Huntley v Simmonds

In assessing damages for serious brain injury, future care must reflect both rehabilitation and the claimant’s actual safety needs. Intensive support may be justified for a limited period to maximise rehabilitation, without establishing a need for permanent 24-hour supervision. Thereafter, the award should reflect the reasonably necessary level of care, while allowing for unpredictable fluctuations and the possibility that care will not always be accepted or provided.

A periodical payment order may properly cover a minimum continuing care requirement, with a lump sum for uncertain additional needs. Accommodation loss must be confined to the additional cost attributable to the injury. Unsupported claims may nevertheless be assessed conservatively where the existence of some loss is established.

The defendant admitted liability for a road traffic accident in which the claimant suffered permanent traumatic brain injury, frontal lobe dysexecutive syndrome, behavioural problems and physical disabilities. The assessment concerned pain and suffering, past and future care, case management, accommodation, transport, earnings and other consequential losses.

The central disputes were the appropriate level and duration of care, whether care should be compensated by a periodical payment order, and the extent to which claimed losses were attributable to the accident rather than expenses the claimant would have incurred in any event.

1. Future rehabilitation and care. The court rejected the claim that the claimant required permanent seven-day, 24-hour care to protect himself or others. The evidence showed some risk, but not a need for constant guarding. The appropriate approach was to distinguish rehabilitative support from long-term care required to enable the claimant to function with his disabilities.
2. For three years after trial, intensive support equivalent to 84 hours per week was reasonable. The purpose was to maximise the prospect of improving independence, behaviour and purposeful activity. The regime could be arranged flexibly, including support at weekends or at night, provided the overall hours were not exceeded.
3. After that period, the claimant was likely to require at least six hours’ care per day. Because the level might fluctuate, an additional allowance was made, producing an assessment based on eight hours per day after accounting for the risks that support might be refused, that the claimant might live with a partner, or that he might be imprisoned or detained under the Mental Health Act.
4. The court applied the approach in Sowden v Lodge, [2005] 1 WLR 2129. A periodical payment order was appropriate for the initial intensive period and the minimum later requirement. The uncertain additional later care was compensated by lump sum.
5. Past care was allowed at the reasonable planned level, but the additional cost of night sleepers was disallowed. Hospital visits by relatives were not compensable as care where they were ordinary visits arising from family affection rather than the provision of services not supplied by the hospital, applying Havenhand v Jeffrey and Evans v Pontypridd Roofing Ltd, [2001] EWCA Civ 1657.
6. Accommodation damages were limited to the additional cost attributable to the injury. The court awarded a conservative estimate despite the absence of detailed expert evidence. The future accommodation claim was assessed by reference to the additional space and location required, using a Roberts v Johnstone calculation.
7. The claim succeeded subject to the detailed findings. A periodical payment order was to be made for care and case management, with the remaining damages paid as a lump sum. Permission to appeal was refused.