40% deduction for working costs, career breaks and overlap between heads of loss, reflecting Croke v Wiseman (1982) 1 WLR 71.
7. There would be judgment for the claimant. The final form of order was to be settled after representations by the parties.