Sklair v Haycock

In assessing damages for continuing care, the court must distinguish between the claimant’s need for care and the person or body who would have paid for it. Care supplied out of familial love and affection is not valued as an avoided benefit. Expenditure that family members would otherwise have incurred on the claimant’s behalf may be deducted from the net financial loss. A claimant may recover the reasonable cost of privately arranged care even where public-authority care might be available. The relevant question is whether the care chosen and claimed for is reasonable, not whether another arrangement would be in the claimant’s best interests.

The claimant suffered serious physical and psychological injury when struck by the defendant’s car. Liability had previously been apportioned 90:10 in the claimant’s favour. The hearing concerned the assessment of damages, particularly future care and accommodation.

The claimant sought compensation for a privately arranged 24-hour care package. The defendant argued that damages should reflect the lower level of care which the claimant would have needed after his elderly father could no longer care for him, and that suitable public or supported accommodation should be used instead. The central issues were the reasonable extent and cost of the proposed care, and the proper credit for care or expenditure available in the counterfactual scenario.

1. The claimant required trained attendance for 24 hours a day, with a sleep-in carer at night. Suitable supported housing had not been established, and the claimant was not required to rely on a local authority.
2. Following Peters v East Midlands SHA [2009] 3 WLR 737, the claimant could pursue the tortfeasor rather than rely on public-authority care. Applying Sowden v Lodge [2005] 1 WLR 2129, the issue was whether the chosen care package was reasonable, not whether another arrangement would be in the claimant’s best interests.
3. Under the compensatory principle in Hodgson v Trapp [1989] 1 AC 807, avoided expenditure was taken into account. Gratuitous care from family members was not valued as an avoided benefit, but expenditure family members would otherwise have incurred on the claimant’s behalf was deducted. Freeman v Lockett [2006] EWHC 102 was distinguished.
4. Past care was assessed at £556,423.22. The future multiplier was reduced to 18, £60,000 was deducted for likely counterfactual expenditure, and periodical payments were refused under section 2(1) of the Damages Act 1996.