Lawyers in the field of clinical negligence have been arguing for some time now about who should pay for care in cases where a claimant has a high future care need. The argument that the NHS has been putting forward is that where there is a statutory duty by a local Council to provide care then it is that Council, not the NHS, who pays the bill.
The Court of Appeal in the case of
Chantelle Peters has just clarified the position in favour of claimants generally. Ms Peters, has a severe disability due to congenital rubella syndrome and she had successfully sued her Health Authority for damages. The Health Authority however argued that it did not have to pay for her future care as Nottingham City Council was duty bound to look after her. It was said that Ms Peters had to take advantage of the Council’s services to lessen her losses (“mitigation of loss”). The Health Authority also argued that there was a danger that if the Council’s duty was not taken into account, Ms Peters would be overcompensated (“double recovery”).
The Court of Appeal decided that Ms Peters had a right to decide that the Health Authority ought to compensate her for her future needs. The Health Authority’s mitigation of loss argument was rejected because it was said that she was not under a duty to obtain a contribution toward the Health Authority’s damages. As to the double recovery argument, the court said safeguards could be put into place to make sure that there would be no double recovery.
It is hoped that this case will put a stop to any further arguments by the NHS on the issue so as to simplify and make more certain the calculation of damages on behalf of those with complicated and demanding care needs.
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