Anthony Burton v Guy Francis Kingsbury - High Court of
Justice 13 September 2007
Anthony Burton, who was 18 at the time, was the front seat
passenger in a car being driven by his friend, Guy Kingsbury, near
Waterlooville, Hampshire. His girlfriend, Jennifer Haynes, who is
now his wife, was the back seat passenger. They were all wearing
seat belts. The car crossed 4 lanes of traffic and rolled twenty
feet down a bank. Mr Burton was trapped in the car, suffering
catastrophic injuries. He was rendered a C4 quadriplegic,
wheelchair dependent and was unable to use any part of his body
below his shoulders, but he survived the accident with his mental
capacity intact. Liability was admitted shortly before trial,
leaving the main areas of quantum in dispute.
Mr Burton was awarded £227,000 for pain and suffering and loss
of amenity. On all the evidence he was expected to live until he
was 66 years of age, a further 41 years beyond his current age. The
medical experts looked at the epidemiological research and
literature in relation to quadriplegics and then at the medical
history and prognosis for Mr Burton to assess his life expectancy
in comparison with the average for a man of his age set out in
Table 1 of the Ogden Tables which deals with 'Impaired Lives'.
Given that mortality had already been taken into account in
assessing his life expectancy, it was held that using Table 1 again
to establish the appropriate multiplier to discount damages for
future cost or care and other future losses was inappropriate as it
would involve a double discount. It was held more appropriate to
use Table 28 which deals with Multipliers for pecuniary loss for
term certain to establish an appropriate multiplier which was fixed
at 25.78, resulting in a difference of some £40,000.
Following the accident, Mr Burton purchased a bungalow with a
garden, indoor swimming pool and existing separate annex for the
carer, for himself, his wife who was also involved in the road
accident and their child, conceived and born post accident. As
regards future care and case management it was held that the most
appropriate care regime for Mr Burton involved, a flexible '4 man
team' approach with 2 carers being present for 4 hours per day
totalling almost £112,000 per year. This allowed for 18 hours a day
for daytime care with an additional provision for a night sleeper
for 337 nights a year, waking nights in times of illness, national
insurance, annual or sickness leave, recruitment and payroll costs
and additional food costs and community access fund. In the
circumstances of the present case the court decided not to award
periodical payments but did consider that it was appropriate in
relation to the cost of future care and case management.
As regards the extent to which the award of damages in respect
of future care required to be reduced or adjusted to reflect the
funding for care which Mr Burton received and would continue to
receive from the state, the court considered the socio-political
question as to whether a wrongdoer should in fact benefit from the
state funding his victim's care. Following the recent Court of
Appeal decision in Crofton v NHS Litigation Services [2007] 1
WLR 923 and in the circumstances of the case it was held that
state funding could not be ignored. Evidence was heard from the
Council that their current policy regarding funding for care took
account of the capital income of any particular client and any sums
awarded by way of damages. However, it was emphasised that this
policy could change in the future. With this background in mind,
the court held that the defendant should pay whatever proportion of
the annual payment which the court had awarded in respect of care
and case management and was not funded by the state. The court held
that there would require to be safeguards in place as regards
timing of payments and the parties were at liberty to come back to
the court for further direction.
Mr Burton was awarded sums in respect of occupational therapy
and aids, physiotherapy and equipment and hydrotherapy and swimming
pool. The court heard evidence from both sides that Mr Burton would
benefit from regular sessions of hydrotherapy. The court held that
it had been reasonable for Mr Burton to have bought the property he
did and that there was no basis for concluding that he had paid an
excessive price for it. An award of interest was also payable on
the difference between the figure paid for the house and the much
lower figure he would have paid for an ordinary property had he not
suffered the accident. He also recovered the adaptation costs of
the accommodation and running cost of the swimming pool in full. As
regards future loss of earnings, it was held that but for the
accident Mr Burton would have earned about £16,800 per year.
Applying a multiplier of 20 gave a total award of £336,000. In
addition Mr Burton was entitled to special damages for items such
as loss of earnings, family care, equipment, insurance and
travelling expenses. In all, he was awarded damages of over
£6,000,000.
At present we have no Scottish authorities dealing with the
issue of care expenses and state funding. However, in the last few
weeks, Lord McPhail in Argyll and Bute Council v Judicial
Review of a decision of the Scottish Public Services
Ombudsman, held that it was not possible to interpret the
Scottish legislation regarding free personal care for the elderly
as obliging a local authority to make payments for personal care
that was not provided by them. It will therefore be interesting to
see how this socio-political issue is dealt with in Scotland.
Contributed by Tanya Gordon