Robert Seabrook QC and Richard Mumford appeared on behalf of the Defendant Trust in AB v Royal Devon & Exeter NHS Foundation Trust  EWHC 1024 (QB), Irwin J, 4 May 2016.
The claimant, who was a long-term drug user, presented at hospital with epigastric pain; this was initially suspected to be inflammation of the gall bladder. In fact, the pain was likely caused by a developing spinal abscess which went on to cause sudden deterioration in the early hours of the morning and ultimately paraplegia and wheelchair dependence.
There was uncertainty as to whether steps should and could have been taken which would have avoided permanent spinal damage and liability was settled on a percentage basis, the claim proceeding to an assessment of damages. The 8 day hearing raised various points of interest. In particular, it was claimed that because the Claimant was a drug user and may remain so in the future, he would require a more expensive care package than he would have needed, had he remained ‘clean’ of drugs. It was also claimed that he would continue to lack capacity and should therefore be able to claim the costs of deputyship or a personal injury trust.
The judge accepted the Defendant’s argument that the additional costs of care arising from drug use could not be recovered, pursuant to the illegality principle expressed by the Latin tag “ex turpi causa non oritur actio”. The judge also accepted the Trust’s argument that the vast majority of the claim for deputyship costs could not succeed for the related reason that the Claimant’s illegal drug use was the cause of his lack of capacity. A claim for a hydrotherapy pool was also rejected.