Peters v East Midlands Strategic Health Authority & Ors

Damages awarded for personal injury are disregarded in full when assessing a claimant’s capital for liability to contribute towards residential care. This includes damages for care, earnings and other consequential losses, not merely general damages. Income or payments derived from a personal injury award administered by the Court of Protection are likewise disregarded at the statutory threshold.

Where public provision may meet a claimant’s reasonable care needs, the defendants bear the burden of proving that it will do so for life. A claimant may reasonably choose privately funded care where public provision creates material uncertainty about continuity or quality. That choice is not a failure to mitigate loss, and the claimant may recover the reasonable cost from the tortfeasor provided double recovery is avoided.

The claimant suffered severe congenital rubella syndrome following the admitted negligent failure to vaccinate her mother before pregnancy. Liability had been established in February 2000, and the hearing concerned quantum.

The principal dispute concerned the cost of past and future residential care. The defendants argued that Nottingham City Council had a statutory duty to provide care, so the claimant suffered no recoverable care loss. The Local Authority argued that the claimant’s damages could be taken into account in assessing her contribution towards care costs. The claimant sought full compensation to secure suitable care independently of public funding.

1. Statutory assessment of care contributions. The whole award of damages for personal injury had to be disregarded when assessing the claimant’s capital under the National Assistance Act 1948 and the relevant regulations. Damages for lost earnings and care costs flowed from the injury just as damages for pain, suffering and loss of amenity did. The Local Authority therefore could not recover past or future accommodation costs from the claimant’s damages.
2. Income derived from damages administered by the Court of Protection was treated as capital for the relevant threshold assessment and was also disregarded. The court followed the conclusion in Crofton v National Health Service Litigation Authority [2007] 1 WLR 923. The reasoning in Firth v Ackroyd [2001] PIQR Q27 was compelling and supported the broader construction.
3. Future care. The claimant was entitled to damages for her reasonable future care needs. If statutory provision would meet those needs, and would probably continue to do so, no private-care loss would arise. The defendants bore the burden of proving that suitable State-funded care would be available throughout the claimant’s life. They failed to prove that the Local Authority would provide care of the quality and continuity presently available.
4. It was reasonable for the claimant to choose to be self-funding rather than depend on State provision. The defendants could not require her to rely on public resources merely to reduce their liability. The issue was who should pay the established cost of care, rather than mitigation of an avoidable loss.
5. The claimant could not recover twice for the same care. No undertaking was required because the evidence showed that the claimant would rely on private funding instead of statutory funding. The defendants were liable for the recoverable past care sum of £1,571.64 and future care costs of £3,893,766, subject to final order.

First-instance judgment. Liability had previously been admitted and judgment entered against the defendants in February 2000. This hearing determined quantum and declarations concerning care funding.