Crofton v NHSLA - Court of Appeal, 8 February
2007
This case concerned a 26 year old man (at date of trial) who had
suffered a serious brain injury when he was a few days old leaving
him with the mental age of a young child and requiring 24 hour
care.
The Court of Appeal decided that 'direct payments' (payments
that the Council would or might make to the claimant towards his
care costs) may be taken into account in the assessment of damages.
However, it cannot be assumed that direct payments will always be
made. The Court of Appeal makes it clear that it very much depends
upon the circumstances. The view is taken that there may be cases
where the possibility for a claimant receiving direct payments is
so uncertain that they should be disregarded altogether in the
assessment of damages. It will depend on the facts of the
particular case. It would therefore seem prudent for insurers to
obtain appropriate expert reports to allow offers to be set at the
correct level. If a court finds a claimant will receive direct
payments for at least a certain period of time and possibly for
much longer this finding must be taken into account in the
assessment.
Iqbal v Whipps Cross University Hospital NHS Trust -
Queen's Bench Division, 8 December 2006
This deals with a number of issues. It suggests the model of the
single resident carer is redundant due to the application of the
Working Time Regulations. A claimant may not need physical or
direct attention for every hour of the day but may need a carer to
be on call. It appears that the whole of the hours when a worker is
required to be in the premises and be on call count as working time
for the purposes of the Working Time Regulations. This means that
the employed carer is entitled to periods of consecutive hours of
rest free from being on call, with the consequence outlined above
for the model of a single resident carer. Iqbal also addresses how
an award of damages should deal with the employers' add on costs.
Iqbal adopted the reasoning in A v B Hospitals NHS Trust 2006 EWHC
1178. There it was argued by the claimant that the on costs
associated with the care regime should be individual costings on
the basis of a 58 week year. For the defendant it was argued that
the care costs should be calculated by reference to a 52 week year
but should be uplifted by 27% to reflect the costs of national
insurance etc. In A v B it was said that neither system is
particularly precise but in the nature of things complete precision
will not be possible and on balance the claimant's approach was
followed. The reasoning being it was said to be more likely to
reflect the actual costs which will be incurred. That said, Iqbal
does not give rise to a legal rule on the treatment of 'on costs'.
The court simply preferred the view of one of the experts as to the
best way of doing this. It would be open to another court to
approach matters differently.
Dealing with Crofton first there was support for the defendants
in instances where there is a possibility of double recovery by a
claimant for direct payment. Insurers need to look at ways in which
they can maximise this support. Offers may have been made to
pursuers which do not reflect the existing local authority funding
arrangements. This must not be lost sight of and perhaps
reconsideration or even withdrawal of such offers may be the most
appropriate course. Separately the seeking of advice on the issue
of Section 29 funding should also be considered.
In Iqbal the issue of single resident carers was considered to
be in breach of the European Working Time Directive. However, some
of the added extra costs like recruitment and ERNIC costs were
unrecoverable.
Contributed by Douglas Brodie