Court County Court (Liverpool)

Judgment Date 23 February 2024

Where Reported [2024] 2 WLUK 558

Judgment Subject: Negligence

Other related subjects: Social welfare; Health; Contracts; Torts

Keywords: Breach of contract; Care homes; Duty of care; Negligence; Residential care

Judge: Judge Peter Gregory

Counsel

For the claimant: Graham Sellers.

For the defendant: Rebecca Sutton.

Solicitor

For the claimant: Jackson Lees (Liverpool).

For the defendant: Lester Aldridge (Bournemouth).

Case Digest Summary

The primary purpose of a care home contract was to provide accommodation and support with the tasks of everyday life for individuals who were no longer able to live independently. However, the true purpose went beyond that, in that such a contract was also entered into on the basis that the provider would provide a safe environment for the person receiving the care and that they and their family would feel that they had the peace of mind, secure in the knowledge that the resident would be safely looked after.

Abstract

The claimant personal representative (C) sought damages for negligence and breach of contract in respect of services provided to his mother (M) by the defendant (D) whilst she was a resident at D's care home between October 2015 and her death in November 2016. 

C and his siblings had brought the claim on the basis that the standard of care provided by D was sub-standard, or grossly sub-standard. The contract for the provision of care services fell to be treated as including a term that D was under a duty to perform the services with "reasonable care and skill" by virtue of the Consumer Rights Act 2015 s.49. In the period that M was in the residential care home, D had been paid £36,943.01 by M. C relied on nine separate incidents to argue that the care provided to M during that time was inadequate and that she had suffered both neglect and abuse whilst a resident. The main incidents relied on were: that M had been found on the floor of the care home basement during the night, having accessed the stairwell and fallen (the first incident); that M had been found wandering, in a confused and upset state, wearing her slippers, by a passer-by who took her to a nearby pharmacy (the second incident); that M had again accessed the stairwell, although there was no fall in that instance and M was found, unharmed, sitting on a bed (the third incident). C also alleged instances of over-medication, and lack of medical care, as well as a number of more generalised complaints. The care home had been subject to unannounced inspections from the Care Quality Commission (CQC) in March 2016 and October 2016.

The CQC reports identified a clear downward trajectory in the quality of care provided with the overall rating dropping from 'requires improvement' in March 2016 to 'inadequate' in October 2016. D submitted that the nature and quality of its admitted breaches of contract were so insignificant as not to sound in damages, or anything more than nominal damages.

Held

Judgment for claimant.

It was true that the primary purpose of a care home contract was to provide accommodation and support with the tasks of everyday life for individuals who were no longer able to live independently. However, the true purpose went beyond that, in that such a contract was also entered into on the basis that the provider would provide a safe environment for the person receiving the care and that they and their family would feel that they had the peace of mind secure in the knowledge that the resident would be safely looked after. The CQC Reports that followed the March and October 2016 inspections had identified a clear downward trajectory in the quality of care provided at the care home. The first incident amounted to a significant and serious breach of duty that was likely to have been a genuinely frightening experience for M and an upsetting and unsettling one for her wider family. The injuries were more serious than had originally been described at the time by the home manager and the incident should have been raised as a safeguarding alert at the time that it happened, which it had not. The second incident represented another serious breach, the consequences of which could have been much worse. In respect of the third incident, the potential was clearly there for the outcome to have been much more serious. It was not the case that the admitted breaches of contract were so minor as to not sound in damages at all, or to attract an award of nominal damages only. Damages should be assessed by reference to Milner v Carnival Plc (t/a Cunard) [2010] EWCA Civ 389, [2010] 3 All E.R. 701, [2010] 4 WLUK 258, Milner followed. M had been fed, housed and cared for and some of the complaints relied on were isolated issues of short duration. Nonetheless, the fees paid to D should be discounted by approximately 20% (£7,500) to represent the diminution in value between what was promised and reasonably expected in terms of the standard of care, and the level of service that had actually been provided. Damages for distress and disappointment in relation to the first and second incidents were also awarded in the sum of £1,250 in respect of each incident, to reflect the undoubted anxiety and distress caused to M, but also to acknowledge the worry that had been felt by her family.