In this case (Farrugia v Burtenshaw and others [2014]), liability had been admitted by the defendant road traffic insurer and most quantum issues agreed, however, the parties remained in dispute over the provision of future care and case management.
The case centred on a 22 year old man who had suffered debilitating injuries at the age of 17 years when he had been a passenger in a car. The driver of the car had lost control and crashed into a stationery van. The claimant sustained serious brain and thoracic injuries which have left him with profound communication and physical disabilities. As a result, he is doubly incontinent, dependent on artificial feeding methods and requires around the clock nursing care. Further, his predicament is unlikely to improve. Being of tall stature, two adults are required to move and reposition him effectively.
It was agreed between the parties that the claimant requires at least one full-time carer, however their opinions differed regarding the times that two carers are needed.
The Judge referred to the legal test, which is to:
“as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation” (Livingstone v Rawyards [1880].
An example of the application of the test is the case of Rialas v Mitchell [1984] which concerned a 12 year old boy. Here, the judge appreciated that it would be cheaper for the boy to be cared for in an institution, however, decided that where it is reasonable for the boy to be treated at home, this should be the preferred choice as it more closely reflects what would have happened had the accident not occurred.
In the Farrugia case, the Judge balanced the reasonable requirements of the claimant to a life similar to that he would have enjoyed without the injuries including a degree of spontaneity to go out, with the usual constraints and requirements to plan outings that people experience in everyday life.
The ruling focussed particularly on the 6-8pm slot. The judge decided that during the week the claimant would be entitled to two carers for 3 days and one carer plus a family member for the other two days with the weekend slots being split between the two regimes. Additionally, there would be a further two hour slot on Saturdays and Sundays with the carer and a family member to reflect the increased requirement for family time. At all other times, the claimant would be cared for by two carers.
This is not legal advice; it is intended to provide information of general interest about current legal issues.
If you require any further information on this subject please contact Alexandra Dean on 01245 228141 or email deana@gepp.co.uk
