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Home > Local Government Claims
Personal Injury - Local Government Accident Claim
Personal Injury - Government Contributory Negligence
Louise Sowden (A Patient By Her Litigation Friend The Official Solicitor) V Joanne Lodge : David Leonard Drury V Philip Andrew Crookdake (A Patient By His Litigation Friend Deborah Crookdale) (2004)
[2004] Ewca Civ 1370
Measure of damages : care expenses : accommodation : local authorities powers and duties : contributory negligence : care and accommodation provided at local authority expense : private versus residential arrangement : impact of contributory negligence on damages : s.21 national assistance act 1948
Residential Care Accident Claims
An award of damages for personal injury could in principle be made on the basis that residential care and accommodation provided by the local authority would be augmented or topped up by a payment for the provision of further care but the feasibility of the proposed augmentation had to be proved by evidence.
In deciding whether a private arrangement or residential arrangement was appropriate the fact that damages would be reduced by contributory negligence should not be taken into account.
The appellants (S and D) appealed against the amount of damages awarded in two personal injury cases. S was 13 years old when she sustained a catastrophic head injury in a road accident. The judge had approved a settlement under which damages were to be assessed on the basis that S was contributorily negligent to the extent of 50 per cent.
After the accident S had spent a long period in hospital and at a rehabilitation unit. She had then spent four years at a residential school before becoming resident at a residential home. It was proposed that in future she should be housed in similar residential accommodation to be paid for by the local authority.
Local Authority Contributory Negligence
The judge awarded damages on the basis that the local authority would provide accommodation and social or welfare care under the National Assistance Act 1948 s.21 that would be augmented or topped up by a payment by the respondent (L) for further provision for care and attendance. In the second case the respondent (C) sustained an extremely serious head injury when knocked from his bicycle by D's motor vehicle. C required constant care for the remainder of his life.
The judge held that C should have 24-hour care in his own home rather than in a nursing home. S submitted that the judge's conclusion that a residential rather than a private arrangement was in her best interests was perverse; that the judge had applied the wrong test because the court's task was to award the sum to which the claimant was entitled and not to impose what the court thought was in the claimant's best interests; and that the judge was not entitled to conclude on the evidence that the augmented residential arrangement met her reasonable needs.
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Residental Care Personal Compensation
L submitted that because S was to recover only half the damages she was unlikely to be able to afford a private arrangement for the rest of her life and that that was a matter to be taken into account in comparing the merits of a private arrangement and a residential arrangement.
D submitted that the local authority was under a duty to provide accommodation and ancillary services to C that were no different from C's reasonable requirements; that since the local authority could not recoup the costs from C because his fund of damages was to be disregarded in assessing his ability to pay C had not sustained any loss with regard to his accommodation and care; and that if the local authority provision did not meet C's reasonable requirements, D could be required to make a payment to augment or top up that care provision.
Compensation for Reasonable Needs
HELD: (1) The correct question to be addressed in relation to the care element of S's claim was what was required to meet her reasonable needs and not, as the judge had asked himself, what was in her best interests. But on the facts of S's case the answer to the two questions was the same.
The judge had been entitled to conclude that S's reasonable needs would be met in a residential arrangement with additional care but he did not properly assess the feasibility of augmenting residential care in the manner proposed. The case was remitted to the judge to consider whether the proposed augmentation was impracticable so that the balance tipped back towards a private arrangement.
Contributory Negligence
(2) In deciding whether a private arrangement or residential arrangement was appropriate the fact that damages would be reduced by contributory negligence should not be taken into account, Kelly v Stockport Corp [1949] 1 All ER 893 applied.
No Local Government Damages
(3) In C's case the judge had been entitled to find that a private arrangement was appropriate because it could not be assumed with confidence that the local authority would fund the necessary care regime and there was no sound evidential basis to assess the proposal of top-up payments to meet any shortfall. D's appeal was dismissed.
Judgment accordingly.
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