Harman v East Kent Hospitals NHS Foundation Trust

The claimant in this case is Ben Harman. He was born on 7 April 2002. Those responsible for his care at the defendant’s hospital negligently failed to diagnose his condition and it was nearly three days before blood sugar measurements were taken. They were found to be catastrophically low. Dextrose was administered but not before Ben had suffered grave injury. However, when he was discharged his parents were told nothing about the risk that his low blood sugar levels may have caused lasting damage.

As Ben grew up, his lack of developmental progress became a source of increasing concern to his parents. He was persistently and significantly failing to reach his expected milestones. However, it was not until 2006 that Mr and Mrs Harman discovered the cause of Ben’s difficulties. They applied for a “blue badge” parking ticket and Ben’s diagnosis was only revealed incidentally when they asked for medical evidence in support of the application.

A letter of claim was served in August 2011 and proceedings commenced thereafter. Liability was disputed on the issue of causation. Eventually, however, the defendant admitted liability in July 2013.

It has not been possible for the parties to agree all aspects of quantum and those that remain in dispute now fall to be adjudicated upon by this court.

Ben suffers from severe autism and significant cognitive impairment. His intellectual ability is very seriously impaired. He is doubly incontinent. He has the vocal communication skills of a six month old baby and his levels of social awareness are only a little higher. Thus he cannot talk and he struggles meaningfully to relate to others. His mobility skills are, however, equivalent to those of a four year old. This means that he is able to run about and engage physically with his environment but he has no awareness of danger to himself or the impact of his behaviour on others. He is prone to having unpredictable tantrums and can lash out physically while shrieking at the top of his voice. There is a real and continuing risk of injury to himself and to others. As he grows older and physically stronger he presents an increasing challenge to those responsible for his care.

I have seen a DVD recording a day in Ben’s life. What it portrays is entirely consistent with the descriptions of Ben’s behavioural presentation which are to be found in the various witness statements and expert reports.

Little imagination is required to appreciate that Ben requires a very high level of care indeed. There remain, however, very serious issues between the parties as to the form in which that care ought to be provided to him in the future. I propose to deal with each of these issues in turn.

For many years, Ben attended Maplewood School and lived at home. There is now no dispute that Maplewood was unable satisfactorily to provide for Ben’s needs. An obviously more suitable regime was available at Prior’s Court which provides specialist services for those suffering from severe autism. Ben’s parents, however, faced a long and uphill struggle to persuade the Local Education Authority (“LEA”) to fund the placement.

It was not until September 2014 that the LEA finally relented and agreed to pay but, by this time, liability in this claim had been admitted and Ben had already started at Prior’s Court in the preceding December under private funding. This was not a day too soon. Ben’s parents were at the end of their tether, exhausted by the physical and emotional challenges of looking after him. Ben has two brothers, one older and one younger. Time which would otherwise have been spent with them was being heavily diverted into attending to Ben’s needs.

Despite the availability of a 52 week placement at Prior’s Court, Ben’s parents elected for a 44 week package which enabled him to continue to spend time at home. As well as the holidays which he spent at home Ben was only at home for 8 weeks a year. In July 2014, the family moved to a large rented house in Marlow which is sufficiently capacious adequately to accommodate Ben and his carers. The lease on this property expires in a little over a year’s time. During this period, the family hope to be able to buy and adapt a suitable property for the long term.

At Prior’s Court Ben has made gratifying progress in, for example, feeding and toileting. He has only now started to hug his mother. Last October, the family went on their first foreign holiday for ten years. At present, Ben comes home every other weekend but his parents have expressed the hope that he will be able to see more of them in future.

The present plan is for Ben to stay at Prior’s Court until he is 25 years old. From the age of 19 it is expected that he will benefit from young adult provision there.

The LEA are presently funding Ben’s placement at Prior’s Court and, subject to the outcome of this claim, would probably continue to do so until he leaves at the age of 25. Against this background, the defendant contends that it should not be required to pay because Ben will suffer no loss.

Each side relied upon the reports and oral evidence of an educational psychologist. They were Mr Reid for Ben and Mr Baldwin for the defendant. They agree in their joint statement that ‘in view of the appropriateness of Prior’s Court, his continued placement there should be guaranteed, subject to review.’

After Ben has reached the age of nineteen the experts were agreed that he will have the benefit of an Education, Health and Care Plan (“EHC plan”) in the same, or similar, terms to the existing statement. It is not suggested that his needs would vary significantly in the meantime or that the responsibilities or duties of the local authority would materially alter. Although provision is not guaranteed, the evidence suggests that there is only a low probability that an appeal would have to be launched to challenge a detrimentally unsuitable EHC plan. In the circumstances of this case, the experts were confident that even if such an appeal were to become necessary it would be successful. The defendant has therefore included in the agreed lump sum settlement a figure to cover the cost of launching any such appeal.

The defendant contends on this basis that to all intents and purposes the court can be confident that the LEA will pay the Prior’s Court fees until Ben reaches the age of 25 and that this is a case in which there is not a mere future potential entitlement but a fait accompli.

In Sowden v Lodge [2004] EWCA Civ 1370, Lord Justice Pill observed, at paragraph 41:

“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.”

In Crofton v NHSLA [2007] EWCA Civ 71, the Court found, in so far as is relevant to this issue:

“87.

To summarise, the judge was right to hold that the Council could and would make direct payments to meet the claimant’s care needs despite the award of damages, and that these payments should be taken into account in the assessment of damages.

88.

Once the judge decided that the Council would make such direct payments, it seems to us that he was bound to hold that they should be taken into account in the assessment of damages…

91.

It is trite law that a claimant is entitled to recover the full extent of his loss. That involves asking what the claimant would have received but for the event which gave rise to the claim and which he can no longer get; and what he has received and will receive as a result of the event which he would not have received but for the event. The question then arises whether the latter sums must be deducted from the former in assessing the damages: Parry v Cleaver [1970] AC 1, 13. In Hodgson v Trapp [1989] 1 AC 807, 891 Lord Bridge said that it was “elementary” that if in consequence of the injuries he has sustained a claimant enjoys receipts to which he would not otherwise have been entitled, then prima facie those receipts are to be set against the aggregate of his loss and expenses in arriving at the measure of damages. To this basic rule there are certain well established exceptions, none of which is of application in the present case.

92.

In principle, payments by third parties which a claimant would not have received but for his injuries have to be taken into account in carrying out the assessment of damages unless they come within one of the established exceptions. It is not suggested that direct payments made by a local authority in the exercise of its statutory functions to make care arrangements under section 29 NAA and section 2 CSDPA may not in principle be taken into account. If the court is satisfied that a claimant will seek and obtain payments which will enable him to pay for some or all of the services for which he needs care, there can be no doubt that those payments must be taken into account in the assessment of his loss. Otherwise, the claimant will enjoy a double recovery.

93.

In Freeman v Lockett, Tomlinson J decided that there should be no reduction in the claimant’s damages to reflect the possibility of direct payments by the local authority. A sufficient basis for his decision was his finding that, provided that no deduction on account of the possible receipt of state or local authority funding was made from her award of damages, the claimant would withdraw her application for funding; she wanted to rely exclusively on private funding for her care.

94.

But he would in any event have refused to make any reduction in the claimant’s damages on account of direct payments for other reasons. He said that there was no principled basis on which the court could estimate what funding the claimant could reliably expect to receive from the local authority for the rest of her life. The court “does not speculate unnecessarily or in an unprincipled manner….I cannot understand how it can be appropriate to impose upon the Claimant the unnecessary risk that funding from an alternative source may cease or be reduced rather than simply to order the provision of the fund in its entirety” (paragraph 35).

95.

In making these observations, Tomlinson J was influenced by the fragility of the policy from which the right to receive direct payments derived. He said that “in the ordinary way, the regime pursuant to which direct payments are made for domiciliary care is very much more vulnerable to adjustment in order to save costs than is the direct provision of residential care” (paragraph 38).

96.

We would accept that there may be cases where the possibility of a claimant receiving direct payments is so uncertain that they should be disregarded altogether in the assessment of damages. It will depend on the facts of the particular case. But if the court finds that a claimant will receive direct payments for at least a certain period of time and possibly for much longer, it seems to us that this finding must be taken into account in the assessment. In such a case, the correct way to reflect the uncertainties to which Tomlinson J referred is to discount the multiplier. We did not understand Mr Taylor to contend otherwise.”

However, it is evident from the way in which the Court of Appeal approached the issue in these cases that it was not there disputed that the claimants would, in fact, be receiving payments from the local authority. In this case, in contrast, Ben’s parents have given evidence that they do not want local authority funding but seek to fund Ben’s time at Prior’s Court privately from an award of damages against the defendant.

In Peters v East Midlands Strategic Health Authority [2010] QB 48 the issue arose as to the extent to which the claimant was entitled as of right to choose to pursue a claim against the tortfeasor rather than to rely upon the statutory obligations upon a public authority to provide her with care and accommodation. Dyson LJ dealt with the matter thus:

“The second issue: is the claimant entitled as of right to choose damages rather than provision by the council?

33.

It is trite law that, if a claimant has distinct rights of action against more than one wrongdoer in respect of the same loss, he can recover against them all, provided that he does not recover in total more than the amount of the loss. So far as we are aware, this principle has never been expressed as having anything to do with the rule that a claimant must take all reasonable steps to mitigate the loss caused to him by the defendant's wrong and that he cannot recover damages for any such loss which he could have avoided but has failed, through unreasonable inaction, to avoid: for the rule, see McGregor on Damages, 17th ed (2003), para 7–004. ”

34.

This principle has also been applied to cases where the claimant has a right of action against the wrongdoer and a statutory right to recover the same loss against an innocent public authority. An example of such a case is The Liverpool (No 2) [1963] P 64 . We discuss this case below.

35.

The question raised by this appeal is whether the principle also applies where the claimant has both a right of action against the wrongdoer to recover damages in respect of a head of loss and a statutory right to have the loss made good in kind by the provision of services by a public authority. In such a case, is the claimant entitled to recover damages from the wrongdoer as a matter of right, or can he do so only if, in all the circumstances of the case, it is reasonable for him not to enforce his statutory right against the public authority?

36.

No authority has been cited to us which decides this question in the context of a claim for damages for the cost of accommodation and care where the claimant has a statutory right to receive an equivalent provision from the local authority. There are many cases where the courts have awarded a claimant care costs as a head of loss, not on the grounds that the claimant is entitled to the costs as of right, but because local authority care has been ruled out as inadequate, uncertain or unavailable: see McGregor , Fourth Supplement, 17th ed (2007), para 35–159E. That is what the judge did in the present case and whether he was right to do so is the third issue raised on this appeal…

53.

Having reviewed these authorities, we can now express our conclusion on this issue. We can see no reason in policy or principle which requires us to hold that a claimant who wishes to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority should not be entitled to do so as a matter of right. The claimant has suffered loss which has been caused by the wrongdoing of the defendants. She is entitled to have that loss made good, so far as this is possible, by the provision of accommodation and care. There is no dispute as to what that should be and the council currently arranges for its provision at The Spinnies. The only issue is whether the defendant wrongdoers or the council and the PCT should pay for it in the future.

54.

It is difficult to see on what basis the present case can in principle be distinguished from the case where a claimant has a right of action against more than one wrongdoer or a case such as The Liverpool (No 2) [1963] P 64 where a claimant has a right of action against a wrongdoer and an innocent party. In The Liverpool (No 2), those two cases were treated alike. In our judgment, the present case should be treated in the same way. It is true that in the present case, the claimant's right against the council is the statutory right to receive accommodation and care. But the fact that there is a statutory right in the claimant to have his or her loss made good in kind, rather than by payment of compensation, is not a sufficient reason for treating the cases differently.

55.

Mr Faulks also submits that there is support for his submission in Crofton v National Health Service Litigation Authority [2007] 1 WLR 923 , paras 88 and 89. We do not propose to set out these paragraphs. Suffice it to say that the whole of paras 87–95 of Crofton's case is predicated on the judge's finding that the council would in fact make direct payments to the claimant to enable him to pay for his care. Crofton's case provides no support for Mr Faulks.

56.

In our judgment, therefore, provided that there was no real risk of double recovery, the judge was right to hold that there was no reason in principle why the claimant should give up her right to damages to meet her wish to pay for her care needs herself rather than to become dependent on the state. The judge was right to be concerned about the possibility of double recovery to which we now turn.”

The defendant in this case concedes that if the payment of the Prior’s Court fees by the local authority were simply a potential entitlement which might or might not eventuate, then it could not ask the Court to take the same into account in its award of damages. However, it is contended that where, as here, the firm and agreed evidence is that such payments are being made and will continue to be made into the future then the effect of Sowden and Crofton is clear and is entirely unaffected by Peters. The Court should take that evidence into account and should not require the defendant to assume responsibility for those fees.

I disagree.

Ben’s parents have unequivocally expressed a preference that the Prior’s Court fees should be paid from an award of damages against the defendant. That is how they would fund Ben’s placement in the event that the Court made provision for the same in adjudicating on this issue. The effect of Peters is to confirm that Ben is entitled to pursue the defendant for these sums rather than have to rely on the statutory obligations of the LEA.

By presenting the situation on the basis that the local authority will continue to pay for Prior’s Court the defendant is misstating the position. The local authority will not continue funding if Ben, through those acting on his behalf, does not claim funding. Peters gives claimants the option to elect to pursue the tortfeasor for such funding. Simply because such funding is already being paid and would continue to be available if a claimant were to choose to take advantage of it does not avail a defendant. Indeed, in Peters the claimant was at the time of the hearing living in a private care home which was being jointly funded by the local authority and the Primary Care Trust.

In this case, Ben’s parents fought a long and difficult battle to obtain public funding for Prior’s Court. This struggle took a predictable toll and the issue was resolved only by taking the matter to a tribunal. I am satisfied that Ben’s parents’ expressed wish to elect to take private funding is entirely genuine and evidences a settled intention in this regard. There is no need for me to adjudicate on whether or not their preference is reasonable. To do so would effectively reintroduce the question of mitigation of loss which was so firmly rejected in Peters.

The defendant suggests that if, contrary to its primary case, I were to find that there is a real chance that statutory funding might falter after Ben reaches the age of 19 then they would offer a capped educational indemnity. Again, this misses the point. The right of recovery against the tortfeasor in this category of case cannot be diluted by the offer of an indemnity. Of course, it would be entirely wrong for Ben to receive double recovery and his advisers have indicated that they will preclude this by the deployment of an appropriately worded indemnity from his Deputy. I will make no comment at this stage as to the appropriate form or content of any such safeguard against double recovery. That may be agreed between the parties subject to my approval or, if necessary, resolved following further argument.

In the light of my findings on this issue it would not be appropriate for Ben to be paid any sum towards the cost of potential appeals to the tribunal and this contingency figure should be deducted from the lump sum which has otherwise been agreed.

Ben’s parents now see him for eight weeks of the year and every other weekend. Mrs Harman has expressed a wish that he should come home more frequently and, with a full care package and appropriate accommodation would propose that he should be able to return home every weekend for the duration of his stay at Prior’s Court. In contrast, the defendant suggests that as he grows older Ben will come home less rather than more frequently. Ms Douglas on behalf of the defendant has made enquiries at Prior’s Court as to the usual frequency with which residents return home. On balance, I am satisfied on the evidence I have heard that Ben will continue to come home with the same frequency neither significantly more nor less than at present. In the light of my conclusion on the issue of Ben’s future after the age of 25 it is entirely reasonable that there should continue to be a significant level of contact. I reject the argument that the level of contact would be likely to fall to just 21 days per year. The example of what other families choose to do overlooks the facts that very many of them will not have the facilities available to Ben when he is at home. I do, however, consider that the evidence as to his nocturnal habits does not justify a continuing element of waking night care. He wakes with relative infrequency and I am satisfied that the level of disruption is such that sleeping care would be appropriate.

There is a very significant dispute between the parties as to Ben’s future after he has reached the age of 25 at which point the Prior’s Court regime will cease to be available to him.

Ben’s parents would like him to return home. The defendant, however, contends that he is likely then to be looked after in specialist residential care and, indeed, it would be in his best interests for him to be so.

The proper resolution of this issue is of central importance to both parties. It is important for Ben’s future and the sums of money at stake are very considerable. It was therefore disappointing that the expert evidence in some respects fell short, particularly on paper, of providing the Court with a level of assistance commensurate with the seriousness of the issue.

I would make the following points, some general and some specific to this case:

The defendant points to the following particular factors in support of its stance on this issue:

The response on behalf of Ben can be summarised thus:

I had the benefit of hearing from Ben’s parents both of whom gave evidence at the hearing. Ben’s mother said unequivocally that they now wanted Ben to be back with them after he leaves Prior’s Court.

Care must be taken in cases such as this not to equiparate the preferences of relatives with the regime of care and support the cost of which should be the basis of reasonable compensation. Each case must be looked at on its own facts. There may well be circumstances in which, however strong and genuine the desire of the parents or a spouse or partner may be to have the claimant home, there are good reasons for taking a contrary course. The purpose of damages in a personal injury claim is to compensate the victim and not to accommodate the wishes of his family whatever the extent of the inevitable personal sympathy one might have for those who are left to pick up the pieces and suffer the inevitable and sustained emotional impact of serious injury to someone dear to them.

On the other hand, the wishes of loved ones are by no means necessarily irrelevant in any given case. It is to be noted, in particular, that in this case the joint report of the educational psychologists reached the following unequivocal conclusion:

“We are agreed in the final analysis the question of post 25 provision for Ben is a matter of parental choice.”

It was not clear to me on the face of the document whether this view was one which was intended to apply generically or was directed towards the particular circumstances of Ben’s case. Had it been the former I would almost certainly have rejected the proposition. However, when I asked Mr Baldwin, the defendant’s expert, what he had intended to convey he replied that it was, on the particular circumstance of this case, his opinion that the choice of the parents coincided with the regime which he would endorse for Ben. He went on to explain that a regime which met the aspirations of the parents would be more likely to succeed than one which did not.

I can see force in Mr Baldwin’s approach. Whereas Mr Reid on behalf of the claimant makes a positive case for an individualised care programme, Mr Baldwin is less convinced and, with respect to a residential regime, concluded that “…consideration should therefore be given to adult provision within this field.” Mr Baldwin was less dogmatic than Mr Reid and his approach to the future was more nuanced. I consider, as I have stated earlier in this judgment, that there is force in the defendant’s contention that neither Mr Reid nor Ben’s care expert, Ms Harrison, gave sufficient thought in the early stages of their involvement in this case to the alternative regime proposed by the defendant.

On the other hand, the resolution of the disputes in a case like this does not depend on the results of a forensic beauty competition between experts.

Ultimately, I have reached the conclusion that, notwithstanding the deficiencies in the presentation of the expert evidence, reasonable compensation for Ben must involve funding a private regime at home. In the particular circumstances of this case I do not think that a residential solution would be reasonable.

Having heard from Ben’s parents I am satisfied that their determination and enthusiasm to welcome Ben back to the family home when he leaves Prior’s Court is entirely genuine. Notwithstanding the fact that the time is many years hence I have concluded that their confidence will be sustained. I bear in mind the particular fortitude with which they have coped with the stresses and strains of looking after Ben over the years as a strong measure of their dedication. I do not regard it to be illogical that Ben should move from an institutional regime to a private regime at the age of 25. His time at Prior’s Court can reasonably be expected to maximise his potential and prepare him for the rest of his life to the fullest extent. This does not automatically mean that he should spend the rest of his life in institutional care as a matter of consistency.

I must also take into account the particular features of Ben’s condition. His autism prevents him from forging the sorts of relationships with people of his own age which developmental problems alone would not otherwise have precluded. The advantages of a community setting are therefore in this respect far less marked in his case than those in which autism is not a feature. Furthermore, although he struggles with social interaction he has only recently started to show affection for his mother in the form of giving her hugs. This marks a major step forward and emphasises the importance of his particular relationship with her. There is nothing unusual about the fact that he will be entering his later twenties when he returns home. His physical maturity will unhappily not be matched by mental and emotional development and, in these respects, he will always be a very young child.

Perfectly properly, Ms Douglas, the defendant’s care expert, entered into discussions with Prior’s Court to find out what opportunities were available for those leaving at the age of 25 by way of further residential options. It is clear that these options have provided valuable resources for many of those who have left Prior’s Court in the past. The criticism of the claimant’s experts that they appear to have defaulted into an early assumption that an individual regime was appropriate without considering the alternatives is not without force. However, I have formed the view that the defendant’s analysis takes its case only so far. A very considerable proportion of those leaving Prior’s Court will not have relatives as dedicated as Mr and Mrs Harman and will not have the option of a bespoke individualised care package. But in the particular circumstances of this case I am satisfied, as was Mr Baldwin, that if I were to find, as I do, that Mr and Mrs Harman would sustain their dedication to the prospect of having Ben back home then this would be determinative of the issue.

It must be appreciated, however, that with the best will in the world the extent to which Mr and Mrs Harman would and could be expected to contribute to the care of Ben cannot continue indefinitely and I would expect such contribution effectively to terminate when both have reached the age of seventy. I accept that this is a somewhat arbitrary point but the alternative of costing for gradually reducing care over a period would simply serve to introduce complexity with no greater likelihood of predictive accuracy.

Accordingly, on the issue of individual care versus institutional care I find in favour of the arguments ventilated on behalf of Ben.

The parties have indicated that they will seek to agree the financial consequences of my ruling. In the event that such agreement cannot be reached or that any further clarification of my findings is required the matter should come back before me for further argument.