In Harman v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662 (QB), John Whitting QC appeared for the Defendant Trust in an assessment of damages hearing in a very high value clinical negligence claim. Two important issues of principle were argued: whether the Trust should be responsible for the payment of the Claimant’s fees at a private boarding school to age 25 and whether the Trust should be liable for the cost of a care regime in the Claimant’s own home when he was an adult.

The agreed evidence was that the local educational authority was now paying, and would almost certainly continue to pay, for all of the Claimant’s fees at his school. There was no suggestion that they would not do so in the future assuming that the Claimant’s parents continued to make a claim from the local educational authority. However, the Claimant’s parents told the Court that they would prefer that the Trust, as tortfeasor, pay those costs. There was no question of them being concerned that the LEA funding was not secure; they simply expressed an individual preference that the Trust pay. The Defendant argued that in those particular circumstances, where funding was guaranteed, neither Peters nor any other case was authority for the proposition that the Trust was liable.

Mr. Justice Turner disagreed. He held that the Defendant had an absolute responsibility to meet any costs reasonably incurred as a result of its negligence and the fact that a third party would meet the same costs, if they were claimed from it, was irrelevant. The Claimant (and his parents) were not obliged to make such a claim if they did not wish to.

The judge also dismissed the Defendant’s argument that damages for adult care should be awarded on the assumption that the Claimant would probably be in a residential unit by that stage rather than in his own home. He found, on the facts, that he would probably return to, and be cared for in, his own home. While the parents’ current opinion (that he would definitely return home) was not determinative, it was persuasive evidence. His finding on this issue was largely confined to the facts: it is however worth noting that he was largely unimpressed by the Claimant’s expert witnesses and criticised the fact that both had simply assumed that the Claimant would return home without properly analysing the alternatives.