| Damages — Personal injuries — Pain, suffering and loss of amenity — Severely disabled claimant requiring life-time care — Reduction of damages to reflect claimant’s entitlement to local authority direct payments — Whether local authority entitled to take account of capital sum — Whether possibility of future change of policy on direct payments to be taken into account
Crofton (A patient suing by his father and litigation friend John Crofton) v National Health Service Litigation Authority
CA: May, Dyson and Smith LJJ: 8 February 2007
Legislation and guidance concerning direct payments by local authorities towards the care costs of severely disabled people was so complex and labyrinthine that it was impossible for the court to decide to what extent a local authority would take account of a claimant’s award of damages for medical negligence.
The Court of Appeal so held when allowing the claimant’s appeal against an award for future care of £1,387,525 made in the Queen’s Bench Division by Judge Reid QC on 19 January 2006 against the defendant, the National Health Service Litigation Authority, and remitting to the judge for further consideration the extent to which the claimant’s damages should be reduced to take account of direct payments which would be made by his local authority.
DYSON LJ, giving the judgment of the court, said the claimant had suffered severe brain damage soon after birth as a result of medical negligence. It had been agreed that the claimant would be paid 67.5% of damages assessed on the basis of full liability. The judge assessed the claimant’s total yearly care costs at £122,602, and decided that his local authority, Hampshire County Council, would make yearly direct payments of £68,018 which should be offset against the care costs. The judge had applied a whole-life multiplier of 25.42 to produce the future care total. His Lordship reviewed the relevant legislation and guidance, referring to s 29 of the National Assistance Act 1948, s 2 of the Chronically Sick and Disabled Persons Act 1970, s 47 of the National Health Service and Community Care Act 1990 and s 4 of the Disabled Persons (Services and Consultation and Representation) Act 1986, s 57 of the Health and Social Care Act 2001. It was unfortunate that the issue of direct payments had arisen at a late stage in the case and had been taken then and there rather than after an adjournment for proper service of evidence and a schedule of loss. When assessing whether it was necessary for it to meet the claimant’s care needs the local authority was not entitled to take account of the capital sum represented by a damages award. There had been no exploration at trial of the extent to which the local authority would take into account income from the capital sum, and accordingly the judge had not had sufficient material to enable him to decide whether the income would be taken into account by the council. The judge had been wrong to apply the whole-life multiplier to the direct payments, since it was not clear whether current government and council policy on the issue might not change in the future. It would be highly desirable if the local authority were joined in the proceedings when the issue was remitted to the judge.
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