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Statutory Funding a Choice for the Claimant: The Continuing Impact of Peters

June, 26, 2015

The decision in a recent High Court case has demonstrated the continuing impact of Peters v East Midlands SHA (2010) when it comes to assessing damages in catastrophic injury claims. Insurers should continue to be mindful of a claimant’s desire for care to be funded through compensation – even when statutory provision is available from the State.

In the case, Harman v East Kent Hospitals NHS Foundation Trust (2015), the claimant’s litigation friend sought damages on behalf of their 13-year-old son, Ben. This related to the hospital’s failure to diagnose the claimant’s medical condition at birth and the subsequent failure to inform his parents about the risk of lasting damage. A summary of the case is as follows: –

  • The claimant suffered grave injury caused by the hospital’s failure to diagnose catastrophically low blood sugar levels. The effects of this only became apparent to the claimant’s parents four years later.
  • The claimant suffers from severe autism and significant cognitive impairment and is prone to tantrums and lashing out. As such the court was told that he presents a very real risk of injury to himself and those responsible for his ongoing care.
  • The claimant requires specialist educational care and it was recommended he attend a specialist residential school (Prior’s Court) for those with acute autism. After a lengthy battle the Local Education Authority (LEA) eventually agreed in September 2014 to pay the claimant’s school fees.
  • However, the defendant had admitted liability in July 2013 which paved the way for Ben to attend the specialist school in December of that year under private funding. It was anticipated the claimant would attend the specialist school up to the maximum permitted age of 25.
  • The defendant argued that there was firm evidence the LEA would finance the claimant’s ongoing school fees. However, the claimant’s parents insisted that the school fees be paid from compensation recovered from the defendant.

This raises the important question of in what circumstances can a claimant elect to choose compensation rather than a loss be made good through the statutory provision of a public body.

  • The defendant pointed to the decisions in Sowden v Lodge (2004) and Crofton v NHSLA (2007) and argued that, as there was firm and agreed evidence that payments to Prior’s Court 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. In other words, the Court should take that evidence into account and should not require the defendant to assume responsibility for those fees.
  • However, the claimant’s solicitors argued the defendant had misstated the position. They maintained that the local authority would only continue funding if the claimant’s representatives applied for it, yet they had made clear their wish for school fees to be paid through damages obtained from the defendant.
  • The judge agreed with the claimant, referring to Peters where the court upheld a claimant’s right to choose damages rather than be dependent on the State. In Harman the judge stated the reasonableness of such a request was not pertinent as the parents’ intention was nothing other than genuine.
  • This left the matter of what would happen once the claimant left the school upon turning 25. Whilst the judge criticised the claimant’s expert evidence for defaulting “into an early assumption that an individual regime was appropriate without considering the alternatives”, the judge preferred the claimant’s case for individual care over institutional care. This supported the wishes of the claimant’s parents and their determination for their son to eventually return to the family home.

Observations

This case is a reminder that the intentions of a claimant and claimant’s family are a key consideration when assessing damages in catastrophic injury claims.

The effect of Peters remains that a claimant can elect to pursue a tortfeasor rather than rely on statutory funding, even when, as this case illustrated, there is firm statutory funding in place to meet the claimant’s future needs up to a specific date.

In the Harman case a significant amount of time had elapsed between the injury being sustained and the claimant’s family discovering the impact of the hospital’s negligence. This perhaps prevented early constructive engagement with the claimant, claimant’s family and his solicitors which may have encouraged a different approach and statutory funding being made available earlier, thereby potentially preventing what was likely to have been a damaging and arduous ‘battle’ for the claimant’s parents with the LEA.

Liability was not in dispute in this case. However, where there is a risk of a finding of contributory negligence against a claimant leading to a potentially significant shortfall in the damages, the availability of statutory funding is likely to be a more important consideration for claimants.

As a side note the judge in the Harman case, at paragraphs 31 and 32 of the judgment, singled out the expert evidence for failing to provide “the Court with a level of assistance commensurate with the seriousness of the issue”. The judge considered the report (and those in other cases) as being unnecessarily long, containing too much history and narrative and lacking sufficient analysis and opinion. This serves as a useful reminder of what is required of experts, particularly in respect of catastrophic injury where all too often key points can be lost in the recital of general evidence.

If you would like any further information or to discuss these matters further please do not hesitate to contact Kevin Coakley on 0844 740 4401 or e-mail kevin.coakley@horwichfarrelly.co.uk.

The judgement can be read in full here.

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