Illegality prevents recovery of Court of Protection costs by claimant

The recent judgment of Mr Justice Irwin in the case of AB (by his Litigation Friend CD) -v- Royal Devon & Exeter NHS Foundation Trust [2016] EWHC 1024 (QB) provides an example of the Court utilising the doctrine of ex turpi causa to prevent recovery of particular heads of loss by a claimant.

The case also includes a helpful analysis of the literature relating to calculating life expectancy in persons who have sustained spinal cord injuries.

The Claimant had pursued a clinical negligence claim against the Defendant NHS Trust. Due to the Trust’s failure to identify that the Claimant was developing a spinal abscess, he sustained a neurological damage to the spinal cord which left him paraplegic. The issue of liability had been compromised, it being agreed that the Claimant would recover 60% of the value of the claim.

Prior to the spinal cord damage, the Claimant had a troubled background, with history of extensive drug abuse, criminal behaviour and several custodial sentences; he was under the care of mental health services. There was also a previous mild head injury (unrelated to the spinal cord damage). At the time of trial, the Claimant had been to a drug rehabilitation centre and had been abstinent from drugs for about 2 ½ months.

The judge accepted that the Claimant lacked capacity at least until the commencement of his drug rehabilitation. It was further accepted that he maintained capacity for the purposes of the trial.

In terms of future capacity, the judge ruled that – even if the Claimant remained abstinent from ‘hard’ drugs – he was likely to lack capacity during the 12 months following trial to deal with the large sum of damages that he would be awarded. During this time, the Claimant would not be capable of dealing with the purchase and adaptation of a property, and purchase of large items of equipment and an adapted vehicle.

In the longer term, the judge found that the Claimant would retain capacity to deal with ongoing financial matters, provided that he remained abstinent of drug use. On the balance of probability, therefore, any lack of capacity after the 12 month period post-trial was likely to result from reversion to illegal drug use.

The Court accepted the Defendant’s argument that, during periods in which the Claimant’s incapacity was caused solely as a result of illegal drug use, the doctrine of ex turpi causa should prevent the Claimant from recovering damages in respect of Court of Protection expenses. Save for costs arising in the initial 12 month period post-trial, the Court made no award of damages in respect of either past costs or ongoing future costs related to the Claimant’s lack of capacity.

This case does not alter the wider principle that a tortfeasor must take his victim as he finds him. Irwin J commented that had the Claimant’s lack of capacity resulted from factors other than his substance misuse, the Defendant would have had no proper argument for seeking to exclude the consequential costs. However, the judgment does indicate that the Court is reluctant to award damages for losses arising from an individual’s own criminal acts. Insurers should be alive to the opportunity to raise this argument in appropriate cases.

The judgment also includes a helpful illustration of the Court’s treatment of scientific literature in relation to the issue of life expectancy in individuals who have sustained spinal cord injuries. Whilst such analysis is inherently heavily fact specific, Irwin J was referred to and considered a range of academic studies considering persons with spinal injuries in the UK, USA and Australia. Taking into account the available literature, the judge accepted that a reduction in life expectancy of 20% was appropriate in this case to reflect the spinal cord injury.

The Court then went on to consider the effect of the Claimant’s other health issues (including history of smoking and diabetes) and the risk that the Claimant may revert to future drug abuse. Taking all factors into account, the Court was prepared to make a finding that there was a significant reduction in the Claimant’s projected life expectancy of 58%.

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