22 July 2016

Harman v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1162 ( QB ) – Clinical Negligence/obligation to pay private school fees

An NHS Trust has failed in an application for leave to appeal its obligation to meet continuing costs of private education caused by its breach of duty and previously funded by third party LEA.

In Harman v East Kent Hospitals NHS Foundation Trust [ 2015 ] EWHC 1162 ( QB ) , the Claimant’s parents sought damages on behalf of their son who was suffering from severe autism and cognitive impairment following admitted failure to diagnose his catastrophically low blood sugar levels at birth and the subsequent failure to inform the parents about the risk of lasting damage.

The Claimant requires specialist educational care and attends a specialist residential school for those with acute autism. In September, 2014, the LEA agreed to meet the funding of the Claimant’s school fees. It is anticipated that the Claimant will continue to attend the specialist school until the maximum permitted age of 25.

The parents made it clear that they would prefer the Defendant Trust as the tortfeasor to pay the educational costs, rather than the LEA.  There was no concern on the parents behalf that the LEA funding was not secure. It was simply their preference that the defendant trust should pay. 

Before Turner J the Defendant Trust contended that in the circumstances where the funding was guaranteed, neither the case of Peters v East Midlands SHA [ 2009 ] EWCA Civ 145, nor any other case was authority for the position that the Defendant Trust was liable for the continuing fees.

Turner J found for the Claimant. He referred to the decision in Peters , where the court upheld the Claimant’s right to choose damages rather than remain dependant upon the State. The Defendant Trust had a responsibility to meet the costs incurred by its breach of duty notwithstanding that a third party would have continued to meet the  costs should they have  been claimed from it. 

The Defendant Trust appealed. In an oral  application for leave to appeal  before Patten  and Floyd LJ and Mr Justice Baker on 14th June, 2016 leave to appeal was refused.