Care costs

The latest instalment of the struggle between defendants and local authorities was played out in the Court of Appeal recently in a case where Islington Borough Council appealed against a decision dismissing its action of negligence against a hospital trust on the basis that the trust did not owe a duty of care to the local authority.

A third party had been injured through the negligence of the trust and required residential care, which was provided by the local authority. The local authority was unable to recover the cost of care from the injury party because she had no money, and therefore the injured party had not made any claim for those costs against the trust. Furthermore the council was precluded by legislation from recovering the cost of care from the structured settlement agreed between the injured party and the trust.

The council therefore tried to recover the cost from the trust in an action in negligence contending that a duty of care was owed to it because it was reasonably foreseeable that a breach of duty of care to the injured party would cause loss to the local authority. They said that it was unreasonable and unfair that the trust should escape its liability for part of the results of its negligence because of the double accident that the injured party was being cared for by a public body and that she was unable to pay for that care.

However the Court of Appeal found that a local authority that provides care to a person injured by the negligence of an NHS trust could not recover the cost of that care directly from the trust in a claim for negligence as the trust did not owe a duty of care to the local authority.

Islington London Borough Council -v- University College London Hospital NHS Trust (2005) Court of Appeal 16 June 2005.

Care costs: can the local authority satisfy the claimant's needs?

In another care costs case, the claimant suffered from cerebral palsy and sought periodical payments for care. The defendants argued that, as the local authority would contribute to some extent to the claimant’s care, the periodical payments should be reduced to reflect that contribution. The Judge held that the burden was on the defendant NHS trust to show that the local authority could wholly or partially satisfy the reasonable needs of the claimant; and the trust had failed to discharge that burden as it did not adduce any evidence to show that the local authority or any organisation would provide any care for the claimant or bear any of the costs of providing the care.

Walton -v- Calderdale Health Care NHS Trust. QBD 18 May 2005.

VWF award

This was an HAVS case where liability, causation and quantum were all in issue. We succeeded on liability but the most interesting issue was that of causation.

The claimant was supported by Mr Doig who said that the claimant had HAVS stage 2R (2)/2L(2) and 1sn. The defendant’s expert, Doctor Cooke, said there had been a progression of symptoms from the time of Mr Doig’s report and that the condition must be constitutional. This was contested by Mr Doig and it was not possible for a joint report to be prepared. The claimant denied that there had been any progression or deterioration in his symptoms at the time of Mr Doig’s report.

Mr Doig said it was not possible for the claimant to have had a condition from any factor other than vibration, and rejected the constitutional cause argument. Doctor Cooke was certain of the deterioration in the symptoms and that the only explanation could be the process of ageing. However he admitted that, unlike Mr Doig, he is not a vascular expert and that, if he were carrying out health monitoring in the workplace, he would send the claimant to a vascular surgeon. The Judge preferred Mr Doig’s evidence and awarded general damages of £6000 reduced by 25 per cent for pre 1976 exposure.

Gardner -v- Powergen UK plc. York County Court 26 May 2005.

Footballer ordered to pay bill for make-up

A professional footballer threw a lit firework at a 17-year-old girl causing severe burns to her shoulder and her face leaving significant scarring. General damages of £27,500 were awarded plus special damages of over £15,800. Of this sum, the vast majority consisted of the cost and future cost of camouflage make-up. We obtained evidence from Ms Susan Griffiths, a cosmetic camouflage expert.

In significant scarring cases we should in future consider obtaining a cosmetic camouflage report to include the cost as part of the special damage.

Morris -v- Rodgers. Redditch County Court 11 April 2005