Martin v Salford Royal NHS Foundation Trust [2021] EWHC 3058 (QB)
Introduction
The Claimant in Martin suffered a sub-trochanteric stress fracture to the right proximal femur in the shower whilst undergoing inpatient mental health treatment at Prestwich Hospital. The fracture is of a kind which is spontaneous, rather than arising from a stressor accident.
In an earlier trial of liability before Andrews J, it was found that there was a negligent delay in the treatment of the fracture, with conservative treatment unreasonably attempted before surgical intervention. The eventual surgical intervention led to a deep-seated intraoperative surgical site infection, which would have been avoided had surgery been attempted earlier.
At the trial on quantum before Bird J, a number of issues arose but the most significant was whether the Claimant could claim for the costs of future private physical care despite currently being on a state-provided care programme conccerning which there was no suggestion that it had to be withdrawn, but which it was argued was inadequate.
Background
The Claimant was a 47-year-old woman and had an “extensive psychiatric history which began before the defendant’s negligence” including emotionally unstable personality disorder (EUPD), suicide attempts and frequent hospital admissions for mental health assessment and treatment ([3]-[4]). Since the Defendant’s negligence, however, she had become physically dependant on others for all aspects of her daily life, and used an electric wheelchair. Her movement was restricted and her balance poor ([6]).
Whilst the Claimant was happy with the mental health care she was receiving ([16]), she was not satisfied with her physical care. She was receiving personal care, domestic support, companionship laundry and meal preparation through five daily visits each week. Each visit lasted 4 to 5 hours. The programme was not flexible, and no care was available outside pre-set visit times. There was no night cover ([17]-[18]).
The Claimant was not happy with this situation, in particular with the lack of any way to go to the toilet at night, which left her “effectively incontinent through lack of provision” ([29]). She also wished to be able to be more spontaneous, for example by visiting museums at the time of her choice as she was able to previously ([30]).
There was no dispute as to the legal basis of the damages assessment ([33]). In relation to physical care, the issues between the parties at the hearing were the extent of the Claimant’s needs and the extent of recoverability ([36]-[64]).
The Claim for Physical care
At the time of trial, the Claimant’s physical care (along with her mental health care, the need for which was independent of the Defendant’s negligence) was provided through a care and support package funded through section 117, Mental Health Act 1983 (after-care for person detailed under section 3/admitted under section 37, MHA 1983).
An issue arose between the parties because the Claimant would have an ongoing right to physical care through s.117 which was non-means-tested and could not be displaced ([38]). The Defendant argued that if damages were awarded for future physical care, this would give rise to a significant prospect of double recovery ([39]).
Bird J approached the question of fact – whether the Claimant would in fact continue with s.117 physical care – as raising in turn three questions: (1) whether a split care package would be detrimental; (2) whether the current physical care package was adequate; and what the Claimant had to say about the matter ([41]). The Defendant’s expert failed to support any argument that, where there was holistic oversight, a split package would be detrimental, so the meat of the issue was the adequacy of physical care under s.117.
Relying on the standard basic principle that a care package must be adequate to put a claimant in the position they would have been but for the defendant’s negligence, Bird J held that the s.117 physical care was not adequate: the Claimant’s overnight effective incontinence and lack of flexibility of timing made this clear ([48]). Bird J also rejected the Defendant’s argument that increased care would lead to dependence which would harm her mental health. Although not an impossible argument to make, it would have needed very clear support from expert evidence ([49] – [50]).
The Claimant’s evidence was that she got on well with her carers, found them professional and had developed a relationship of trust with them. However, Bird J did not accept that this meant the care package was adequate, holding that even if she had been fully happy with it, that would not require a finding of fact, if it was in fact inadequate, that she would continue with it in future ([54]).
Comment
Martin illustrates the fact-sensitive nature of claims for future care in cases where the claimant is already in receipt of state-funded care. The focus will not necessarily lie on an assessment of the claimant’s attitude towards that care, but on an objective assessment of whether it is suitable for meeting the basic goal of tortious damages: to put the claimant in the position they would have been in had the tort not been committed.
Claimants are entitled to live autonomous lives free of indignity and inconvenience, and a care package which prevented toilet access overnight and restricted the Claimant’s ability to enjoy her city as she was accustomed to, and where these things could be provided privately, did not meet that goal.
