Loughlin v Singh & Ors

A person’s capacity to conduct litigation or manage property and affairs is decision-specific and must be assessed by applying the statutory test to the individual and the relevant circumstances. High intelligence or the ability to make isolated sensible decisions does not establish capacity where executive dysfunction prevents the person from recognising problems, weighing consequences or seeking and acting on advice. Vulnerability and impulsive conduct may be relevant, although an unwise decision alone is insufficient.

Where professional care has provided substantial benefit but fell materially below a reasonable standard, the appropriate response may be a proportionate reduction in the recoverable charges rather than total disallowance. Provisional damages are appropriate where a non-negligible risk of serious deterioration could otherwise leave the claimant under-compensated.

The claimant, who sustained a severe traumatic brain injury in a road accident as a child, brought a claim for assessment of damages. The trial concerned capacity to conduct litigation and manage property and affairs, past and future professional care and case management, gratuitous care, loss of earnings, general damages, provisional damages, and deputy and Court of Protection costs.

The parties relied on conflicting expert and lay evidence. The central questions were whether the claimant had displaced the statutory presumption of capacity, what level of continuing support was reasonably required, whether past care charges should be reduced because of shortcomings in delivery, and whether the risk of uncontrollable post-traumatic epilepsy justified provisional damages.

1. Capacity. The claimant lacked capacity to conduct litigation and manage his property and affairs. The court applied Mental Capacity Act 2005, sections 1–3. The statutory presumption of capacity remained important, and an unwise decision did not itself establish incapacity. However, the assessment had to focus on the claimant and the particular context, including control of a substantial fund. His executive dysfunction, vulnerability, inability reliably to recognise when advice was needed, and inability reliably to weigh and act on advice displaced the presumption.
2. Past professional care. The care and case management had failed, in an important respect, to address the claimant’s chronic sleep disorder with a sufficiently specific and effective regime. Total disallowance of the charges would be disproportionate because the services had been necessary and beneficial. A broad assessment was appropriate, and the charges were reduced by 20 per cent.
3. Future care. Continued support was reasonably required, but the evidence did not justify eight hours’ daily care and a sleep-in carer indefinitely. Four hours’ daily support, focused on the morning, together with overnight emergency back-up, was appropriate. The reduction was to be phased in over four years.
4. Provisional damages. Under section 32A of the Senior Courts Act 1981, the risk of uncontrollable epilepsy was above negligible. A final award could under-compensate the claimant if that risk materialised, so provisional damages were ordered.
5. The claimant was awarded £60,000 for past gratuitous care, £639,000 for future loss of earnings, and £120,000 for pain and suffering, with the parties to draw up an appropriate dispositive order.