Freeman v Lockett
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TOMLINSON,Mr Justice Tomlinson |
| Judgment Date | 07 February 2006 |
| Neutral Citation | [2006] EWHC 102 (QB) |
| Docket Number | Claim No: HQ04X00469 |
| Court | Queen's Bench Division |
| Date | 07 February 2006 |
[2006] EWHC 102 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Tomlinson
Claim No: HQ04X00469
David Westcott QC and Nathan Tavares (instructed by Stewarts) for the Claimant
Richard Davies QC and Charles Brown (instructed by Barlow Lyde & Gilbert) for the Defendant
Hearing dates: 29,30 November and 2 December 2005
Approved Judgment
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
In my interim judgment which I delivered on 6 December 2005 ( [2005] EWHC 3150 (QB)) I described the injuries which the Claimant Maria Freeman sustained on 25 February 2002 in a traffic accident on the M1 motorway for which the Defendant has admitted liability in negligence. That judgment must be read with this in order to understand the nature of the Claimant's needs over the rest of her life. The Claimant has been left a C5 tetraplegic Frankel B with C6 on the right side. She is wheelchair dependent and unable to perform any transfers in consequence of the upper body paralysis. Fortunately she has survived the accident with all her cognitive and intellectual powers intact. She is an intelligent, strong-minded and self-willed person who is determined to live as normal a family life as is possible.
As a result of negotiations between the parties agreement was reached in respect of many of the issues relevant to the ascertainment of an appropriate award of damages. Certain issues of principle relating to the Claimant's long-term future care requirement proved incapable of agreement and I heard evidence and argument about these issues on 29 and 30 November and on 2 December 2005. As I have indicated above I gave judgment on these issues on 6 December 2005. In the light of my judgment the parties were then able to agree, subject to one further point and subject of course to any appeals as to which all parties' rights are reserved, that the appropriate lump sum award in this case would be £5,546,245.
At the same time as the argument on future care issues I also heard argument on what the parties called, by way of shorthand, the "state funding issue." This is an argument to the effect that the award to the Claimant should be adjusted to reflect the fact that she is currently in receipt of and may be expected to continue to receive a financial benefit from the local authority in whose area she is for the time being resident. The purpose of that benefit is to fund the provision of practical assistance for the Claimant in her home. It is said on behalf of the Defendant that since the evidence points overwhelmingly to the Claimant's condition, and therefore her needs in this regard, being incapable of material change, at any rate by way of improvement in her condition, so therefore there could be no rational basis for the local authority determining in the future either to reduce the amount of its current payment or, still less, to withdraw such funding. As at the date of trial the Claimant was receiving from Hertfordshire County Council a direct payment of £969.54 per week or £50,416.08 per annum. In consequence of my finding concerning life expectancy and thus the appropriate multiplier this argument at its highest involves an invitation to reduce the award by a sum in excess of £1,000,000. Recognising that the argument might not, in its purest form, appear attractive to the court, Mr Richard Davies QC for the Defendant proffered a sliding scale approach, engagingly described as a "cascade." Thus it was suggested that if the court concluded that a substantial award of damages to the Claimant might induce the local authority to require from her a contribution to the cost of her care, as they assessed it to be, the court could be confident that such contribution would not exceed the current maximum weekly contribution of £310 prescribed by Hertfordshire County Council. That limit has been set by the local authority in accordance with guidance issued by the Department of Health. The relevant "Guidance for Councils with Social Services Responsibilities" is contained in a document issued in September 2003 called "Fairer Charging Policies for Home Care and other non-residential Social Services." Paragraph 17 of that document contains the following: —
"All councils should consider whether and how to set an overriding maximum charge and should consult users specifically on this issue. In some councils, this is set at a proportion of typical local residential care charges, to ensure that no perverse financial incentive is created for users to leave their own homes."
It was pointed out that there is no evidence of any current proposal by Hertfordshire County Council to increase the current maximum contribution. On this approach the suggested reduction from the award otherwise appropriate would be £34,296.08 per annum, multiplied by the appropriate multiplier, reflecting a supposed weekly contribution of £310. It was recognised that the court would need to do justice to the imponderables which might affect the availability and extent of local authority funding in the future. However it was submitted that the mere fact that such uncertainty exists does not mean that no adjustment should be made.
At the conclusion of the argument on 2 December 2005 I indicated that, whilst I would give judgment on the conventional future care issues on 6 December, I would reserve my judgment on the state funding issue. I now express my conclusions in relation thereto.
It is in my judgment important to be clear at the outset as to the jurisprudential route which is said to lead to the conclusion that the award of damages should be adjusted in this manner. As I understood it the Defendant's approach was twofold. Primarily the Defendant founded upon some remarks of Lord Bridge in Hodgson v. Trapp [1989] 1 AC 807 at 819: -
"My Lords, it cannot be emphasised too often when considering the assessment of damages for negligence that they are intended to be purely compensatory. Where the damages claimed are essentially financial in character, being the measure on the one hand of the injured plaintiff's consequential loss of earnings, profits or other gains which he would have made if not injured, or on the other hand, of consequential expenses to which he has been and will be put which, if not injured, he would not have needed to incur, the basic rule is that it is the net consequential loss and expense which the court must measure. If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff's loss and expenses in arriving at the measure of his damages. All this is elementary and has been said over and over again. To this basic rule there are, of course, certain well established, though not always precisely defined and delineated exceptions. But the courts are, I think, sometimes in danger, in seeking to explore the rationale of the exceptions, of forgetting that they are exceptions. It is the rule which is fundamental and axiomatic and the exceptions to it which are only to be admitted on grounds which clearly justify their treatment as such."
In reliance on those remarks the Defendant submitted that the effect of the Claimant's submission to the effect that there should be no deduction at all in respect of the prospective benefits to be received by her from Hertfordshire County Council would be to undermine the ordinary and conventional principles of compensation. It was stressed that any award of damages is purely compensatory and thus that a claimant is required to give credit in respect of any benefit received or likely to be received and that this applies to past contributions and should also apply to future contributions. That is as I understand it an argument concerned with the proper quantification of the net expenses to which the Claimant will be put consequential upon her injury. If in consequence of the injuries sustained the Claimant will in the future enjoy receipts to which she would not otherwise be entitled, here in the shape of local authority funding of the provision of practical assistance in her home, those receipts are to be set against the aggregate of the Claimant's expenses consequent upon the injury. The tortfeasor is ordered to pay only the net expenses to which the Claimant will be put consequent upon the injury which he negligently caused. This is an elementary aspect of the rule that awards of damages are compensatory.
In the alternative and, as I understand it, distinct from the foregoing approach, the Defendant submits that any failure by the Claimant in the future to avail herself of such financial benefit as may be available from her local authority would amount to an unreasonable failure on her part to mitigate her loss. As a corollary of that should the Claimant expose herself to a liability to contribute to the cost of her care, as assessed by the local authority, by, for example, not paying her award of damages into a personal injury trust, that too would amount pro tanto to an unreasonable failure to mitigate her loss.
I have to confess that, as one who has not before laboured in this particular vineyard, I find these submissions startling. Naturally I accept that the principle involved is compensatory and that one should avoid, so far as possible, double recovery. But I would have expected that the purpose of an award of damages against a tortfeasor would in these circumstances be to relieve the victim of his negligence of the necessity to resort to...
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