Troubled relationship
Date: 10 April 2009
Authors: Roger Harris
Issue: Vol 159, Issue 7364
Categories: Features, Personal injury, Damages
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The relationship between state-funded care and damages awards has troubled the courts for some time. In Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145, [2009] All ER (D) 24 (Mar) the Court of Appeal (CA) considered the issue as to whether a claimant's care and accommodation costs should be borne by the tortfeasor or the local authority that was charged with the statutory duty of making arrangements for providing care and accommodation to the claimant.
The claimant in Peters was a 20-year-old who as a result of the defendant's negligence contracted congenital rubella syndrome. In February 2007, aged 18, the claimant was placed in a private care home pursuant to a contract between her council and the owners of the home. The cost of her accommodation was borne equally by the council and the primary care trust.
Mr Justice Butterfield held that it was reasonable for the claimant to choose to be self-funding as opposed to relying to any extent on state provision for her care, and that it was reasonable for her to make that choice immediately. Consequently the claimant was awarded almost £4m in respect of future care and accommodation.
The defendant appealed. The principal issue on appeal was whether the claimant was entitled as of right to choose damages rather than provision of care and accommodation by the council. This issue distinguished the case from the many cases in which the courts have awarded a claimant care costs as a head of loss, not on the grounds that the claimant was entitled to those costs as of right, but because local authority care had been ruled out as inadequate, uncertain or unavailable.
Reasoning
The CA saw “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”. The reasoning of the CA was that it was difficult to see on what basis the case could be distinguished from cases where a claimant has a right of action against more than one wrongdoer. The CA accepted that the claimant's right against the council was a statutory right to receive accommodation and care, but concluded that the fact that there was a statutory right in the claimant to have his or her loss made good in kind, rather than by payment of compensation, was not a sufficient reason for treating the cases differently.
The one important caveat to this conclusion was that it applied “provided that there was no real risk of double recovery”. The CA decided that no such risk existed as terms of the court order pursuant to which the deputy was acting could be amended so that there was a limit on the authority of the claimant's deputy, whereby no application for public funding of the claimant's care needs under s 21 of the National Assistance Act 1948 could be made without further order, direction or authority from the Court of Protection.
Work equipment?
In Couzens v T McGee & Co Ltd [2009] EWCA Civ 95, [2009] All ER (D) 191 (Feb) the claimant was injured when the tipper lorry he was driving overturned as he was leaving the M1 motorway. The lorry overturned because it was travelling too fast. It was the appellant's case that he was going too fast because he had been unable to move his right foot from the accelerator to the brake. This was because a piece of angle iron used by him as a makeshift tool and which he kept in the side pocket of the driver's door had caught in his trouser leg. He blamed his employers for the accident on the basis that they had failed to provide a suitable place in which he could safely keep this makeshift tool.
At first instance the judge accepted the claimant's version as to how the accident occurred. Thus the claim turned on whether the appellant could prove that the respondent employer had been in breach of duty in respect of the storage of the tool. The judge accepted that the angle iron was a tool and that it fell within the description of “work equipment” under the Provision and Use of Work Equipment Regulations 1998 (SI 1998/2306) but concluded that it was not reasonably foreseeable to the defendant either that the claimant would use this type of angle iron, or that he would store it where he did.
Permission to appeal was granted. On appeal the respondent argued that in order for an employer to be liable under the regulations it had to be established that he knew of the use of the piece of equipment. The CA accepted this submission. Lady Justice Smith explained that implicit permission may be inferred from evidence that an employer was aware that an item was being used and did nothing to stop it. On the facts of Couzens there was no evidence which established that the employer knew that that the angle iron was being used by the claimant as a makeshift tool. Accordingly the appeal was dismissed.
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