Analysis
The claimant, who was born in 2013, was subject to a criminal assault by his father such that he needed to attend the defendant’s hospital which, unfortunately, failed to identify non-accidental injuries and discharged him home to the ‘care’ of his parents. A subsequent assault by his father caused devastating brain damage and resulted in a custodial sentence. The defendant admitted liability for the injuries sustained by the claimant through its breach of duty in failing to detect non-accidental injuries and then arranging for investigations to be carried out which would have enabled him to be taken into the protective custody of Social Services. As it was no longer appropriate for the claimant to remain in the ‘care’ of his father and mother (who was also convicted of an offence), he was looked after – albeit in inadequate accommodation – by his maternal grandmother who was appointed his litigation friend and guardian. An application was therefore made for an interim payment so as to enable an appropriate property to be bought for the family to move into where the claimant could be given proper care for his disabilities. The defendant agreed to make an interim payment of £600,000 but raised the point that, if the claimant were to die before a statutory will could be made on his behalf once he had attained 18, an intestacy would result and the interim payment, and the damages in general, would potentially accrue to his parents. An application had been made to the Court of Protection for the creation of a trust through which the claimant’s property could be held and accrue for others than his heirs on intestacy, but the question arose as to what should happen were he to die before the order was made.
Held (making the order for the interim payment):
While it was unlikely in practice for either of the parents to gain from their criminal activities, the defendant, as the partial guardian of public funds and taking a responsible attitude towards their position as such, had rightly brought this matter to the attention of the court so that it was appraised of the circumstances and was able to monitor the situation because of a risk which had been identified.
Obiter dicta: it was likely that the court would have the power, in the event of an application being made upon the death of the claimant, to make an order that the estate be distributed other than on the normal rules of intestacy upon the basis that should either of his parents inherit from him, that money would almost certainly be traced to the damages payable by the defendant as a result of the criminal acts of his parents and an order would be made that they should not gain from their unlawful acts. If the claimant were to die before the order was made by the Court of Protection approving the creation of the trust, the interim payment would effectively be repayable to the defendant subject to the claim for damages which the court could then make in the different circumstances which would apply – an order could be made for the money to be held pending an order from the appropriate court.
JUDGMENT MARTIN SPENCER J: [1] The claimant was born on [a date in] 2013, the second child to his mother and father, they having had a daughter, S, born on [a date in] 2012. Within a short period of the claimant’s birth, he was subject to criminal assault by his father such that when he …Continue reading "JXM v An NHS Trust [2020] WTLR 1327"