AC v Farooq & Anor

Damages for future care must reflect the claimant’s reasonable needs arising from the injury and the reasonable provision chosen to meet them. The court must assess, on the balance of probabilities, the claimant’s overall impairment and the likelihood that proposed care will actually be used. Uncertainty in measuring cognitive impairment does not prevent recovery where genuine disability is established by the evidence.

Where a claimant is permanently incapable of independent living, daily supervision, prompting and structured support may be recoverable even though constant physical attendance is unnecessary. Care should not be assessed solely by counting minutes of physical assistance. Equally, excessive care which promotes dependence or reinforces illness behaviour should not be awarded. The likely contribution of family carers, the availability of commercial support, future improvement and contingencies must be evaluated together.

The claimant, a protected party who had suffered a severe traumatic brain injury in a road accident, claimed damages for personal injuries and consequential losses. Liability was admitted, and the parties had agreed a lump sum for all heads of loss except future care and case management.

The central issues were the extent of the claimant’s genuine physical, cognitive and behavioural disability; whether improvement was likely; whether professional care would be accepted; the likely continuing role of her husband; and the appropriate level and cost of future care and case management.

1. Assessment of need. The correct question was what was required to meet the claimant’s reasonable needs. Where there were several reasonable options, the court had first to consider whether the provision claimed was reasonable, applying Rialas v Mitchell and Sowden v Lodge.
2. The claimant’s presentation to medico-legal experts was exaggerated, but there was no pleaded case of deliberate malingering for financial gain. The court therefore assessed the genuine disability as a whole. It was impossible to separate organic from non-organic impairment, and reasonable needs flowing from both were recoverable, following Telles v South West SHA.
3. The claimant had permanent frontal-lobe injury, significant memory and executive problems, and was incapable of independent living. She would always require supervision, prompting and an externally structured programme of support. That need included support and enabling, not merely direct physical care or companionship.
4. The evidence did not establish a need for constant daytime attendance. The claimant could safely be left for short periods, but she should not live alone and required someone available overnight on a sleep-in basis, with contingency provision for waking-night care.
5. The court rejected both an assumption that outside care would always be refused and an approach based solely on stopwatch calculations of physical assistance. Commercial agency support was likely to be accepted gradually, despite staff turnover and gaps. The court also took account of the risk that excessive care could promote dependence.
6. Applying the approach in Evans v Pontypridd Roofing Ltd, the court assessed 10 hours’ daily support. It allowed for three progressive scenarios and awarded, in present-day values, £55,000 annually for five years, £90,000 annually for the following five years, and £99,550 annually thereafter. Case management was assessed at £13,068 annually in the principal commercial-support scenario.
7. The final form of the periodical payments order was deferred for further submissions. Periodical payments were provisionally considered appropriate.