JXM v An NHS Trust [2020] EWHC 919 QB

In the recent case of JXM v An NHS Trust [2020] EWHC 919 QB the Claimant (C) suffered abuse at the hands of his father and suffered fractured ribs as a result. The defendant’s (D) hospital failed to notice the fractures and C was discharged. Subsequently, C was once again rushed to hospital where it was revealed that he had suffered brain damage from being abused by his father. Sadly, C went on to suffer from cerebral palsy and epilepsy. C claimed damages against the NHS for failing to notice the non – accidental rib fracture which would have protected him from the on-going abuse at the hands of his father, which ultimately resulted in him suffering significant brain damage. C’s father was convicted of GBH and sentenced to 15 years imprisonment. C’s mother was also convicted of neglect and sentenced to 18 months imprisonment.

C’s grandmother was appointed as his guardian and C now lives in his grandparents’ home together with his mother and sisters. A report by Dr Mordekar and an assessment by Karen O’brien suggested that this property was inadequate for C and did not support his needs. Therefore, a significant interim payment was needed in order to buy a property for the family.  This would enable C to live comfortably in a house that was suitable for his needs. Importantly, it would allow for his therapies to take place in the home, provide a much-needed space of his own and ensure that he would not become a burden on the other family members. A suitable property was identified, and D agreed to make an interim payment of £600,000.00.

This raised an important issue since C was under the age of 18 at the time of the application and a statutory will was not able to be put in place on his behalf. If an interim payment was awarded, a property purchased with those funds, and C died before he turned 18, he would die intestate. This would raise the very real possibility that his abusive father could stand to benefit from C’s estate, benefiting directly from his crime through inheriting the damages award/property.

An application was made to the Court of Protection that any property to be held in a trust. It was presented to the Court, that if C passed away before the age of 18, it was intended that the property held in trust could be passed to someone else, other than his father and mother.

Mr Justice Martin Spencer addressed the issue in paragraphs 9 and 10 of his judgement.

In summary, it was decided that: if C died before the age of 18 and upon an application to the Court of Protection on his death, the Court would have the power to order that C’s estate be distributed in a manner other than the normal rules of intestacy, precluding C’s father from benefiting from his estate. This decision was founded on the principle that the origin of the damages would be directly linked to the actions of C’s father and he should not therefore gain any benefit from his crimes.

In paragraph 10 Mr Justice Spencer addressed what would happen if C died before the Court of Protection was able to make the trust order. In those circumstances, the interim payment would be repayable to D subject to the claim of damages which the Court would then make in the different circumstances that would apply. However, the Court could order that the money is held until an order from the intestacy Court or Court of Protection is made.

Mr Justice Spencer commented that although he did not believe that it was likely that the parents would gain from their crimes, he was aware that D had rightly bought this issue to the Court’s attention. The Court would now be able to observe the situation to ensure that the risk identified would not materialise.

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