23 SEP 2015
Ben Harman (a child by his mother and litigation friend Joanne Harman) v East Kent Hospitals NHS Trust  EWHC 1662 (QB)
Clinical negligence – future loss – care – specialist schooling
High Court, Queen’s Bench Division: Turner J
11 June 2015
The court allowed the claimant’s claim for specialist schooling to be paid from his damages rather than through public funding. In relation to future care after leaving school, the court favoured a home-based individual approach over a residential one which was in accordance with the wishes of the family.
The claimant suffers with severe autism and developmental problems as a consequence of a misdiagnosis of a medical condition as a young child. Liability was admitted. Quantum was agreed apart from the issue of how specialist schooling should be funded and whether care thereafter ought to be provided residentially or by the family at home.
The claimant was in attendance at a specialist school funded by the local authority and was doing very well when the defendant admitted liability. It was the claimant’s wish for his continuing fees to be paid from his damages rather than through public funding.
The defendant contended that as the Local Authority was already funding the schooling and had agreed to do so into the future, there was no potential future loss to the claimant and the matter was a fait accompli.
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The court noted that the Local Authority would not continue paying if the fees were recovered as damages and no further application for funding was made. There was therefore no double recovery. The court was firm in the view that the claimant was entitled to pursue the defendant for this loss and despite the offer of an indemnity from the defendant in the event of public funding faltering, the claimant ought to be in a position to pay privately through his claim.
It was agreed that the claimant would leave his specialist school at the age of 25. At that stage the family wanted him to move home and be cared for on an individual basis rather than residentially. The court preferred the expert evidence of the educational psychologist for the defendant in favour of residential care but ultimately agreed with the wishes of the family to have the claimant cared for at home. The parties were invited to agree damages accordingly.
The defendant cannot use the availability of public funding as an argument to avoid paying damages and the wishes of the family will carry considerable weight in respect of future care.
Summarised by Adam Dyl, Anthony Gold Solicitors