(1) Geoffrey James Sandford (2) Maureen Lydia Scherer (Executors of the Estate of Lydia Ellen Rose Sandford, Deceased) v London Borough of Waltham Forest
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE RICHARD SEYMOUR Q.C. |
| Judgment Date | 21 May 2008 |
| Neutral Citation | [2008] EWHC 1106 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 6SS02239 |
| Date | 21 May 2008 |
[2008] EWHC 1106 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Richard Seymour Q.c.
(Sitting as a Judge of The High Court)
Case No: 6SS02239
Robert Sowersby (instructed by BTMK LLP) for the Claimants
Andrew Warnock (instructed by Barlow Lyde & Gilbert) for the Defendant
Approved Judgment
Hearing dates: 14 and 15 May 2008
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 21 April 2003 at about 6.50 a.m. Mrs. Lydia Sandford fell in the bedroom of her house at 47, Brewster Road, Leyton, London E10 (“the House”). The House is in the area in respect of which the defendant, the Council of the London Borough of Waltham Forest (“the Council”), was and is the local authority. As a result of her fall Mrs. Sandford sustained a fracture of the proximal end of her right femur. She was taken to Whipps Cross Hospital, Leytonstone, London E11 on the day of the fall. Four days later the fracture was operated on and fixed internally. Thereafter, it seems, she made a satisfactory recovery, with the fracture healing well and not causing her any pain. However, Mrs. Sandford was in hospital for seven months. When she was fit for discharge she was not discharged to her home, but to a nursing home, Albany Nursing Home in Albany Road, Leyton (“the Nursing Home”). She remained in the Nursing Home from the date of her arrival, 17 November 2003, until her death on 18 October 2006. Mrs. Sandford was required to contribute towards the costs of her accommodation in the Nursing Home.
In this action Mrs. Sandford's executors claimed on behalf of her estate as damages from the Council the sums contributed by Mrs. Sandford towards the costs of her accommodation in the Nursing Home. They also claimed damages in respect of the pain and suffering and loss of amenity caused to Mrs. Sandford by the fracture of her right femur.
The alleged basis of the claims of the estate of Mrs. Sandford against the Council was that Mrs. Sandford fell on 21 April 2003 because she had not been provided by the Council with equipment called cot-sides. It was common ground that at the date of the fall Mrs. Sandford, who was born on 14 April 1912, was aged 91 years and not in good health. It was also common ground that Mrs. Sandford was at that time a person in respect of whom the Council owed a statutory duty by virtue of National Health Service and Community Care Act 1990 s.47(1) (“NHS&CCA 1990 s.47(1)”) to assess her needs. It will be necessary to return to NHS&CCA 1990 s.47 (1) and related provisions later in this judgment. However, the Council in fact, acting by an occupational therapist called Martelie Peach, undertook an assessment of Mrs. Sandford on 26 February 2003. Ms. Peach recommended that the Council provide various aids to Mrs. Sandford, including cot-sides. Some of the items of equipment recommended were provided relatively quickly, but the cot-sides had not been provided by the date of the fall. They were in fact provided on 24 April 2003. The case for Mrs. Sandford's executors in this action was that she fractured her right femur on 21 April 2003 because she fell out of bed, and that she would not have fallen out of bed if the cot-sides had been provided by 21 April 2003.
The justification for the claims for damages in respect of the contributions made by Mrs. Sandford towards the costs of her accommodation in the Nursing Home was said to be that, prior to the fall, Mrs. Sandford had been living in the House, albeit assisted by care provided 24 hours a day by members of her family on a rota basis and items of equipment provided by the Council. The effect of the fracture and the lengthy stay in hospital following it, it was contended, was that Mrs. Sandford was no longer able to live in the House with assistance as previously, and had had to be admitted to the Nursing Home. Thus it was asserted that the need to incur the cost of contributions towards accommodation fees in the Nursing Home was directly referable to the fall, which in its turn was directly referable to the absence of the cot-sides recommended by Ms. Peach.
The case for the Council was that Mrs. Sandford had not in fact fallen out of bed on 21 April 2003, but had fallen whilst getting out of bed. As the cot-sides were not intended to prevent Mrs. Sandford leaving her bed, it was said that the absence of the cot-sides was in fact irrelevant to the fracture sustained by Mrs. Sandford. I shall return to the evidence as to how it was that Mrs. Sandford actually came to suffer the fracture of her femur. However, it is right to emphasise that, although it was contended on behalf of the Council that the lack of cot-sides was irrelevant to her injury, an important point made on behalf of the Council was that it was in fact for the claimants in this action to prove, on the balance of probability, that Mrs. Sandford would have avoided her injury if cot-sides had been provided, and not for the Council to prove the contrary. The significance of that point was that, as I shall explain, the quality of the evidence as to how Mrs. Sandford came to fall was not very satisfactory.
A factual issue also arose from the fact, not in itself in dispute, that in May 2003, whilst in Whipps Cross Hospital, Mrs. Sandford was diagnosed as having suffered a stroke. While it appeared that actually she had not suffered a stroke, as from about May 2003 Mrs. Sandford was almost totally blind. It was suggested on behalf of the Council, but disputed on behalf of the executors of Mrs. Sandford, that as a result of her blindness Mrs. Sandford would have been unable to continue to live in the House in any event. The relevance of the point was that, so it was contended on behalf of the Council, it was for the claimants to prove, on a balance of probability, both that, but for her fall, Mrs. Sandford would not have entered the Nursing Home when she did, and what costs she incurred as a result of entering the Nursing Home which she would have avoided, but for the fall. The latter involved, it was said, proving on a balance of probability when Mrs. Sandford would have entered the Nursing Home, but for the fall.
Notwithstanding the important factual issues as to the circumstances in which Mrs. Sandford came to fall on 21 April 2003 and as to the effects of her blindness on her ability to continue to live in the House, the main focus of the trial before me was on the question whether, assuming that I found in favour of the executors of Mrs. Sandford on the disputed factual questions, Mrs. Sandford had any cause of action against the Council anyway. Since that was the issue upon which the greater part of the trial was spent, it is convenient to consider it next in this judgment.
The law
My attention was drawn to a number of authorities relevant to the issue whether Mrs. Sandford had any cause of action against the Council for failing to provide cot-sides to her before her fall. Before turning to them it is necessary to set out the material parts of the statutory provisions relating to the making of assessments of persons in the position of Mrs. Sandford and the provision of aids and equipment to such persons. The obligations of a local authority to undertake assessments and to provide aids and equipment arise solely as a result of Parliamentary enactment.
For present purposes it is convenient to start with NHS&CCA 1990 s.47(1). One can ignore the references to sub-sections (5) and (6).
“Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.”
The expression “community care services” is defined for the purposes of Part III of National Health Service and Community Care Act 1990, which includes s.47, in s.46(3) as
“services which a local authority may provide or arrange to be provided under any of the following provisions –
(a) Part III of the National Assistance Act 1948;
(b) section 45 of the Health Services and Public Health Act 1968;
(c) section 21 of and Schedule 8 to the National Health Service Act 1977; and
(d) section 117 of the Mental Health Act 1983;”
Part III of National Assistance Act 1948 includes s.29. What is material for present purposes is that s.29(1), as amended, is in these terms:-
“A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”
The final piece in the jigsaw of the legislative provisions is Chronically Sick and Disabled Persons Act 1970 s.2, as amended. So far as is relevant to the issues in this action the material provisions of s.2, as amended, are:-
“ (1) Where a...
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