C v Dixon

In assessing future care damages, the court must determine what care is reasonably necessary to meet the claimant’s likely needs. The existing care regime is relevant evidence but is not determinative. The assessment must balance protection from real risks, including risks that are small but potentially catastrophic, with independence, dignity and choice. Permanent cognitive and behavioural disabilities may justify continuous support even where the claimant can learn particular tasks or function relatively well in structured and familiar surroundings. Future care based on a possible relationship must have a genuine evidential foundation and should not rest on pure speculation. Where gratuitous care is allowed, the conventional discount must be applied.

The claimant suffered severe permanent brain injuries in a road traffic accident. Liability was admitted, and most heads of damage had been agreed. The principal issue was the reasonable future provision for care and case management, including the level of direct and telephone support, overnight care, support during social activities, gratuitous care by the claimant’s partner, holiday cover and case management costs.

The parties advanced substantially different care packages. The court therefore had to assess the claimant’s continuing disabilities, prospects of functional improvement, the likely duration of his relationship, and the reasonable costs of meeting his future needs.

1. Assessment of need. The court’s task was to assess what was reasonably necessary to meet the claimant’s likely future care needs, rather than merely deciding whether the existing regime fell within the range of reasonable options. The existing regime and its established support team remained relevant evidence.
2. Risk and independence. The claimant’s permanent frontal-lobe injury caused continuing cognitive impairment and organic personality disorder. Although he could learn and perform certain tasks, he could not be expected to regulate his behaviour consistently without prompts, particularly when confronted with the unfamiliar or unexpected. The court had to balance risk management against independence, choice, dignity and respect. Real risks had to be protected against even where their occurrence was relatively small and the consequences potentially catastrophic.
3. Continuing support. Functional improvement and the reintroduction of structured activities would have only a limited effect on the claimant’s needs. He would require 24-hour support from some source. While living with his partner, this included direct support and telephone support, assessed overall at 11 hours of daily support-worker provision, including 2½ hours costed as telephone support. If living alone, the package included 24-hour support with sleep-in care, with a 10-hour night duty for costing purposes.
4. Future relationships. The court assessed future relationship scenarios in years rather than percentages. The possibility of a new long-term cohabiting partner was too speculative to include. The current relationship was assessed as likely to continue for 10 years, after which the claimant was likely to live alone.
5. Costs and ancillary provision. The court allowed a reduced sum for gratuitous care by the partner, applying the conventional 25 per cent discount. It allowed limited occupational therapy relating to the claimant’s role as a father, but rejected separate childcare training for support workers. The parties were directed to translate the rulings into a periodical payments order for approval, with further submissions if necessary.