When an individual has suffered a significant injury affecting their ability to care for themselves, it will be necessary to include a claim for care in any litigation pursued on their behalf. The duration of this care will depend upon the individual’s condition and prognosis and will reflect whether improvement is expected or if the need for care is life-long.
The extent of any care regime proposed will depend upon the individual’s circumstances including the nature of their mobility problems, any concurrent conditions such as epilepsy, and whether the individual exhibits challenging behaviour such that they need care and supervision for their own safety and the safety of others.
In a case put forward on behalf of an individual who has suffered catastrophic injuries, the claim for care is usually the biggest head of claim and is also, very often, the most contentious. Arguments will include those relating to the number of hours of care required, the numbers of carers required at any one time, and the rates to be paid to carers.
When assessing the appropriate compensation to be paid to an injured individual, the aim is to put that individual in the position that they would have been in but for the injury that is the subject of the litigation as far as possible. The sum allowed for care should reflect this principle. Any damages should be both fair and reasonable.
The question of a fair and reasonable care regime was addressed recently by Mrs Justice Cox in the case of Manna v Central Manchester University Hospitals NHS Foundation Trust (2015). This was a case concerning a young man who sustained severe injuries at around the time of his birth. He has severe cerebral palsy together with severe cognitive, social and communication impairments and autism.
The parties disagreed about the amount of care he required with the defendant suggesting that he only required one carer most of the time with some additional, flexible care for outings and times of need. It was asserted on the claimant’s behalf that two carers are required at all times due to the claimant’s injuries and associated behavioural problems. After weighing up all of the evidence, the judge determined that two carers were required at all times for the claimant’s safety and those of others.
In any case where a claim for significant care is made, it is crucial that evidence is compiled which accurately reflects the claimant’s condition, prognosis and care needs. The claimant’s medical, therapy and educational records should be collated, as relevant, as well as the risk assessments carried out by those involved in the claimant’s care.
It can be helpful if diaries and careful care logs are kept by both family carers and any professional carers and witness statements taken where relevant. This information will help the experts involved in the case to opine on the individual’s care needs.