Sowden v Lodge

These are appeals from the High Court, in one case by a claimant (Louise Sowden (a patient) v Joanne Lodge: judgment of Andrew Smith J dated 25 March 2003) and in the other by a defendant (David Drury v Philip Crookdake (a patient): judgment of Owen J dated 31 July 2003), against the amount of damages awarded in personal injury cases. The appeals have been heard together because they are thought to give rise to similar issues of general importance.

I have to say, however, that as the cases have developed and concessions have been made, the resolution of the appeals does not involve consideration of some of the points of law of general importance which may have been contemplated. Both cases turn primarily on the application of the law to the facts of the case though an issue as to the test to be applied by the judge when considering the adequacy of the proposed provision for the claimant does arise in the case of Sowden.

The general area of the law under consideration is the effect upon the liability of tortfeasors in personal injury cases of the duty upon local authorities under Section 21 of the National Assistance Act 1948 (“the 1948 Act”) (as now enacted and as interpreted by the Courts), directions given under it and regulations limiting the right of the local authority to recover the cost of the provision from the injured person. It is not disputed that:

a)

a judge is entitled to hold on appropriate evidence that the statutory provision for care and accommodation meets the claimant’s reasonable requirements. In such circumstances the tortfeasor may not be required to pay for care and accommodation.

b)

statutory provision for care and accommodation, augmented by payments on behalf of the tortfeasor for further care, may, on appropriate evidence, meet the reasonable requirements of a claimant.

c)

if, in the present cases, the local authority provide under Section 21 of the 1948 Act care and accommodation they cannot recover its cost from the claimants’ damages. The extension of that principle has had the effect of increasing the potential burden on local authorities under Section 21.

(I add that it is strongly argued in McGregor on Damages (17th Edition (2003), paragraphs 35-205 to 209) that the law should be amended to ensure that the tortfeasor pays.)

Section 21(1) of the 1948 Act, as amended, provides, insofar as is material:

“(1)

Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent he may direct shall, make arrangements for providing –

(a)

residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.”

The words illness and disability were substituted by the National Health Service and Community Care Act 1990 (“the 1990 Act”), Section 42(1).

Section 47(1) of the 1990 Act provides:

“… Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services [which includes services to be provided under Section 21 of the 1948 Act] may be in need of any such services, the authority –

(a)

shall carry out an assessment of his needs for those services; and

(b)

having regard to the results of that assessment shall then decide whether his needs call for the provision of them by any such services”.

Injured persons with a claim against tortfeasors are not excluded from the operation of this duty.

Section 22 of the 1948 Act provides, insofar as it is material:

“(1)

Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this section.

…

(5)

in assessing as aforesaid a person’s ability to pay, a local authority shall give effect to regulations made by the Secretary of State for the purposes of this sub-section.”

Section 26 provides that, in specified circumstances, arrangements under Section 21 may include arrangements made with a voluntary organisation or with any other person who is not a local authority.

It is agreed that the effect of the National Assistance (Assessment of Resources) Regulations 1992, National Assistance (Assessment of Resources) (Amendment) Regulations 1998 and the Income Support (General) Regulations 1987 is that personal injury trusts and compensation for personal injuries which is administered by the court is to be disregarded for the purposes of Section 22 of the 1948 Act. Income from capital administered by the court is to be treated as capital and also to be disregarded (Bell v Todd & Anr [2002] LR Med 12). It is not disputed that the payment of damages in the present cases will bring the sums awarded within those provisions so that the cost of accommodation and care provided by a local authority under Section 21 would not be recoverable, under Section 22, out of damages awarded. The Court has been told, that even when a claimant is not under a disability, only if the claimant chooses to take damages as a lump sum and not to place it in a personal injury trust, is the sum not to be disregarded. The choice is that of the claimant.

The relevant directions issued by the Secretary of State under Section 21(1) of the 1948 Act are contained in the National Assistance Act 1948 (Choice of Accommodation) Directions 1992, as amended (“the 1992 Directions”). They were cited by Owen J in Crookdake but did not feature prominently in Sowden. Owen J cited paragraphs 2,3 and 4 of the directions, though paragraph 4 was revoked by the National Assistance Act 1948 (Choice of Accommodation) (Amendment) (England) Directions 2001. The case did not turn on that paragraph. The 1992 directions provided, insofar as it is material:

2.

Local authorities to provide preferred accommodation.

Where a local authority have assessed a person under section 47 of the National Health Service and Community Care Act 1990 (Assessment) and have decided that accommodation should be provided pursuant to section 21 of the National Assistance Act 1948 (Provision of Residential Accommodation) the local authority shall, subject to paragraph 3 of these directions, make arrangements for accommodation pursuant to section 21 for that person at the place of his choice within England and Wales (in these directions called “Preferred Accommodation”) if he has indicated that he wishes to be accommodated in preferred accommodation.

3.

Conditions for provision of preferred accommodation

Subject to paragraph 4 of these directions the local authority shall only be required to make or continue to make arrangements for a person to be accommodated in his preferred accommodation if ;

5.

the preferred accommodation appears to the authority to be suitable in relation to his needs as assessed by them;

(b)

the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;

5.

the preferred accommodation is available;

(d)

the persons in charge of the preferred accommodation provided it subject to the authority’s usual terms and conditions, having regard to the nature of the accommodation, for providing the accommodation for such a person under Part III of the National Assistance Act 1948.

The directions included a section headed “GUIDANCE”. I cite the paragraphs cited by Owen J:

5.

If the individual concerned expresses a preference for particular accommodation (“Preferred Accommodation”) within the UK, the authority must arrange for care in that accommodation, provided

•

The accommodation is suitable in relation to the individual’s assessed needs

•

To do so would not cost the authority more than it would usually expect to pay for accommodation for someone with the individual’s assessed needs

•

The accommodation is available

•

The person in charge of the accommodation is willing to provide accommodation subject to the authority’s usual terms and conditions for such accommodation.

6.

If a resident requests it, the authority must also arrange for care in accommodation more expensive than it would normally fund, provided there is a third party willing and able to pay the difference between the cost the authority would usually expect to pay and the actual cost of the accommodation.

7.

Preferred accommodation

As with all aspects of service provision, there should be a general presumption in favour of people being able to exercise choice of the service they receive. The limitations on authorities’ legal obligation to provide preferred accommodation set out in the direction are not intended to deny people reasonable freedom of choice, but simply to ensure that authorities are able to fulfil their obligations for the quality of service provided and for value for money. The terms of the direction are explained more fully below. Where for any reason an authority decides not to arrange a place for someone in their preferred accommodation it must have a clear and reasonable justification for that decision which relates to the criteria of the direction.

Suitability for accommodation

7.1

suitability will depend on the authority’s assessment of individual need. Each case must be considered on its merits.

7.2

Consequently accommodation will not necessarily be suitable simply because it satisfies registration standards. On the other hand accommodation will not necessarily be unsuitable simply because it fails to conform with the authority’s preferred model of provision, or meet the letter of a standard service specification.

….

7.9

Conditions

In order to ensure they are able to exercise proper control over their funds authorities need to be able to impose certain technical conditions for example in relation to payment regimes, review, access, monitoring, audit, record keeping, information sharing, insurance, sub-contracting etc.”

The guidance was updated as from September 2003, that is, after the judgments in both actions had been given.

In R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, this court considered the extent of the duties of the Secretary of State for Health under the National Health Service Act 1977 and the duties of local authorities under Section 21 of the 1948 Act. It was held that nursing services could be provided in connection with accommodation provided under Section 21 to a person in need of care and attention and, in general, nursing services could be provided under Section 21 if they were merely incidental or ancillary to the provision of accommodation under the section and of a nature which it could be expected that a local authority whose primary responsibility was to provide social services could be expected to provide (Lord Woolf CJ, giving the judgment of the Court, at paragraph 30). The nature and extent of the duties of the local authority under Section 21 of the 1948 Act were also considered in this court in Wahid v Mayor and Burgesses of the London Borough of TowerHamlets [2002] EWCA Civ. 287, see particularly on this point the judgment of Hale LJ.

The basis on which damages are awarded at common law is not seriously in issue. Its history was traced by Stephenson LJ in Rialis v Mitchell (unreported, 6 July 1984), beginning with the statement of Lord Blackburn in Livingstone v Rawyards Coal Company [1880] 5 Appeal Cases 25, at page 39:

“Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation or damages you should as nearly as possible get that sum of money which will put the party that has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation”.

The relevance of Rialis is that the issue was whether the tortfeasor was required to pay for a twelve year old boy to be cared for at home or whether he should live in an institution. That is a question similar to those in the present cases. On the facts of that case, the cost of caring for him in an institution was lower. Stephenson LJ stated, at page 25, that “what has to be first considered by the court is not whether other treatment is reasonable but whether the treatment chosen and claimed for is reasonable”. O’Connor LJ stated, at page 16:

“There may well be cases in which it would be right to conclude that it is unreasonable for a plaintiff to insist on being cared for at home but I am quite satisfied that this is not such a case and once it is concluded that it is reasonable for the infant plaintiff to remain at home then I can find no acceptable ground for saying that the defendant should not pay the reasonable cost of caring for him at home but pay only a lesser sum which would be appropriate only if it was unreasonable for him to live at home and reasonable for him to be in an institution”.

Sir Denys Buckley agreed with both judgments and added a postscript as to the criteria by which reasonableness should be assessed.

The general principle was affirmed in Wells v Wells [1999] 1 AC 345 where the main issue was as to the net discount rate to be applied when calculating damages (Lord Lloyd of Berwick at page 363F, Lord Steyn at page 382H, Lord Clyde at page 390D, Lord Hope of Craighead at page 395E, Lord Hutton at page 403C).

In Hodgson v Trapp[1989] AC 807, Lord Bridge of Harwich, at page 819, warned against double recovery and it was held that statutory benefits received by way of attendance and mobility allowances ought to be deducted from the sum awarded because they were available to meet the cost of care and mitigated damages recoverable in respect of the cost of that care. I agree with Miss Gumbel that the decision was intended to address that specific problem. An earlier statutory regime had been more tolerant to claimants in this respect. It is, however, conceded on behalf of the claimants in these cases that, if the compensatory principle requires only accommodation and care provided by the local authority under Section 21 of the 1948 Act, damages cannot be awarded as if they were not so provided.

The present issue does not turn, subject to the point considered at paragraph 71 and following, upon an application of Section 2(4) of the Law Reform (Personal Injuries) Act 1948 (“the 1948 LR Act”) which provides that in an action for damages for personal injuries there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available in the National Health Service. In Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174, it was confirmed that the sub-section does not prevent a submission by a defendant that the claimant will probably not incur expenses because he will be unable to obtain outside the National Health Service the domestic and nursing help which the claimant requires. In the present cases, private arrangements are available and have been costed and, if the arrangements are reasonably required in accordance with the compensatory principle, the need to pay for them will arise.

The claimant appellant is Louise Sowden. On 24 September 1992, when 13 years old, she sustained a catastrophic head injury in a road accident. She sued, by the official solicitor as her litigation friend. A Receiver was appointed. On 18 February 1997, Smith J approved a settlement under which damages were to be assessed on the basis that the claimant was contributorily negligent to the extent of 50%. The issue of damages was heard by Andrew Smith J who gave a judgment on 25 March 2003.

The extent of the claimant’s injuries, fully described by Andrew Smith J, needs only to be summarised for present purposes. The claimant has very severe brain damage which has brought about cognitive, emotional and behavioural disabilities. She suffers from post-traumatic epilepsy.

Andrew Smith J cited extracts from two reports:

“In a report which is undated but was also made about the middle of 1998, Ms Roslyn Wilson, a speech and language therapist, wrote:

‘Louise’s linguistic skills are severely disrupted. She is unable to accurately process anything other than the most simple verbal instructions. Ability to understand very basic concepts as to shape and colour is affected. Reading comprehension is not accurate at the single word level and Louise is unable to write. She can communicate little other than very basic needs and desires. These problems coupled with marked distractibility and poor initiation have a devastating effect on Louise’s ability to interact with others.’”

Dr V Neumann reported in March 2000, following an examination in January 2000, that the claimant:

“…requires assistance or supervision for all aspects of personal care. Although able to walk for limited distances, she can only do so with support from two other people; this is because of her very poor balance and coordination. She has such severe problems with communication that, effectively, she is dependent upon others to ask her the right questions in the right way (so that they have yes/no or simple choice answers) if she is to have any opportunity to express her views or wishes.”

Having cited those and other reports, the judge stated:

“10.

Thus, the claimant is able to understand simple statements. She cannot speak, but she can indicate the responses “yes” or “no” to straightforward questions by looking up or down, and she can communicate by pointing. So, for example, she is able, if presented with alternatives, to choose the clothing that she wishes to wear, and whether she would prefer a bath or a shower.

11.

The claimant can finger-feed herself. She has also managed to hold a two-handled plastic cup or beaker, and can generally cope with food or thickened drinks. If she is to have unthickened drink, she needs to be supervised by a carer who knows her well and will prevent her taking too much into her mouth at once.

12.

The claimant can only walk short distances if supported by two adults. She has a powered wheelchair, which she can propel for herself with a joystick. More recently the claimant has been learning to operate various “environmental controls”, such as switches for lights, for the radio or for a hairdryer.

13.

The claimant is continent of faeces, but on most days is incontinent of urine.

14.

Dr Neumann considers that as a result of the accident the life expectation of the claimant has been reduced by some three to five years because of post-traumatic epilepsy. Her opinion is not disputed, and I accept it.”

The judge described the care of the claimant since the accident. After a prolonged period in hospital and at a rehabilitation unit, the claimant spent four years at a residential school, Holly Bank School, in Mirfield, West Yorkshire. In September 1998 she became a resident at a residential home in Mirfield known as Rooftops. It comprises three bungalows each of which has six residents. She is expected to have to move because Rooftops accommodates disabled young people aged up to 25 years. Since about 2000, the claimant has had no contact with her mother or sisters, with whom she lived before her accident, and has had little or no contact with her father for many years. The Holly Bank Trust has expressed willingness to house the claimant in a bungalow it is proposing to buy at Illingworth with the intention of converting it into a home for six residents. The offer is conditional upon Doncaster MBC funding the placement.

As to care, the judge heard evidence from Miss Brook, a care worker, Mr Barker, the claimant’s case manager and Ms A Bristow, state registered occupational therapist. Expert evidence was obtained on behalf of the defendant but was not called at the hearing. The judge expressed reservations about the evidence of Miss Brook and considered that Ms Bristow’s assessment “was much influenced by a strong preference for disabled people to have a private arrangement”.

The judge concluded that no connection had been shown between the claimant’s depression and anorexia and her living environment. He did not consider that the standard of care could properly be criticised. In relation to the claimant’s wishes about where she should live, the judge concluded:

“i)

The evidence about the claimant’s wishes is tenuous, and in deciding what arrangement would most benefit her, should not be given undue weight.

ii)

The claimant has never expressed a wish not to continue to live in a residential arrangement with other disabled people. On the contrary, when asked, she has indicated that she would be content to do so.

iii)

if she is to have a residential arrangement, the claimant has expressed a preference for living somewhere smaller and with fewer residents than Willow Court.

iv)

The claimant has on one occasion in the past expressed a preference not to have an independent arrangement, and this possibility has not been discussed with her as much as a residential arrangement has. However, when it has been mooted, she has usually indicated that she would be content with one.”

The judge noted his approval of the agreed level of damages for pain, suffering and loss of amenity (£190,000) and past losses (£83,066). Damages for future losses had been agreed arithmetically at £5,419,849. This was subject to the important proviso that the judge found “that they are to be assessed on the basis of a private arrangement financed by the claimant”. Some of the figures with respect to future losses have also been agreed or included “on the basis of a residential arrangement”, as ordered by the judge, and included a sum for augmented care, to which I will refer, of £1,238,540.

The issue was whether damages should be assessed on the basis of the cost of a private arrangement for the accommodation and care of the claimant or on the cost of what was described as a residential arrangement; living in sheltered accommodation with other people with disabilities. On behalf of the defendant, it was conceded that, if the finding was for a residential arrangement, the appropriate sum would need to be augmented, or “topped-up”, by further provision for care and attendance. At paragraph 46 of his judgment, the judge summarised the submission made on behalf of the claimant:

“It is submitted on her behalf that the claimant should be compensated so that she can live in her own home, carrying out activities that she wants to carry out in the way that she wants to carry them out, and that this would provide the most fulfilling life within the constraints necessarily resulting from her disability. Miss Gumbel [Counsel for the claimant] acknowledged, however, that an award of damages on this basis would only be justified if the claimant has demonstrated that she would not be in an equivalent position in residential care, and that this private arrangement would bring the claimant benefits that a residential arrangement would not.”

The judge agreed with the submission made on behalf of the defendant that “the crucial question is whether it is shown that the claimant’s best interests reasonably require a private arrangement”. The vulnerability of the claimant and uncertainties inherent in relying on local authority provision were stressed on her behalf. Concessions made on behalf of the defendant were summarised at paragraph 53 of the judgment:

“The defendant accepted that, if the claimant is to be cared for under a residential arrangement, she would need by way of additional support and care over that which the local authority would provide, a carer dedicated to looking after her for seven hours a day (or 49 hours per week), and also a second carer to provide further support for five hours on five days each week (25 hours per week); and that the assessment of damages should reflect this. (The defendant also accepted that provision should be made in the assessment of damages for the cost of transport for outings, for holidays and for a case manager to supervise the claimant’s care.) Mr Stewart [then counsel for the defendant] submitted that this additional support would ensure that the claimant has individual attention for much of the day and sufficient care to enable her to be taken on frequent outings with two people to help her.”

In answering the question he had posed, the judge set out, as it seems to me with great care, what were in the best interests of the claimant. The judge dealt with the existing standard of care at paragraph 32:

“I do not accept on the basis of this or other evidence that the claimant has not been properly looked after while she has been at Rooftops, still less that I should infer on this basis that the standard of care that the claimant would receive under a residential arrangement would be inadequate.”

In reaching his conclusion, the judge stated (paragraph 63) that he bore in mind that “damages are to be assessed on the basis that, under a residential arrangement, the claimant is to have the additional care for a significant part of the day”. He also noted that the claimant’s condition was not such that required “particularly skilful nursing or care of an especially high standard”. That statement was not in my view intended to minimise the effect of the injuries sustained, as found by the judge, but to underline that it was not primarily medical or nursing care which was required. Mr Hunter QC, for the defendant, described the requirement as for social or welfare care.

As to the future, the judge stated (paragraph 54) that “it would be too speculative to make any assumption about what accommodation would be provided by the local authority when the claimant has to leave Rooftops …” He concluded:

“What I can assume, and I do assume, is that the local authority would fulfil its duty under [the 1948 Act] and provide accommodation appropriate to the claimant’s needs, together with other support that falls within the extended statutory definition of accommodation ….”

The judge referred to the case of Coughlan.

The judge concluded (paragraph 72) that it was “in the interests of the claimant to have a residential arrangement”. He gave three reasons: first, the opportunity for a variety of company which a residential arrangement afforded, secondly, there was likely to be more space at a residential home than in a private bungalow and, thirdly, that the claimant has for 10 years lived in a residential arrangement and has not been discontented with her living arrangements.

Having reached that conclusion, the judge went on to consider the effect on an award of the fact that the claimant would receive only 50% of the assessed sum, described in the judgment as “the 50% damages point”. The judge made no express finding on the point, describing it as a “marginal consideration”. I will return to it.

The judge then considered the alternative submission made on behalf of the defendant that, if the judge had reached a different conclusion about a private arrangement, the local authority would be under a duty to provide the claimant with her own accommodation, and the assessment of damages should be made on the basis that they would do so from their own resources. Reference was made to Section 21 of the 1948 Act, to the extent of the local authority’s duties under it, and to cases in the High Court, the correctness of which is not challenged in this appeal. The judge expressed his conclusion as to the duty of the local authority under the section:

“85.

…Mr Stewart argued that, if the local authority failed to provide accommodation for a private arrangement in these circumstances, the claimant would not need to demonstrate unreasonableness because under section 21, the local authority has specific duties, and if the local authority failed to fulfil them, judicial review proceedings could be brought on that basis. This does not seem to me to answer the crucial point: what would be the claimant’s position if the local authority determined that there were various ways in which they could properly provide for her needs, including a private arrangement and a residential arrangement, and they proposed to provide a residential arrangement? I do not consider that simply because it is in the claimant’s interests to have a private arrangement, the local authority would ipso facto be in breach of its duty if it provided residential accommodation, or that it could necessarily be compelled to provide accommodation for a private arrangement. There are two reasons for this: the first is that the requirement under section 21 is that the accommodation be appropriate to meet the needs of the claimant. This, as it seems to me, is a less demanding criterion than that the accommodation should be in the claimant’s best interests and that which most nearly restores her to the position in which she would be but for the accident. Secondly, it seems to me that at the fourth stage of the statutory inquiry, the local authority does have some margin of appreciation as to what accommodation should be provided. If I had concluded that on balance a private arrangement is in the claimant’s best interest, I would not have considered that a local authority could be criticised if it came to the decision that a residential arrangement met her needs, and provided her with accommodation accordingly.

86.

Had I decided that damages were to be awarded on the basis of a private arrangement, I would not have upheld the defendant’s argument that damages should be assessed on the basis that the local authority would provide accommodation for that purpose.”

Miss Gumbel QC, for the claimant, makes two submissions. The first is that, even applying the test he did, the judge’s conclusion that a residential rather than a private arrangement was in the best interests of the claimant was perverse. It is submitted that the judge had insufficient regard for the uncertainties inherent in relying on local authority arrangements even when substantial further provision was to be made for their augmentation. The evidence as to what the local authority would provide was insufficiently clear. Moreover, the judge has had insufficient regard for the greater amenity afforded by a private arrangement by way, for example, of giving greater opportunity for privacy. Further, the judge has in effect imposed a duty on the claimant to look first at local authority provision when the victim of a tort has no such duty.

The second submission is that the judge has in any event applied the wrong test; the task of the court is to consider, applying longstanding tests affirmed in the House of Lords in Wells v Wells [1999] AC 345, the sum to which the claimant is entitled and not to impose what the court regards as in the best interests of the claimant.

The third question, which bears upon the other two, is whether, on the evidence, the judge was entitled to conclude that the augmented residential arrangement met the common law test. Emphasis is placed by Miss Gumbel on the paucity of evidence as to whether the augmentation considered necessary was practicable and feasible in the context of a residential arrangement provided by the local authority. Moreover, the inclusion in the award of a sum by way of augmentation demonstrated the inadequacy of the statutory provision.

The parties were given an opportunity to consider the cost of the augmentation found to be necessary upon acceptance of a residential arrangement. A further report was obtained on behalf of the claimant from Ms Bristow. Instructions were received by her on 20 March and the report is dated 21 March 2003, that is four days before judgment was given. The terms of reference were:

“The purpose of this report is to assist the Court to agree the additional costings that would be required to support Louise within a residential care setting over that which the local authority would provide”

That cost was agreed arithmetically at £1,238,540, a sum which was included (subject to the 50% deduction) in the damages awarded.

For the defendant, Mr Hunter QC seeks to uphold the finding of the judge that damages should be assessed on the basis that a residential arrangement provided by the local authority, augmented as agreed, is appropriate. That being so, and subject to the augmentation, the claimant has suffered no loss, which the defendant is obliged to meet, under this head. Under current regulations, the local authority cannot, provided the claimant is properly advised, have recourse to the fund of damages paid.

Mr Hunter accepts that the tortfeasor is liable to make good losses he has caused. However, if the losses will in fact be met from a source other than the tortfeasor, the claimant has no claim to the extent that the losses are made good from that other source. Double recovery is to be prevented. Local authorities are under the statutory duty imposed by Section 21 of the 1948 Act and regulations provide that they cannot charge for facilities provided. The claimant, and those responsible for the claimant’s welfare, such as a receiver, are under a duty to secure and maximise funding available from public funds. They must ensure that such benefits as are available are obtained. To the extent that needs are met by local authorities, and it is reasonable for support from the local authority to be sought, there is no loss for the tortfeasor to make good.

Under Section 47 of the 1990 Act, the local authority has a duty to assess needs and, in cases such as the present, the receiver is under a duty to investigate what is available from welfare services, it is submitted. The court cannot shut its eyes to the duties of public authorities. The uncertainties in predicting public provision may be taken into consideration but if the court comes to the conclusion that the local authority is under a duty to fund accommodation and care and that the provision they make will avoid expense which the individual would otherwise have had to incur, the court must take that provision into consideration.

Mr Hunter makes the further point that a substantial proportion of the cases in which damages are held in the Court of Protection the damages are to be paid by the National Health Service for clinical negligence so that the issue is whether the cost is met by that Service (and hence the taxpayer) as tortfeasor or the local authority (and hence the Council taxpayer) under Statute. That consideration, which in any event does not apply in the present cases, cannot affect the approach to the point of principle involved.

The test to be applied is in my judgment that expressed by O’Connor LJ and Stephenson LJ in Rialis. That is different from the test applied by the judge who repeatedly used the expression “best interests” though he equated that with a position which “most nearly restores her to the position in which she would be but for the accident”. The judge’s good intentions with respect to the claimant’s welfare are not of course in question and neither, in my view, is the perceptiveness with which he approached the medical evidence but there is a difference between what a claimant can establish as reasonable in the circumstances and what a judge objectively concludes is in the best interests of the claimant. In this context, paternalism does not replace the right of a claimant, or those with responsibility for the claimant, making a reasonable choice. It was when dealing with a somewhat different argument but the objective approach was rejected in Rialis (Sir Denys Buckley at page 29A).

The question is more complicated in a case such as the present where the judge plainly had serious doubts about the evidence as to the claimant’s wishes. That is a very different situation from Rialis where the trial judge had held that “everyone agrees that for his own sake the plaintiff ought to be accommodated at home”.

The judge was entitled, in the circumstances, to conclude that “undue weight” should not be given to the evidence as to the claimant’s wishes and to have doubts about other evidence called on her behalf as to the appropriateness of a private arrangement. He was entitled to make his own assessment. A judicial assessment of what can be claimed and required does involve an assessment of the nature and extent of the claimant’s needs. The claimant’s family were showing no interest in her and life at home with her family was not an option. The difference between “best interests” and “the reasonableness of the treatment chosen and claimed for” is considerably reduced. This was a case in which the judge in his analysis was entitled to treat what was in her best interests, as he assessed them, as what was the reasonable requirement in all the circumstances. The judge approached the evidence with great care. He considered the possibilities for the future. I find nothing perverse about his approach or his conclusion.

In general terms, the approach is to compare what a claimant can reasonably require with what a local authority, having regard to uncertainties which almost inevitably are present, are likely to provide in the discharge of their duty under Section 21. If the second falls significantly short of the first, as Owen J found in Crookdake it did, the tortfeasor must pay, subject to the argument raised in both cases that Section 21 provision augmented by contribution from the tortfeasor meets the reasonable requirements. If it is the statutory provision which meets the claimant’s reasonable requirements, as assessed by the judge, the tortfeasor does not have to pay for a different regime. I accept that in making the comparison a court may have regard to the power to compel a local authority to perform its duties.

What has concerned me about the judge’s award is his treatment of the sum offered by concession on behalf of the defendant to augment the Section 21 provision contemplated and its effect on his conclusion. The judge stated that he bore in mind that augmentation, or topping up, was to be provided. He also concluded (paragraphs 85 and 86) that, had he found private provision appropriate, he would not have found that the local authority could have been required to provide it. That conclusion is not challenged in this appeal. It would be resurrected on a finding that the judge was not entitled to conclude that the augmented residential regime was, on the evidence, acceptable and appropriate.

Before addressing the question further, I turn to the facts and reasoning in the case of Crookdake where the same question arose. In that case, the judge was not prepared to hold that augmented statutory provision was appropriate.

The claimant respondent is Philip Crookdake. On 14 September 2000, his 36th birthday, he sustained an extremely serious head injury when knocked from his bicycle by the defendant Mr Drury’s motor vehicle. Liability to pay damages was admitted and on 30 May 2002 judgment was entered with an order that damages be assessed.

The claimant was serving in the Royal Marines and was described by Owen J, in his judgment, as “an outstanding Petty Officer”. His intention when he had completed his career in the services was to pursue a career as a practice manager for general practitioners. He is a married man with a daughter Hannah, aged 1 year at the date of the accident. He and his wife lived with their daughter and his wife’s two children by a former marriage in their own home in Street, Somerset.

The claimant suffered widespread damage to the brain and has been left with profound cognitive and intellectual deficits. The medical evidence need be summarised only briefly. It was agreed:

“[The claimant] must be regarded then as having profound and permanent cognitive and behavioural deficits as a result of his extremely severe head injury. …. He will require constant care for the remainder of his life”.

“Mr Crookdake has serious difficulties with regard to behavioural disturbance and will easily become verbally and physically aggressive”.

“Mr Crookdake needs constant prompting, guiding and supervision and needs a one:one carer regime”.

A modest reduction in life expectancy was agreed.

Professor M P Barnes and Dr N H Walton provided evidence as to the appropriate care regime. Professor Barnes was in no doubt that “living in his own accommodation is in his best interests rather than living in a nursing home”. Accommodation should be in “quiet and perhaps rural surroundings”. Having referred to the claimant suffering from temper outbursts in response to noise, frustration or stress, Dr Walton stated that “the absence of irritations and stress caused by other inmates would lead to an improvement or at least a stabilising of his behaviour”.

The judge concluded, at paragraph 12:

“It is also now acknowledged on behalf of the defendant that the evidence as to the claimant’s requirements is conclusively in favour of the provision of accommodation for him in his own home with 24-hour care”.

At paragraph 41, the judge stated:

“…it is now common ground that residential accommodation would be unsuitable for the Claimant, and that he needs to be accommodated in his own home with a regime providing 24-hour care. Not only is that conceded by the defence, but it is the conclusion at which the local authority arrived when making an assessment of his need under section 47 of the [1990 Act] in the spring of this year”.

The agreement between the parties as to most heads of damage was mentioned by the judge: special damages £194,252, future loss of earnings £370,000, loss of terminal grant £6,295, loss of pension £49,941 and Mrs Crookdake’s loss of earnings £30,000. The judge approved those figures and awarded general damages for pain, suffering and loss of amenity of £140,000 and costs of receivership at £80,000.

The judge identified (paragraph 22) what he described as the central issue between the parties:

“It is the Defendant’s primary contention that the local authority, the Devon County Council, are under a statutory duty to provide both accommodation and ancillary services for the Claimant. It is submitted –

1.

that the nature and standard of accommodation and ancillary services provided pursuant to that duty has to be appropriate to the Claimant’s individual needs,

2.

that in reality the accommodation and ancillary services that the local authority is under a duty to provide are no different from the Claimant’s reasonable requirements as to accommodation and care assessed in accordance with the applicable legal principles,

2.

that the local authority cannot charge the Claimant for accommodation and ancillary services because his fund of damages and the income that it generates is to be disregarded in assessing his ability to pay,

3.

and that in consequence the Claimant has not sustained any loss with regard to accommodation and care.”

A sum of £1,950,000 was agreed for future care (and for present purposes a sum for future accommodation) “subject to the overriding argument advanced on behalf of the defendant that the claimant’s local authority is under a statutory duty to provide the requisite care”. That sum was based on an annual cost of £85,000. While those sums are subject to that dispute, a sum of £840,000 was offered to meet the difference between local authority provision and the requirement of the claimant held to be reasonable. That sum would meet the need for care reasonably required which fell outside the scope of Section 21(5) of the 1948 Act, as defined in ex parte Coughlan,it is submitted.

The judge found for the claimant in relation to the future cost of accommodation and care. Having referred to the care and accommodation which the local authority could provide, the judge concluded, at paragraph 45:

“In the light of the available evidence it cannot in my judgment be said that there is no material difference between the provision that the local authority is obliged to make and the assessment of his requirements for the purpose of quantification of his claim for damages”.

At paragraph 53, the judge identified the difference he was considering as that between “the accommodation and ancillary services that the local authority are obliged to provide and the claimant’s reasonable requirement as to accommodation and care assessed in accordance with the applicable legal principles”.

The four reasons given by the judge for his findings were:

“47.

First it is submitted on behalf of the Claimant that he reasonably requires a property that will not only accommodate him and his residential carers, but will also be large enough to accommodate his wife and daughter from time to time. He is entitled to enjoy as natural a family life as possible; and I am satisfied that that is one way in which that can be achieved. But the local authority is not under any obligation to provide a property capable of accommodating Mrs Crookdake and Hannah.

48.

Secondly, the question of the type of location of accommodation for the Claimant. I am satisfied on the evidence that he requires a bungalow in reasonably close proximity to Mrs Crookdake’s home in Ivybridge. The local authority’s assessment identifies the need for the accommodation to be located in a quiet environment, but does not otherwise specify the type or location. Although the Claimant, through those representing his interests, would be able to express a preference under the 1992 Choice of Accommodation Directions, the local authority is only required to make arrangements for a person to be accommodated in his preferred accommodation if it appears to be suitable in relation to his needs as assessed by them (see para 3 of the Directions “Conditions for provision of preferred accommodation”). As Andrew Smith J pointed out in paragraph 85 of his judgment in Sowden, at the fourth of the stages of the statutory inquiry identified by Henriques J in R v London Borough of Islington ex parte Batantu[2002] 2 CCLR 445, the local authority has some margin of appreciation as to what accommodation should be provided. There can be no certainty that provision by the local authority in the proper discharge of its duty, will match the accommodation that is the basis upon which his claim for future loss stands to be calculated.

49.

Thirdly the Claimant is entitled to be put into a position in which he, through the agency of those representing his interests, can make long term arrangements for his accommodation and care, whereas it would be open to the local authority to discharge its obligations to him, subject only to the provisions of the preferred accommodation directions, by a series of short term placements in rental accommodation. Had the accident not happened the Claimant could have looked forward to a secure future. He is entitled to the same degree of security

50.

Fourthly, his freedom of choice as to his domestic arrangements, albeit exercised through those responsible for the management of his care, would inevitably be circumscribed by being dependent upon the local authority for his accommodation. It may well be that in the future Mrs Crookdake would wish to move. In that event his dependence upon the local authority would curtail their freedom of action as a family, particularly if she wished to move out of the area of the Devon County Council.

The judge considered proposals which had been made on behalf of the defendant though he found one of them confusing. He added, at paragraph 51:

“But in either event the provision that the local authority is prepared to make in discharge of its duty falls far short of the cost of providing the care regime that, on the evidence before me, the Claimant reasonably requires. It is agreed that the appropriate care regime will cost approximately £85,000 per annum, over £1600 per week.”

Mr Hunter, for the defendant, accepts that the judge correctly identified the issue between the parties and correctly stated the law. The Devon County Council is under a statutory duty to provide accommodation and ancillary services for the claimant and, provided the nature and standard of accommodation and ancillary services provided pursuant to that duty is appropriate to the claimant’s individual need, the claimant has not sustained loss with regard to accommodation and care because the local authority cannot charge the claimant for accommodation and ancillary services. That is the position because the fund of damages and the income that it generates is to be disregarded in assessing the claimant’s ability to pay (paragraphs 22 and 35 of judgment of Owen J and cases referred to at paragraph 29 of the judgment: Firth v Geo Ackroyd Junior Limited and Another[2001] Lloyds LR Med 312, Bell v Todd [2002] Lloyds LR 12 and Ryan and Another v Liverpool Health Authority [2002] Lloyds LR Med 23.

That analysis, and the correctness of those decisions, is not challenged on behalf of the claimant so that the issue is whether or not, on the evidence, the judge was entitled to reach to reach the conclusion he expressed at paragraphs 45, 51 and 53 of his judgment. The defendant’s case is that care and accommodation would be provided under Section 21 of the 1948 Act. If this did not meet the reasonable requirements of the claimant, the defendant could be required to pay the sum of £840,000 for care to augment that provided by the local authority. While several calculations were put forward on behalf of the defendant, that sum was calculated on the basis of additional one-to-one support daily for 10 hours a day. The defendant’s case is that on the evidence it was not established that the claimant reasonably required something different from and of a higher standard than that which the local authority would provide under Section 21 of the 1948 Act. Recourse to the local authority was appropriate and he should not be permitted to recover damages from the defendant.

Mr Hunter attacks each of the four reasons given by the judge:

Reason 1. It is submitted that the evidence did not support staying visits by members of the family. The claimant did not always know that he was married to his wife. There was little, if any, difference between what had been offered by the local authority and what the judge required. If there was a difference, that could be met by the proposed top-up payment.

Reason 2. The judge ought to have concluded that the local authority in practice would have been obliged to provide suitable accommodation and in close proximity to Ivybridge. The consultation required by the 1992 Directions would have been likely to produce appropriate accommodation and there was no evidence of differences in price between Ivybridge and elsewhere. Any difference in cost could, in any event, have been met by way of top-up.

Reason 3. On the evidence, there was no real risk that the local authority would place the claimant in a series of short term placements in rented accommodation. The court must accept that the local authority will meet its obligation to provide accommodation which meets identified needs.

Reason 4. The evidence was that a later move would not be in the claimant’s interest and there was no evidence that Mrs Crookdake might wish to move. A move could in any event be accommodated within the statutory framework.

The general point is made that the judge has either taken too limited a view of the duty upon the local authority or has assumed that the local authority will fail to discharge it.

On behalf of the claimant, Mr Witcomb makes the specific point that, while Mrs Crookdake accepted in evidence that the family could never live together, she added that she would continue to visit her husband. The judge was entitled to conclude that provision for overnight stays for members of the family, in rooms separate from that provided for carers, was appropriate. As to the need for single storey accommodation, evidence from Dr Barnes that, because of the risk of stumbling and falling down stairs, single storey accommodation would be preferable was not challenged. The judge was entitled to draw the inference he did. Mr Witcomb makes the general point that neither the expert nor the non-expert witness statements disclosed by the defendants addressed the issue of top-up care. No analysis was provided of what care the local authority would provide under Section 21 or what care was necessary to supplement that or how the supplementary provision would be operated. There was no evidence from Devon County Council or other source as to what the local authority would provide under Section 21 and there was no expert assessment of how the proposed additional provision would be applied. In his third and fourth reasons the judge mentioned and had in mind care as well as accommodation.

Reliance is also placed on the conclusion of Elias J in Howarth v Whittaker [2003] Lloyds Rep Med 235, at paragraph 29, that the claimant in that case “should be allowed to have a single care regime in which the case manager can directly recruit the carers”. Mr Witcomb refers to the practical difficulties of attempting to manage and co-ordinate a care regime in which two different sets of carers, employed by separate employers, are expected to operate together. Cox J adopted the same approach in Neale v Queen Mary’s Sidcup NHS Trust [2003] EWHC 1471 QB, at paragraph 62.

While considering Howarth, I add that Elias J did give a separate reason, at paragraph 29, for rejecting the double recovery argument. He raised the possibility that if some care is paid for privately, the local authority may claim that they no longer need to provide it because it is being provided in any event. I agree with Mr Hunter that, if the argument were to be raised by a local authority, it would not be a sound argument. The care is, by definition, additional to the Section 21 provision and is funded by damages which are to be disregarded for the purposes of Section 21 and 22. The presence of the additional funding does not nullify the Section 21 obligation.

I have referred to the judge’s general conclusions. He also referred, at paragraph 52, to the fact that the claimant’s care is “particularly demanding” and that the claimant has to be handled “with great sensitivity”. The judge concluded in that paragraph:

“Unless it could be assumed with confidence that the local authority would fund a care regime at a cost of the order of £85,000 per annum, then it cannot be said that there is no material difference in care to be provided by the local authority, and the requirement as assessed and agreed for the purposes of this claim. In my judgment it is not possible to make such an assumption on the material before me.”

The judge accepted the possibility of top-up payments to meet any shortfall between the claimant’s reasonable requirements and an assessment of needs under Section 47 of the 1990 Act but stated, at paragraph 54, that the difficulty faced by the defendant in advancing that argument is “that there is no sound evidential basis upon which to assess such shortfall”.

While the differences identified by the judge were not of the most substantial kind, the judge was in my view entitled to reach the conclusion he did and it is one which is sufficiently supported, on the evidence, by the reasons given. The judge heard oral evidence and was in the best position to assess the reasonable requirements of the claimant and how they could appropriately be met. Strong reliance is placed on the substantial top-up offer which was made on behalf of the defendant but the judge was entitled to conclude that in this case it had “no sound evidential basis”.

In written submissions on behalf of the defendant, reliance was sought to be placed on the absence of “proper evidence before the court as to how the local authority would in fact discharge its statutory duty in providing 24-hour care”. That absence does not assist the defendant. The judge must reach a conclusion on the evidence before him, drawing inferences where appropriate. That is what the judge did and I see no fault in the way in which he did it. The defendant did not call evidence of what the local authority would have, or would be likely to have, provided, evidence which might, I put it no higher, have undermined the claimant’s case.

While claimants, and those advising them, must be expected to co-operate with local authorities discharging their statutory duties, they claim in the action that to which they believe the claimant is entitled and there is no legal burden on them first to disprove that statutory provision will be adequate. It may of course be prudent to call evidence, as in any situation where a judgment upon the facts is to be made, as to why statutory provision is inadequate.

I would dismiss the defendant’s appeal.

The main issue between the parties throughout was whether a residential or a private arrangement was appropriate and the judge’s finding on that issue is central to his judgment. Whether a residential arrangement required augmentation, if the common law standard was to be achieved, was also considered. In an updated counter-schedule of 18 December 2002, a modest augmentation was proposed by way of some assistance from a support worker, limited services of a case manager, additional physiotherapy if reasonably necessary, and additional holiday costs. At the hearing, a substantial additional offer was made as mentioned in paragraph 23 of this judgment.

I have been troubled by the paucity of the evidence as to how the augmented portion of the residential provision would work and the absence of a detailed care scheme on behalf of the defendant incorporating the augmented element. Such evidence as there was came from Ms Bristow, including cross-examination. She gave lengthy evidence on 19 February 2003. The main topic under consideration was whether a private or a residential arrangement was appropriate. In re-examination, she raised a difficulty about the availability of carers in a local authority residential arrangement. That appears to have been related to limited resources and not to practical difficulties in supplementing, by means of additional support, a residential arrangement.

In a supplementary cross-examination which the judge permitted, Ms Bristow was asked about the cost of the additional provision but, understandably, her evidence could not be precise. An opportunity was given for a further written report and the report mentioned at paragraph 33 of this judgment was obtained. The augmentation was costed at £1,238,540. The provision proposed overcame the difficulty considered in re-examination. Ms Bristow did not suggest on either occasion that top-up care was impracticable because of factors considered, for example, in Howarth, Neale or Crookdale, or otherwise. While the question of practicability had been raised in Miss Gumbel’s closing submission, no request was made for an adjournment to allow the question to be considered.

In my judgment the judge was entitled on the evidence to conclude that it was “in the interests of the claimant to have a residential arrangement”. His assessment of the evidence was conspicuously clear and fair. His conclusion that a residential arrangement was appropriate was firmly stated and convincingly reasoned. He saw positive advantages for the claimant in living at a residential home. The judge was entitled to reach the conclusions he stated at paragraphs 32 and 54 of his judgment (cited at paragraphs 24 and 26 of this judgment).

The judge did however state (paragraph 63) that damages were to be assessed on the basis that, under a residential arrangement, the claimant was to have additional care for a significant part of the day. That is where the difficulty about the absence of evidence of the practicability of such augmentation arises. The judge should not have been put in a position in which the augmentation finally proposed emerged only towards the end of the trial and in cross-examination of a witness for the claimant, who may not have been fully aware of the considerations involved. Faced with the late and informal introduction of such a scheme, it was difficult for practicability to be investigated. An adjournment could have been, but was not, requested, submissions on behalf of the claimant being devoted mainly to advocacy of a private arrangement.

The sum by way of augmentation was almost certainly offered on behalf of the defendant with a view to inclining the judge towards the residential solution. While it cannot be criticised on that ground, its incorporation with the award makes the result in the circumstances unsatisfactory. The judge was not given, and did not insist on, an opportunity to assess the feasibility of augmenting residential care in the manner proposed. Not without hesitation, I have come to the conclusion that the claimant should be given an opportunity to go back to the judge and attempt to demonstrate that the augmentation proposed was impracticable and, that being so, the balance is tipped towards a private arrangement. I bear in mind the reasons given by the judge for preferring the residential solution and his entitlement to stand by them even if augmentation to the extent offered is found to be impracticable. The defendant’s case was presented in such a manner, however, that, having regard to the importance of the case to the claimant, she should be given that opportunity.

I would propose a limited remission to Andrew Smith J. On the basis of his findings as to the claimant’s needs, which are not subject to review, the judge should give the parties an opportunity to call further evidence as to the practicability of the augmentation proposed and whether it is likely to be implemented. Having decided what is and what is not practicable, the judge should re-visit his conclusion as to whether, in the circumstances as found, a local authority based residential arrangement still meets the common law test. If, on analysis, the level of implementation found to be appropriate involves further costs, those can be taken into consideration.

If the judge remains of the view that a local authority residential arrangement is appropriate but the proposed additional expenditure, or a part of it, does not arise by reason of its impracticability, it will be for the judge to decide whether, and if so, to what extent, the defendant is entitled to resile from the concession in the sum of £1,238,540.

To that limited extent, I would allow this appeal.

Mr Hunter takes the point mentioned at paragraph 28. It was taken by Mr Stewart at the trial and summarised by Andrew Smith J at paragraph 73.

“He argued that because the claimant is to recover only half of the damages for full liability, the claimant is unlikely, on any view, to be able to afford a private arrangement for the rest of her life. Accordingly, it is said, if the claimant has a private arrangement, she is likely to face a disruptive change at some time in the future. Mr Stewart submitted that I should take this into account in comparing the merits of a private arrangement and a residential arrangement.”

Reliance was also placed, and the judge appears to have seen merit in the point (though not on the present facts), that, by analogy with Section 2(4) of the 1948 LR Act, mentioned in paragraph 14 of this judgment: “if on the balance of probabilities, private facilities [as distinct from National Health Service facilities] are not going to be used for whatever reason the plaintiff is not entitled to claim for an expense which he is not going to incur” (Woodrup v Nicol [1993] PIQR Q104 at Q114).

Miss Gumbel submits that the Court assesses damages in the “100% world” and shuts its eyes to contributory negligence at that stage. The Court has not been referred to authority directly on the point.

Until 1945, contributory negligence was a complete defence to a tortious claim. Section 1 of the Law Reform (Contributory Negligence) Act 1945 (“the 1945 Act”) provided, in so far as is material:

“Apportionment of liability in case of contributory negligence

(1)

Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage:

Provided that –

(a)

this subsection shall not operate to defeat any defence arising under a contract;

(b)

where any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.

(2)

Where damages are recoverable by any person by virtue of the foregoing subsection subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault.

Thus Section 1 abolishes the common law rule that contributory negligence is a complete defence and provides a procedure for determining the size of the award where responsibility for the damages has been held to be shareable.

I agree with Miss Gumbel’s submission. Damages are to be reduced having regard only to the “claimant’s share in the responsibility for the damage”. That assumes an assessment of the sum recoverable prior to any reduction for contributory negligence. Sub-section 1(2) points strongly in the same direction. The reduction takes account of share of responsibility for the damage but not how the damages are likely to be spent.

In Kelly v Stockport Corporation (1949) 1 All ER 893, when the maximum amount recoverable in the County Court was £200, the judge assessed damages in a personal injury action at £300 and the claimant one-third to blame. The judge awarded £200.

On appeal to this court, Tucker LJ stated, at page 895B:

“In the present action the damages recoverable were limited, by reason of the provisions dealing with the jurisdiction of the county court, to £200. It is, therefore, the £200 which has to be reduced. In other words, it is not the damage sustained, in fact, by the plaintiff, but the damages recoverable in respect thereof which must be taken into consideration in this connection.”

Asquith LJ stated, at page 985E:

“The operation of s.1(1) of the Law Reform (Contributory Negligence) Act 1945, seems quite plain. It raises two questions – (i) What is the claim in respect of the damage suffered ? and (ii) What are the damages recoverable in respect of that claim? The claim was for £200 and the damages recoverable in respect of that claim cannot exceed £200 for two reasons: - (i) because a party cannot recover more damages than he claims in any civil court; and (ii) because he cannot recover more than £200 in the county court owing to the limits of its jurisdiction. £200 is the “damages recoverable,” and it is this sum which, by sub-s.(1), has to be reduced in the event of contributory negligence being established.”

Thus the “damages recoverable” are first to be assessed; in Kelly the county court maximum, in the present case damages applying ordinary tortious principles, and it is the sum so assessed which is to be reduced for contributory negligence. It is then for the claimant to decide how the sum awarded should be applied. This principle does not conflict with the different principle established by Section 2(4) of the 1948 LR Act.

The finding of contributory negligence has no bearing upon the manner of the assessment of damages in this case. A side effect of a contrary conclusion would be that, upon an appellate court altering the apportionment under the 1945 Act, a re-assessment of the damages recoverable might be necessary. It is most unlikely that Parliament intended that result.

What emerges from the present cases is the importance, when dealing with cases involving very serious injuries, of placing before the court cogent evidence as to how the regimes proposed by the parties for the care and accommodation of claimants will operate. I repeat my comments in paragraphs 62 and 63 in Crookdake. Judges trying this type of case should not be put in the position the judge, in Sowden, was. Whatever is proposed should be particularised and costed in the schedule (or counter-schedule) of damages. When issues arise, efforts should be made to define and narrow them in advance of the hearing.

When local authority residential care with top-up is proposed, whether as a primary or a fall-back position, the basis on which it is put forward should be explained in writing as should any attack upon its feasibility and suitability. The issues raised in the present appeals have not turned on a detailed consideration of the 1992 Directions but their effect, and that of guidance given with them, may well require consideration in future cases. The expression top-up now appears in paragraph 4 of the September 2003 guidance. The concept was present in paragraph 8 of the 1992 guidance, though not cited by either judge; presumably because of concessions made.

The statutory background

The position in relation to care expenses is different. Although local authorities have, since 1993, been obliged to give care to those in need of such care, there is no provision, equivalent to section 2(4) of the 1948 Act, enacting that a defendant tortfeasor cannot allege that it would be unreasonable for a claimant to have incurred, or to incur in the future, the cost of care provided privately. It is, therefore, always an issue in such cases whether private expenses of care which have been incurred have been reasonably incurred and whether it would be reasonable to incur such private expenses in the future. Moreover, if a claimant availed himself (or herself) of local authority care, the local authority was, pursuant to sections 22 and 29 of the National Assistance Act 1948 and section 17 of the Health and Social Services and Social Security Adjudications Act 1983 entitled to look to any of the claimant’s resources (including any claim he might have for damages in negligence) in order to recoup the cost of the care provided, see Avon County Council v Hooper [1997] 1 WLR 1605. In 1998, however, it was for the first time enacted by the National Assistance (Assessment of Resources) (Amendment) Regulations 1998 that a local authority could not look to any award of damages for the purposes of such recoupment. Any such award was henceforth to be ring-fenced from such claims. It has been held, at first instance, that, as a consequence of these regulations, the tortfeasor cannot be made liable for the cost of such care since the cost of care paid for by a local authority is a cost which the claimant has not had to pay in the past and will not have to pay in the future, see Firth v George Ackroyd Junior Ltd [2001] Lloyd’s Rep Med 312, and Bell v Todd [2002] Lloyd’s Rep Med 12.

I did occasionally wonder during the hearing whether it was really the intention of the draftsman of the 1998 regulations not merely to ring-fence an award of damages, once made, so as to ensure that such award should be unavailable to local authorities providing or paying for care services to a claimant but also to achieve the result that, because no claim to recoup themselves from such an award could be made by local authorities, a defendant tortfeasor was to be under no liability to compensate a claimant for the cost of such care services. But Ms Gumbel QC for the claimants did not argue that Firth or Bell were wrongly decided. This was because once it had been enacted that an award of damages was not to be available for recoupment purposes, the common law, on ordinary principles as exemplified by the authorities in relation to the cost of medical care which will not be incurred as well as the principle contained in Hodgson v Trapp [1989] AC 807, would make no award in respect of costs which were not going to be incurred; thus the cases of Firth and Bell had to follow from the 1998 legislation. It might be thought that it would be more appropriate for legislation to provide that both National Health Trusts and local authorities could recover the costs of medical expenses and care respectively from the tortfeasor as the Law Commission recommended (at any rate in relation to medical expenses) in 1999. As Mr Harvey MacGregor QC points out in his Law of Damages, 17th ed (2003) 35-205 to 209, this is an area of the law where it is doubtful whether there is any real utility in unravelling the intricacies which need to be resolved. That is a matter which cannot be taken further in these appeals.

The Problem

The matter is further complicated by the fact that a local authority makes its own assessment in any particular case whether a person to whom they are obliged to give care needs care in his or her own home or only requires care in a local authority residential home. The mere fact that a judge has held that only a private arrangement will meet a claimant’s reasonable needs does not compel a local authority to agree with that assessment even at the time when the judge so decides; still less will a local authority feel the need to be guided by any such decision as time goes by.

Some judges also have an instinctive feeling that if no award for care is made at all, on the basis that it will be provided free by local authorities, the defendant and his insurers will have received an undeserved windfall.

It is for these reasons that judges have sometimes acceded to invitations to make what may be called a “top-up award” to enable a claimant to have available cash and buy with that cash extra care services, such as the services of carers to look after the claimant while he or she is on holiday or of carers to take the claimant out of the home on an outing once or twice a week. We now have two appeals to this court where “top-up” submissions have been made; in the first case (Sowden v Lodge) the judge (Andrew Smith J) was persuaded that it was not reasonable for the claimant to incur the private expense of care but that he would make a “top-up” award. This award seems to have been made at the suggestion of the defendant whose insurers were concerned to deter the judge from making an award of the cost of private care. The claimant appeals on the basis that the suggestion was “bounced” on her during the trial and that a “top-up” award is unworkable in principle. In the second case (Crookdake v Drury) the judge held that it was reasonable for the claimant to incur the expense of private care; the defendant appeals on the basis that the expense of private care is unreasonable and that, if local authority provision is insufficient, it can and should be “topped-up”.

Sowden v Lodge

What is not clear is whether the judge, if he had not been able to utilise the top-up concept, would have still decided that a residential placement would meet the claimants reasonable needs or whether he would have been driven to hold that the reasonable needs of the claimant required a private arrangement.

On any view the ability to require the defendant to pay the top-up payment was a factor of some importance in the judge’s decision. The defendant, however, never pleaded the amount of top-up which they asserted was required to meet the claimant’s reasonable needs, save to the extent of saying that there should be a mere 9 hours of extra care, which is almost derisory in the context of the extent of the care which was eventually conceded by the defendant as being appropriate. As a result the feasibility of marrying substantial extra care with the care to be provided at the cost of the local authority was in my view never properly explored in the evidence or addressed by the judge.

None of this can be said to be the judge’s fault in any way. He was encouraged by counsel to believe that the crucial issue in the case was what arrangement was in the best interests of the claimant; he was then initially encouraged by the defendant to believe that a comparatively small amount of extra care would resolve the difference between private accommodation and care on the one hand and accommodation and care paid for by the local authority on the other. An increasing number of concessions was then made in the course of the trial which presented a moving target. Ms Gumbel was placed in an awkward position. She should probably have sought a further adjournment to examine the feasibility of the defendant’s concessions once their full extent was apparent. But I do not consider the fact that she did not ask for an adjournment should be a bar to the claimant’s appeal in what is a difficult and developing area of the law. It is more important that justice be ultimately done.

In these circumstances I consider that the fair way for this court to dispose of the appeal is to remit the case to the judge as proposed by Pill LJ in paragraphs 71 and 72 of his judgment.

Permission to appeal was granted in these two cases so that the court could express a view about the propriety of the court awarding top-up damages in a case where a court feels that residential local authority accommodation does not of itself meet the reasonable needs of the claimant but that the claimant does not need the stark alternative of privately funded care or will not avail herself of such private care even if awarded a sum which will enable her to purchase such care. My own view is that, while a top-up award is not inappropriate in principle, a court of first instance should be alert to investigating the evidence adduced in favour of a top-up award in the particular case before him. The cost of a yearly holiday together with appropriate carers for such holiday might well be permissible without difficulty, but top-up arrangements in general may present problems, as Elias J said in Howarth v Whittaker [2003] Lloyds Rep Med 235. Judges should normally be reluctant to let defendants raise possible candidates for top-up in the course of the hearing. This will mean that, while it is for a claimant to assert what are his or her reasonable needs, it is for a defendant who asserts that a claimant should be content with local authority residential care to set out in clear terms whether such reasonable needs can be met by such care and whether there is any respect in which they accept that such care does not meet the claimant’s reasonable needs, so that top-up will be appropriate. It will then be for the claimant to assert that top-up or further top-up in addition to that proposed by the defendant will be required, if local authority residential accommodation is to be provided. This information must then be incorporated into the schedule of damages before the trial begins. Of course developments and re-calculations in the light of such developments will continue to take place during the hearing, but they should be kept to a minimum.

In all other respects I entirely agree with the judgment of Pill LJ including that part of his judgment which deals with the 50% damages point. Kelly v Stockport Corporation [1949] 1 AER 893 is decisive of the point. The recent decision of the House of Lords in Platform Home Loans Ltd v Oyston Shipways Ltd [2000] 2 AC 190 is entirely consistent with my Lord’s judgment on this part of the case. It follows that I would, therefore, dismiss the appeal in the Crookdake case.

I agree with both judgments and with the orders in each appeal proposed by my Lords. These appeals illustrate dramatically the difficulties that nowadays arise in reconciling the principle that a tortfeasor must meet the claimant’s reasonable expenses in coping with the injury he has caused with the ever increasing legislative burden on local authorities to provide care for those who cannot care for themselves and the ability (or otherwise) to recoup the cost thereof. It seems to me that only by legislation can any rationality be brought to this problem. Meanwhile the courts have to do their best to keep the anomalies to the minimum.

As Longmore L.J. has pointed out, private care awards are liable to be astronomically high where awarded on a full life basis while care provided by the local authority may fall short of a claimant’s reasonable needs. It is against this background that the principle of ‘top up’ has emerged. For my part I can see nothing wrong with ‘top up’ in an appropriate case. However, when there is an issue whether ‘top up’ is appropriate and what it should amount to, the issue should be properly identified and supported by evidence, ordinarily well in advance of the trial.

I too have reluctantly come to the conclusion that the case of Sowden should be remitted to the judge on the limited basis indicted by Pill L.J. I too emphasise the judge’s entitlement to stand by his reasons for preferring the residential solution in the event that top up to the extent offered is found to be impracticable.

Sowden v Lodge appeal allowed in part to the extent indicated.

Costs to be agreed, if not agreed submission to be put in writing or to be heard at an oral hearing

Application to be made to Andrew Smith J within 28 days to list the case for further directions.

Crookdake v Dury appeal dismissed with costs.