Harman v East Kent Hospitals NHS Foundation Trust

Where a claimant has a statutory entitlement to care or accommodation from a public authority, the claimant may elect to recover damages from the tortfeasor and fund private provision. The existence, continuation or practical availability of public funding does not defeat that choice. The court must prevent double recovery, but an indemnity or other safeguard addresses that risk without displacing the claimant’s right of recovery.

In determining reasonable compensation for catastrophic injury, the court must assess the appropriate care regime on the particular facts. Genuine and sustained family wishes may be relevant where they coincide with the regime that is reasonable for the claimant, but damages compensate the claimant rather than accommodate family preferences alone.

The claimant suffered severe autism and significant cognitive impairment following negligent failure to diagnose and treat critically low blood sugar levels shortly after his birth. Liability was admitted in July 2013, but the parties remained in dispute about the future care regime and associated financial consequences.

The principal issues were whether the cost of the claimant’s specialist placement at Prior’s Court should be deducted because the local education authority was funding it, the appropriate frequency of the claimant’s return home, whether waking-night care was required, and whether post-25 care should be residential or privately provided at home.

1. Public funding and damages. The claimant was entitled to elect to pursue the tortfeasor for the cost of Prior’s Court rather than rely on the statutory obligations of the local education authority. The existence of current funding, and the likelihood that funding would continue if claimed, did not alter that conclusion. Peters v East Midlands Strategic Health Authority [2010] QB 48 confirmed the claimant’s right to choose damages and rejected reintroducing mitigation of loss through an assessment of whether that choice was reasonable.
2. The reasoning in Sowden v Lodge [2004] EWCA Civ 1370 and Crofton v NHSLA [2007] EWCA Civ 71 did not require a deduction. Those cases proceeded on the basis that local-authority payments would in fact be received, whereas the claimant’s parents had made a genuine and settled election to use private funding. Double recovery remained impermissible, and an appropriately worded deputy’s indemnity could provide the necessary safeguard.
3. The claimant was not entitled to a sum for potential appeals concerning public funding. The contingency figure for that purpose was to be deducted from the otherwise agreed lump sum.
4. The evidence supported continued home contact at approximately the existing level. Waking-night care was unnecessary; sleeping care was appropriate.
5. Post-25 care should reasonably be provided through a privately funded home regime rather than specialist residential care. Family wishes were not determinative merely because they were genuine. In this case, however, the parents’ sustained commitment coincided with expert evidence that their choice would be likely to succeed and was determinative in the particular circumstances. Their contribution was expected to end when both reached 70.

The parties were to seek agreement on the financial consequences. Any unresolved matters could return to the court for further argument.