Farrugia v Burtenshaw & Ors

Damages for future care must meet all reasonable needs, including foreseeable exigencies, while remaining proportionate. The court must assess the care reasonably required, rather than infer necessity merely because care was provided in a particular way. A periodical payments order is appropriate where it best meets the claimant’s needs and continuity of payment is reasonably secure. Variable periodical payments may be ordered where there is a real risk of serious deterioration that would materially increase care needs. The risk need not involve the first onset of a condition; worsening an existing condition may suffice.

The claimant suffered catastrophic traumatic brain and other injuries in a road traffic accident. Liability had been resolved in his favour, leaving quantum for determination. The principal dispute concerned the reasonable level of future daytime and night-time care, case-management costs, periodical payments, and whether payments should be variable to reflect the risk of uncontrolled epilepsy.

The court also considered whether payments were reasonably secure despite the defendant insurer’s anticipated insolvency, and how enhanced care during the final two years of the claimant’s life should be funded.

1. Future care. The court applied the approach in Sowden v Lodge [2005] 1 WLR 2129. Compensation must meet all reasonable needs, including foreseeable exigencies, but not speculative or unlikely possibilities. The court must assess the care regime claimed by reference to the evidence and proportionality.
2. The fact that two carers were present and assisted did not establish that two carers were reasonably required. Nevertheless, the court found that the claimant’s unpredictable daytime routine, the variable timing of bed rest, the consequences of seizures, and the practical difficulty of obtaining immediate assistance justified two carers during specified periods. At night, the real risks of bowel movements before the day team arrived and epileptic seizures justified one waking and one sleeping carer, with additional waking care for limited periods.
3. Periodical payments. Under section 2 of the Damages Act 1996, continuity of payment was reasonably secure. The claimant was eligible for protection under the Financial Services Compensation Scheme, including through COMP 5.4.7, if the insurer defaulted. Applying Thompstone v Tameside [2008] EWCA Civ 5, the court held that periodical payments best met the claimant’s needs and ordered them for future care, case management, and Court of Protection and deputy costs.
4. Variable payments. Under section 32A(1) of the Senior Court Act 1981 and the Damages (Variation of Periodical Payments) Order 2005, the court could provide for a serious future deterioration. The risk that existing epilepsy would become uncontrolled was sufficient. The order therefore permitted variation if uncontrolled epilepsy developed, including an application by personal representatives within one year of death.
5. The final two years’ enhanced care was funded by stepped-up periodical payments, rather than a capitalised sum, beginning on 15 December 2040. The parties were directed to complete the calculations and agree the form of order before a formal approval hearing.