PERSONAL INJURY POINTS 6: HOW IS THE COURT GOING TO APPROACH THE COSTS OF ACCOMMODATION WHEN THE CLAIMANT HAS A REDUCED LIFE EXPECTANCY – & HOW DOES THE COURT DEAL WITH THIS ON AN APPLICATION FOR AN INTERIM PAYMENT?

The decision in Swift -v- Carpenter set out the approach the courts should normally take when a claimant needs to purchase accommodation because of their injuries.  However that judgment, expressly, left open issues relating to the approach the courts should take when the claimant has a limited life expectancy.  The sum awarded for the capital purchase will be much smaller.  This lack of clarity of approach can give rise to difficulties when a claimant is seeking an interim payment.  That issue was considered in the case we are looking at today.

“It is at least arguable that such a consequence may not in due course be considered by the trial judge to be reflective of the underlying principle that an award should constitute full and fair compensation and would result in a considerable shortfall between the purchase price of the house and the award allocated for accommodation.”

KEY PRACTICE POINTS

The issue of how the courts approach accommodation claims in a case with a claimant with limited life expectancy remains unresolved.  This case is useful in that it considers the likely approach of the courts and that any resolution of the problem will involve “full and fair” compensation.

THE CASE

Hill v East Kent Hospitals University NHS Foundation Trust [2025] EWHC 1241 (KB) Annabel Darlow KC, sitting as a Deputy High Court Judge.

THE FACTS

The claimant brings a clinical negligence action against the defendant, liability is admitted. The claimant sought an interim payment, primarily to enable her to cover the costs of alternative accommodation.

THE ISSUE IN RELATION TO ACCOMMODATION AND LIFE EXPECTANCY

The judge reviewed the rules and case law in relation to interim payments in detail.   One issue here was that the claimant has a limited life expectancy. This means that the Swift -v- Carpenter approach led to a much reduced award for the capital costs of purchase of the property.

THE JUDGMENT ON THE ACCOMMODATION ISSUE

38. The issue of the quantification of costs in respect of accommodation engages the question of how the guidance set out in Swift v Carpenter (2020) EWCA Civ 1295, as to the correct approach to damages for the additional capital cost of accommodation, are to be applied in a case involving a short life expectancy, of which this case is an example. Irwin LJ noted that the average span of a personal injury claim was around 43 years of future life and a paradigm case based upon a much shorter life expectancy produced a much greater reversionary interest. He observed that, ‘different considerations and arguments could be applied to that category of case. I make no further comment on that and should not be understood to express a view on it.’ (at [171]). Nevertheless, the overarching principles remain clear: at [205]; ‘The principles of law by which this court is bound can be summarised in two propositions: firstly, that a claimant injured by the fault of another is entitled to fair and reasonable, but not excessive, compensation. Secondly, as a corollary of that fundamental principle, in relation to the head of claim with which we are concerned, the award of damages should seek so far as possible to avoid a ‘windfall’ to a claimant, or more realistically to his or her own estate.

39. The life expectation of the Claimant is 12.24 years. A rigid application of the Swift guidance (on the calculations presented by the Claimant), would imply a reversionary interest of £459,546.49; this would represent 55% of the £835,000 purchase price of the Gables and a net damages figure of £375,453.51. It is at least arguable that such a consequence may not in due course be considered by the trial judge to be reflective of the underlying principle that an award should constitute full and fair compensation and would result in a considerable shortfall between the purchase price of the house and the award allocated for accommodation.

40. The accommodation costs relied on by the Claimant are calculated by reference to the application of the Swift guidance to the cost of the property. However, the Claimant contends that, had she been able to find a property for the lower purchase price as originally recommended by the Claimant’s expert, she would then have recovered in full the £491,000 costs of modification. In the circumstances pertaining at the time of the purchase, including the prevailing unsatisfactory conditions at Strode Park, the purchase of a more expensive property is said to be justifiable. The Claimant further seeks the purchase costs of the property, past running costs and running costs to trial, which, after discounts for conservative value, results in their overall figure of £863,760.20.

41. Whilst recognising that the Claimant will recover a sum towards her accommodation costs, the Defendant raises a number of issues in respect of the Claimant’s inclusion of the full capital cost of the Gables, namely that the Claimant is believed to have jointly owned a former home but there is an absence of information thereon; the discretion of the trial judge should not be fettered, and the Gables was substantially more expensive than the original assessment. The claim includes adaptation costs that have not been carried out and those adaptations that were carried out were not in accordance with the recommendations of the Accommodation expert and may in any event have been paid for by a grant. The necessity of an extension to an already sizeable property (at an estimated cost of £146,000) may be challenged at trial. As to past running costs, the Defendant disputes their recoverability, on the grounds that the accommodation was not in use by the Claimant. The predicted future costs are predicated upon an immediate move by the Claimant, which is unlikely for the reasons discussed earlier. The Defendant’s counter figure is £700,000.

42. The proposal advanced by the Claimant is an attempt to value the accommodation claim on an alternative basis, which takes into account the potential difficulties raised by the determination of the appropriate figure for a short life expectancy case within the framework of the Swift guidance, whilst seeking to mitigate the consequent shortfall by including a sizeable figure for modification costs, the majority of which will not in reality be expended upon the property. In due course, as ventilated by the Claimant, it may well be that discussion between the parties prompts an acceptable alternative approach to evaluation, but no such agreement has yet been reached.

43. In attempting to reach a conclusion as to the likely figure to be determined by trial judge, I am conscious that the correct approach to the determination of accommodation costs in a short life expectancy case has not been the subject of the necessary detailed or developed legal argument for the purposes of this application. Furthermore, evidence which the court may well require to reach a final conclusion is absent, as identified in the Defendant’s submissions. Whilst recognising that the Claimant has attempted a constructive solution, there is no clear justification for the inclusion of the notional value of alterations which were recommended on the basis of the purchase of a different, smaller property, even discounted at 20%, and the trial judge will wish to consider with care each of the Defendant’s contentions, summarised above. Taking as I must a conservative approach and recognising the significant limitations under which the court operates at this stage, the figure I am prepared to allow is £700,000.