On 21 April 2003 at about 6.50 a.m. Mrs. Lydia Sandford fell in the bedroom of her house at (“the House”). The House is in the area in respect of which the defendant, the Council of the London Borough of Waltham Forest (“the Council”), was and is the local authority. As a result of her fall Mrs. Sandford sustained a fracture of the proximal end of her right femur. She was taken to Whipps Cross Hospital, Leytonstone, London E11 on the day of the fall. Four days later the fracture was operated on and fixed internally. Thereafter, it seems, she made a satisfactory recovery, with the fracture healing well and not causing her any pain. However, Mrs. Sandford was in hospital for seven months. When she was fit for discharge she was not discharged to her home, but to a nursing home, Albany Nursing Home in Albany Road, Leyton (“the Nursing Home”). She remained in the Nursing Home from the date of her arrival, 17 November 2003, until her death on 18 October 2006. Mrs. Sandford was required to contribute towards the costs of her accommodation in the Nursing Home.

In this action Mrs. Sandford’s executors claimed on behalf of her estate as damages from the Council the sums contributed by Mrs. Sandford towards the costs of her accommodation in the Nursing Home. They also claimed damages in respect of the pain and suffering and loss of amenity caused to Mrs. Sandford by the fracture of her right femur.

The alleged basis of the claims of the estate of Mrs. Sandford against the Council was that Mrs. Sandford fell on 21 April 2003 because she had not been provided by the Council with equipment called cot-sides. It was common ground that at the date of the fall Mrs. Sandford, who was born on 14 April 1912, was aged 91 years and not in good health. It was also common ground that Mrs. Sandford was at that time a person in respect of whom the Council owed a statutory duty by virtue of National Health Service and Community Care Act 1990 s.47(1) (“NHS&CCA 1990 s.47(1)”) to assess her needs. It will be necessary to return to NHS&CCA 1990 s.47(1) and related provisions later in this judgment. However, the Council in fact, acting by an occupational therapist called Martelie Peach, undertook an assessment of Mrs. Sandford on 26 February 2003. Ms. Peach recommended that the Council provide various aids to Mrs. Sandford, including cot-sides. Some of the items of equipment recommended were provided relatively quickly, but the cot-sides had not been provided by the date of the fall. They were in fact provided on 24 April 2003. The case for Mrs. Sandford’s executors in this action was that she fractured her right femur on 21 April 2003 because she fell out of bed, and that she would not have fallen out of bed if the cot-sides had been provided by 21 April 2003.

The justification for the claims for damages in respect of the contributions made by Mrs. Sandford towards the costs of her accommodation in the Nursing Home was said to be that, prior to the fall, Mrs. Sandford had been living in the House, albeit assisted by care provided 24 hours a day by members of her family on a rota basis and items of equipment provided by the Council. The effect of the fracture and the lengthy stay in hospital following it, it was contended, was that Mrs. Sandford was no longer able to live in the House with assistance as previously, and had had to be admitted to the Nursing Home. Thus it was asserted that the need to incur the cost of contributions towards accommodation fees in the Nursing Home was directly referable to the fall, which in its turn was directly referable to the absence of the cot-sides recommended by Ms. Peach.

The case for the Council was that Mrs. Sandford had not in fact fallen out of bed on 21 April 2003, but had fallen whilst getting out of bed. As the cot-sides were not intended to prevent Mrs. Sandford leaving her bed, it was said that the absence of the cot-sides was in fact irrelevant to the fracture sustained by Mrs. Sandford. I shall return to the evidence as to how it was that Mrs. Sandford actually came to suffer the fracture of her femur. However, it is right to emphasise that, although it was contended on behalf of the Council that the lack of cot-sides was irrelevant to her injury, an important point made on behalf of the Council was that it was in fact for the claimants in this action to prove, on the balance of probability, that Mrs. Sandford would have avoided her injury if cot-sides had been provided, and not for the Council to prove the contrary. The significance of that point was that, as I shall explain, the quality of the evidence as to how Mrs. Sandford came to fall was not very satisfactory.

A factual issue also arose from the fact, not in itself in dispute, that in May 2003, whilst in Whipps Cross Hospital, Mrs. Sandford was diagnosed as having suffered a stroke. While it appeared that actually she had not suffered a stroke, as from about May 2003 Mrs. Sandford was almost totally blind. It was suggested on behalf of the Council, but disputed on behalf of the executors of Mrs. Sandford, that as a result of her blindness Mrs. Sandford would have been unable to continue to live in the House in any event. The relevance of the point was that, so it was contended on behalf of the Council, it was for the claimants to prove, on a balance of probability, both that, but for her fall, Mrs. Sandford would not have entered the Nursing Home when she did, and what costs she incurred as a result of entering the Nursing Home which she would have avoided, but for the fall. The latter involved, it was said, proving on a balance of probability when Mrs. Sandford would have entered the Nursing Home, but for the fall.

Notwithstanding the important factual issues as to the circumstances in which Mrs. Sandford came to fall on 21 April 2003 and as to the effects of her blindness on her ability to continue to live in the House, the main focus of the trial before me was on the question whether, assuming that I found in favour of the executors of Mrs. Sandford on the disputed factual questions, Mrs. Sandford had any cause of action against the Council anyway. Since that was the issue upon which the greater part of the trial was spent, it is convenient to consider it next in this judgment.

My attention was drawn to a number of authorities relevant to the issue whether Mrs. Sandford had any cause of action against the Council for failing to provide cot-sides to her before her fall. Before turning to them it is necessary to set out the material parts of the statutory provisions relating to the making of assessments of persons in the position of Mrs. Sandford and the provision of aids and equipment to such persons. The obligations of a local authority to undertake assessments and to provide aids and equipment arise solely as a result of Parliamentary enactment.

For present purposes it is convenient to start with NHS&CCA 1990 s.47(1). One can ignore the references to sub-sections (5) and (6).

The expression “community care services” is defined for the purposes of Part III of National Health Service and Community Care Act 1990 , which includes s.47, in s.46(3) as

Part III of National Assistance Act 1948 includes s.29. What is material for present purposes is that s.29(1), as amended, is in these terms:-

The final piece in the jigsaw of the legislative provisions is Chronically Sick and Disabled Persons Act 1970 s.2, as amended. So far as is relevant to the issues in this action the material provisions of s.2, as amended, are:-

So far as is material to the issues in this action, the effect of the provisions which I have set out is that the Council, as the local authority for the area in which Mrs. Sandford lived before she was admitted to hospital, was bound to assess her needs for practical assistance in her home and for the provision of additional facilities designed to secure her greater safety, comfort or convenience in her home, because she was substantially and permanently handicapped by illness, and was then bound to supply what was required to meet those needs.

In the Amended Particulars of Claim in this action reference was made to the provisions which I have quoted, and also to National Health Service Act 1977 Schedule 8 paragraph 3(1). I do not think that the latter provision is relevant to any issue which I have to determine, as it is concerned with the provision of home help and laundry facilities.

It was common ground before me that the Court of Appeal decided in Wyatt v. Hillingdon London Borough Council (1978) 76 LGR 727 that the provisions of National Assistance Act 1948 s.29 and Chronically Sick and Disabled Persons Act 1970 s.2 did not give rise to any statutory duty actionable at the suit of a private individual. The leading judgment was that of Geoffrey Lane LJ. At page 733 he observed:-

Mr. Andrew Warnock, who appeared on behalf of the Council, emphasised that passage from the judgment of Geoffrey Lane LJ. He reminded me that the substance of it had been approved by the House of Lords in O’Rourke v. Camden London Borough Council [1998] AC 188. In that case the issue was whether a homeless person had a private law cause of action for alleged breach of Housing Act 1985 Part III. However, before coming to the observations of Lord Hoffmann, who gave the only substantive speech in that case, upon which Mr. Warnock relied, it is convenient, since Lord Hoffmann himself referred to them, to consider the observations of Lord Browne-Wilkinson in X v. Bedfordshire County Council[1995] 2 AC 633 at pages 731-732. In the latter case the principal issue was whether the various claimants had private law causes of action for alleged breaches by local authorities of statutory duties in the areas of child protection and education. What Lord Browne-Wilkinson said was:-

In O’Rourke v. Camden London Borough Council at pages 193 – 194 Lord Hoffmann was concerned with indications in Housing Act 1985 Part III contrary to the intention of Parliament being that private individuals should be able to sue for alleged breach of statutory duty. He said:-

Mr. Robert Sowersby, who appeared on behalf of the executors of Mrs. Sandford, sought to avoid the effect of accepting that the Court of Appeal in Wyatt v. Hillingdon London Borough Council had determined that there was no private law right of action for breach of the statutory duties arising under National Assistance Act 1948 s.29 or Chronically Sick and Disabled Persons Act 1970 s.2 by contending that the Council had owed to Mrs. Sandford a duty of care at common law, once it had assessed what equipment or aids Mrs. Sandford needed, to supply that equipment or those aids within a reasonable time. He submitted that it had not been decided in Wyatt that there could be no common law duty of care in a case like the present. Geoffrey Lane LJ had considered, at page 734, the contention in that case that a common law duty of care had been owed, and had concluded that there was no common law duty of care. However, contended Mr. Sowersby, Geoffrey Lane LJ had been at pains to limit his observations to the facts of the case before him. What he said was:-

Both Mr. Warnock and Mr. Sowersby reminded me of passages in the speech of Lord Hoffmann in Gorringe v. Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, but for different purposes.

Mr. Warnock wanted me to notice the comment of Lord Hoffmann at paragraph 25 on page 1065 about the case of O’Rourke:-

The submission of Mr. Warnock was that, in effect, what Lord Hoffmann there meant was that it would be ridiculous for the Court to hold that breach of a particular statutory duty was not actionable by a private individual and then produce exactly the same result as if it had been held that the breach of statutory duty was actionable by finding a duty of care at common law in precisely the same terms as the statutory duty. That submission, in my judgment, is plainly correct, as to the meaning of the observations of Lord Hoffmann. I respectfully agree with the sentiments of Lord Hoffmann, which, in my view, obviously represent both common sense and the law.

On the other hand, Mr. Sowersby emphasised what Lord Hoffmann said in paragraph 38 at pages 1068 – 1069:-

Mr. Warnock submitted that it was as absurd in the present case for the Council to have been under a common law duty of care to provide cot-sides within a reasonable period of time as it would have been for the council in O’Rourke to have been under a common law duty of care to house the claimant in that case. He contended that, in substance, the duty of care contended for in this case was simply to supply equipment which the Council was bound to supply by virtue of Chronically Sick and Disabled Persons Act 1970 s.2, and that the introduction of the concept of that being done within a reasonable time did not affect that substance.

Mr. Sowersby, however, submitted that the duty for which he contended was not in substance the same as the statutory duty imposed on the Council by Chronically Sick and Disabled Persons Act 1970 s.2. He said that the duty for which he contended arose only at the point at which the Council had decided how to perform its statutory duty – that is to say, what aids and equipment to supply and had informed Mrs. Sandford of what was going to be provided. He submitted that at that stage the Council was in the same position as a charity would have been, if it had been approached for aids and equipment by Mrs. Sandford, and had agreed to supply such without payment. In those circumstances, Mr. Sowersby asserted, the charity would have assumed duties of care to Mrs. Sandford to supply the proffered aids and equipment, and to do so within a reasonable time.

Both Mr. Warnock and Mr. Sowersby reminded me that in X v. Bedfordshire County Council at page 739 Lord Browne-Wilkinson observed:-

In his written skeleton argument Mr. Warnock submitted that:-

Mr. Sowersby responded to the points made in the passage which I have quoted from the written skeleton argument of Mr. Warnock in a “Claimants’ Further Skeleton Argument”. He said:-

In support of his submissions that a duty of care existed at common law to provide the cot-sides within a reasonable time Mr. Sowersby relied on two cases in particular. One was the decision of the Court of Appeal in Kent v. Griffiths [2001] QB 36. The other was the decision of the Court of Appeal in A v. Essex County Council [2004] 1 WLR 1881.

In Kent v. Griffiths an ambulance failed to attend an emergency call within a reasonable time. The trial judge found that the delay in attendance had exacerbated the injuries of the claimant. He also found that the ambulance should have arrived with the claimant at least 14 minutes earlier than it did. The delay in the arrival of the ambulance was unexplained. The only substantive judgment in the Court of Appeal was that of Lord Woolf MR. At paragraph 27 Lord Woolf referred to an earlier decision to which Slade LJ had been a party:-

At paragraph 47 of his judgment Lord Woolf addressed the circumstances of the case before him:-

The material facts of the case thus seem to be that an ambulance was requested, it was emphasised to the ambulance control that the ambulance was required urgently and it was agreed that an ambulance would be sent. In those circumstances the legal analysis seems to be that by agreeing to send the ambulance the relevant authorities assumed a relationship of proximity to the claimant which required it to provide the ambulance as soon as was reasonably possible. Lord Woolf’s comments in the passages which I have quoted seemed to recognise that, had there been some question as to the ability of the authorities to provide the ambulance, probably a duty of care in tort would not have been owed. The decision does appear to depend upon very specific facts.

Mr. Warnock submitted that the key to the decision in Kent v. Griffiths was to be found in paragraph 45 of the judgment of Lord Woolf:-

In A v. Essex County Council the issues concerned information to be provided by an adoption agency to prospective adopters concerning the child which it was proposed should be placed with the prospective adopters with a view to adoption. So far as is material, the issues and the view of the Court of Appeal on the second issue, which is the one relevant in this action, can be found in this passage of the judgment of the Court, delivered by Hale LJ, at page 1899:-

Mr. Sowersby submitted that the decision on the second issue in A v. Essex County Council was analogous to the situation in the present case. The Council had determined to provide the cot-sides to Mrs. Sandford, but did not do so before her fall. An obvious difference between that case and this, however, is that in A v. Essex County Council the information which the adoption agency had decided to provide never was provided, whilst in the present case the cot-sides were provided, but just not before the fall on 21 April 2003. Another difference seems to be that in A v. Essex County Council the adoption agency was not compelled by statute to provide particular information to prospective adopters, but had a discretion as to what information to provide. In the present case the Council had no real discretion. It was bound to undertake an assessment – obviously properly – and was then bound to supply the aids and equipment which had been assessed as being necessary. It may also be that the decision in A v. Essex County Council depended critically upon the relationship between an adoption agency and prospective adopters.

In answer to the reliance placed by Mr. Sowersby on the decisions in Kent v. Griffiths and A v. Essex County Council Mr. Warnock drew to my attention a recent decision of the Court of Appeal, Rowley v. Secretary of State for Work and Pensions [2007] 1 WLR 2861. In that case claimants sought to contend that the Child Support Agency, for the work of which the Secretary of State was responsible, owed a duty of care at common law to them to carry out assessments provided for by Child Support Act 1991 timeously and with reasonable care and skill. In the course of delivering the leading judgment, Dyson LJ considered the issue whether the Secretary of State had assumed voluntary responsibility to the claimants as to the manner in which and the timing at which assessments were made. He said, at pages 2876 – 2877:-

Mr. Warnock submitted, rightly as it seems to me, that what was decided in Rowley which is material to the issues in the present case is that the undertaking by a public body of a task which it is compelled to undertake by statute cannot, of itself, found a duty of care at common law as to the manner or timing of the undertaking of the task because the body undertaking the task is not, by undertaking it, voluntarily assuming responsibility to anyone who may be affected by how that task is undertaken. Mr. Warnock also submitted that in the present case the Council did not assume responsibility voluntarily to Mrs. Sandford. It was compelled by NHS&CCA 1990 s.47(1) to undertake the assessment which Ms. Peach in fact undertook on 26 February 2003. It was then compelled by Chronically Sick and Disabled Persons Act s.2 to provide to Mrs. Sandford the aids and equipment which it had assessed should be supplied to her. I accept those submissions also.

In my judgment Mr. Warnock was correct in submitting that the duty of care for which Mr. Sowersby contended was in substance performance of the statutory duty arising under Chronically Sick and Disabled Persons Act 1970 s.2 to supply necessary aids and equipment to Mrs. Sandford. The complaint advanced against the Council was not properly characterised, as it seems to me, as a failure to provide the cot-sides within a reasonable time. Rather it was a failure to supply them at all before Mrs. Sandford fell. Time, as such, was immaterial. If the cot-sides had been supplied on 20 April 2003, it may be that it could still have been said that they had not been supplied within a reasonable time, but it could not sensibly have been contended that the Council was thereby in breach of a duty of care. The damage which it was contended that Mrs. Sandford sustained was said to have been suffered because the cot-sides had not been supplied, not because they were supplied later than they might have been.

It follows that I find that the Council did not owe to Mrs. Sandford the duty of care alleged to found the claims against the Council pursued before me both because the duty contended for was in substance identical to a statutory duty held in Wyatt v. Hillingdon London Borough Council not to be actionable at the suit of a private individual and because, in any event, in performing its duties under Chronically Sick and Disabled Persons Act 1970 s.2 the Council was not voluntarily assuming any responsibility to Mrs. Sandford, but doing that which it was required by statute to do.

I have no difficulty in recognising that a local authority, like the Council, could assume a duty of care at common law in the course of performing its statutory duties under National Assistance Act 1948 s.29 and Chronically Sick and Disabled Persons Act 1970 s.2. In Wyatt Geoffrey Lane LJ gave examples of the sort of cases in which a duty of care at common law might be owed – the home help dropping the patient or a defective bed being supplied. The analysis of Lord Hoffmann at paragraph 38 of his speech in Gorringe is entirely conventional and well-established. It is not inconsistent with the passages to which Mr. Warnock drew attention concerning the circumstances in which a private law right of action for breach of statutory duty would not be found to exist. The application of the principles explained by Lord Browne-Wilkinson in X v. Bedfordshire County Council at page 379 explain the comment of Lord Hoffmann at paragraph 25 of his speech in Gorringe on the decision in O’Rourke. What is important in every case in which it is contended that a person under a statutory duty in respect of which a private right of action for breach does not exist also owes a duty of care is to consider exactly what it is said that due performance of the duty of care involves. If it is to exercise some discretion in a particular way, the likelihood is that the common law duty of care contended for does not exist. On the other hand, if the alleged duty of care is to undertake with care and skill what the relevant authority has decided to do, rather than being compelled by statute to do, a duty of care may be found to exist. Plainly these two scenarios are far from being the only possible ones.

In the present case it seems to me, with all respect to Mr. Warnock, that his attempt to distinguish, for the purposes of the question whether the Council owed a duty of care at common law to Mrs. Sandford, between Ms. Peach and the Council, was both unreal and irrelevant. If it mattered, Ms. Peach attended Mrs. Sandford in order to make the assessment for which NHS&CCA 1990 s.47(1) provided and the making of that assessment was a duty of the Council. If Ms. Peach was not an employee of the Council, she was at least its agent for the purposes of making the assessment. Why this did not in fact matter was because, as Mr. Warnock himself submitted, no complaint was made about the assessment or how it was carried out. While I do not have to decide these questions, and the points have not been argued, I am inclined to the view that Ms. Peach did owe a duty of care at common law to undertake her assessment with reasonable care and skill, and that the Council would have been vicariously liable for any breach of that duty. In fact, of course, the complaint actually made was about the failure of the Council to deliver the cot-sides.

I also reject the submission of Mr. Warnock that the imposition of the duty contended for, if otherwise appropriate, would somehow be inconsistent with the statutory scheme governing the provision of aids and equipment to those falling within the scope of National Assistance Act 1948 s.29(1). What in fact was contended for was presented as performance with reasonable care and skill of a decision made in accordance with the statutory scheme. The duty contended for, to deliver the cot-sides within a reasonable time, would not cut across the statutory scheme or open any floodgates. It would be specific to the circumstances of the present case, and it may be that in the future there would be few, if any, similar cases.

However, where the duty of care contended for did run into difficulty, as it seems to me, quite apart from the grounds upon which I have already indicated that I find that there was no such duty, was in relation to what performance of the duty was said to involve. Duties of care ordinarily regulate the manner in which something is done. In some circumstances a duty of care may require a person to do something, but usually it imposes an obligation to take care when doing something which the party under the duty has voluntarily resolved to undertake. So far as I am aware, it has never been held that a person owed a duty of care at common law to do something at one point in time as opposed to doing it at another, when neither of these points is, in effect, immediately, as in Kent v. Griffiths. There is, I think, plainly a problem in relation to imposing a duty of care in circumstances in which, in order to determine whether any duty of care at all was owed an investigation is necessary. As Lord Woolf MR explained in his judgment in Kent v. Griffiths, there was no problem in that case because there was no need to consider resources. Ambulance control had said that it would send an ambulance. However, if there had been a need to consider resources, Lord Woolf suggested that that fact of itself would lead to the conclusion that no duty of care was owed.

In the present case, in order to reach a conclusion as to what would have been a reasonable period for the Council to have taken to deliver the cot-sides to Mrs. Sandford, one would need to know at least whether cot-sides of the appropriate size and type were held in stock or would have to be obtained. If they were held in stock, one would need to know where they were held, that is to say, how far from the House, what resources were available to deliver the cot-sides to her and what were the other calls upon those resources. If the cot-sides were not held in stock, one would need to know, perhaps, how many manufacturers of cot-sides there were, whether the prices of equivalent cot-sides differed, and if so, by how much, and what delivery times would have been quoted by any possible suppliers. It could be necessary to consider the balance between a cheaper price and a longer delivery time. All of this, in my judgment, leads to the conclusion that the nature of the supposed common law duty of care, to deliver cot-sides within a reasonable time, is not a suitable one to be the subject of a duty of care in tort, quite apart from the other objections to it which I have accepted. It is a type of obligation which is really only fit to be the subject of a contract between parties. While Mr. Warnock raised the issue of how breach of the supposed obligation could be assessed under the heading of breach, it seems to me that the problem goes to the root of whether it is fair, just or reasonable to impose a duty of care which has inherent in it this problem. As I have said, I think that the answer was given by Lord Woolf MR in Kent v. Griffiths.

My conclusion, therefore, is that, even if the contested facts were resolved in favour of the executors of Mrs. Sandford, the claims against the Council fail. However, it is appropriate to return to those contested facts.

Mrs. Sandford herself made no formal witness statement before her death about how she came to fall, notwithstanding that the claim form in this action was issued on 22 June 2006, about four months before her death. The original Particulars of Claim served on 2 October 2006 bore a statement of truth signed not by Mrs. Sandford, but by her son, Geoffrey, the first claimant.

An account of how Mrs. Sandford came to fall was recorded by a triage nurse at Whipps Cross Hospital on the occasion of her admission to hospital at about 7.50 a.m. on 21 April 2003. What was written was:-

No one was in her bedroom with Mrs. Sandford at the time she fell. Her son, Geoffrey, was in the House. His account of what he knew about what happened he set out in his first witness statement, dated 28 October 2007:-

From that account it did not appear that Mr. Geoffrey Sandford accompanied his mother to the hospital in the ambulance. However, he was cross-examined about the note made by the triage nurse which I have quoted. He said that he had spoken to the triage nurse, but had not said that his mother had fallen whilst getting out of bed. Thus it appeared that Mr. Sandford had accompanied his mother to hospital. However, he did not volunteer what he did say to the triage nurse. Mr. Sandford told me that his mother “would not have” told the triage nurse that she had fallen getting out of bed. He did not tell me what, if anything, Mrs. Sandford had said to the triage nurse in his presence and hearing.

It is, I think, normal when a person who has suffered injury presents himself or herself in the Accident and Emergency Department of a hospital, for that person to be seen first by a triage nurse. The role of the triage nurse is, essentially, to obtain information, by enquiry and inspection, to enable an assessment to be made of the urgency with which the patient needs to be treated. Part of the process is to enquire as to how the presenting injury was sustained. The nature of the accident could be relevant to the nature or timing of the appropriate treatment. It seems obvious that the triage nurse in this case asked how Mrs. Sandford had sustained her injury to her leg. It appears equally obvious that the triage nurse understood that what had happened was that she had fallen while getting out of bed. It is possible that the triage nurse misunderstood what was said, but it is not especially likely, as what was written down was a simple answer to a routine question. The only answer to the question why the triage nurse wrote down what was recorded offered by Mr. Geoffrey Sandford was that he had not conveyed that information and his mother “would not have”. That is not satisfactory. The triage nurse must have got the information from somewhere. Absent misunderstanding, what was written down was what the triage nurse was told. Mr. Sandford did not tell me in his evidence what he did say to the triage nurse or what his mother said in his presence. In particular he did not say that either of them actually told the triage nurse that Mrs. Sandford broke her leg falling out of bed. If there had been that evidence, there would have been a basis for rejecting the accuracy of the record of the triage nurse on the grounds of misunderstanding.

I have to say that I did not find Mr. Geoffrey Sandford to be a very satisfactory witness. It seemed to me that his evidence was influenced by a considerable degree of animosity towards the Council and that this tempted him to present his evidence in terms most calculated to improve the prospects of success of the claims in this action or to disparage the Council and its officers. There were a number of examples of this, of which some are mentioned in the remainder of this judgment. The consequence is that I did not feel that I could accept the evidence of Mr. Sandford on any contested issue.

At paragraph 3 of his first witness statement Mr. Sandford explained what his mother had been able to do before her fall in this way:-

On the assumption that what Mr. Sandford said about his mother’s ability to get out of bed in his first witness statement was correct, the account of how Mrs. Sandford fell set out by the triage nurse was not in fact inconsistent with the evidence of Mr. Sandford at paragraphs 13 to 18 inclusive of his first witness statement. Mr. Sandford said that, before he heard the thump, which must have been his mother falling to the floor, he had heard her moving. He plainly could not say whether she was moving because she was trying to get out of bed or whether she was moving whilst asleep. However, a movement loud enough to attract attention was perhaps more likely to have been undertaken whilst awake rather than to have been something like turning over in bed.

Without any proper foundation for rejecting the accuracy of the note of the triage nurse, in my judgment it is appropriate to accept that it set out correctly what the triage nurse was told either by Mr. Geoffrey Sandford or by his mother. As such, it seems to me that it amounts to the best evidence of how Mrs. Sandford came to fall. Consequently I find that she fell whilst getting out of bed.

Mr. Sowersby submitted that that conclusion, if I reached it, did not, of itself, mean that the claim had to fail, because there was evidence that, if cot-sides had been provided, Mrs. Sandford would in fact have been incapable of having overcome them to escape from her bed, had she sought to do so. Logically, of course, Mr. Sowersby was correct, if I accepted the evidence that Mrs. Sandford would have been incapable of getting out of her bed over cot-sides.

It was therefore necessary to consider the evidence as to what in fact Mrs. Sandford was able to do as at 21 April 2003 relevant to her ability to get out of bed over cot-sides. An aspect of that was plainly what sort of obstacle the cot-sides would have represented.

There was no satisfactory evidence of the nature of the cot-sides. No cot-side was produced in court. No photograph or diagram of a cot-side was put in evidence. There was no verbal description of a cot-side in any witness statement. The only evidence of what sort of a thing a cot-side was and what sort of an obstacle to the movement of Mrs. Sandford it would have represented as at 21 April 2003 was elicited from Mr. Geoffrey Sandford in re-examination. He was asked to describe the cot-sides which were delivered on 24 April 2003, but which were never used. He told me that a cot-side was the length of a bed, stood some 12 inches high, had some sort of padding on the inner side and was adjusted to permit someone in bed to get out. I was not clear from his account how a cot-side was secured, but I imagine that the part which Mr. Sandford told me stood 12 inches high stood proud of the surface of the bed by that amount. Unsurprisingly Mr. Sandford told me that his mother would not, in his opinion, have been able to get out of bed on her own if a cot-side had been in place. Her bed, he told me, was placed against the wall on one side, so that in fact only one cot-side needed to be fitted.

There was a certain amount of contemporaneous documentary evidence as to the abilities of Mrs. Sandford as at about 21 April 2003. A person not identified during the trial spoke on the telephone to Mr. Richard Boateng of the Social Services Department of the Council on 4 February 2002 concerning Mrs. Sandford. A standard form used by the Social Services Department to record the needs of persons with disabilities was completed by Mr. Boateng. Mr. Geoffrey Sandford was asked about the information recorded on the form. He contended that someone from the Social Services Department must have telephoned his mother. I think the suggestion was that his mother had been caught off-guard and had conveyed information which was not accurate. However, it was plain from the face of the form that Mr. Sandford could not possibly be right about that. Question 5 was, “Are you able to speak to us using the telephone?” The answer recorded was “No. Incoherent can’t communicate”. Clearly whoever spoke to Mr. Boateng was someone acting on behalf of Mrs. Sandford, not her herself. Moreover, a telephone number was recorded on the form, and a note made, “Carer available on the contact number to respond to phone calls”. As completed, the form recorded that Mrs. Sandford was deaf and blind, that she needed help with getting to the toilet, getting on and off the toilet, getting to bed, getting in and out of bed, using a wheelchair, getting up from a chair, cooking, and dressing/undressing. All of this information was recorded in answering tick boxes. It was also recorded, in a space left for specific information, that Mrs. Sandford used a Zimmer frame whilst walking and that it had to be guided on account of her sight problem. A question asked, “Tell us about the main difficulties you are experiencing and how you think we can help”. The specific answer recorded was:-

Apart from the suggestion that Mrs. Sandford had been caught off-guard when giving the information recorded by Mr. Boateng, I did not understand Mr. Geoffrey Sandford to dispute the accuracy of any of what was recorded, apart from the reference to the use of the Zimmer frame. He appeared, however, to suggest that the condition of his mother in February 2002 was the result of some misdiagnosis of her medical condition and the prescribing of inappropriate medication which produced the problems recorded.

A copy of the visit report form completed in manuscript by Ms. Peach on the occasion of her visit on 26 February 2003 was put in evidence. In a section of the form entitled, “Medical conditions reported by client”, she noted, “Multiple CVA, Partially sighted, Hard of hearing”. In a section of the form entitled “Physical effect” she wrote, “mobilises with ZF [Zimmer frame] / assist – 1, diff – WC transfers, bed, stairlift insitu”. Mr. Geoffrey Sandford accepted that at the date of the visit his mother did have a stairlift in the House. He did not suggest, other than by what I have quoted from paragraph 3 of his first witness statement, that his mother did not have difficulties with transfers to the lavatory and to bed. However, he vigorously denied that his mother ever used a Zimmer frame before her fall. His evidence on that point was supported by that of his sisters, Mrs. Maureen Scherer, Mrs. Gillian Pearson, and Mrs. Sylvia Burchett, and by his brother, Mr. David Sandford. The effect of the evidence of Mrs. Pearson in cross-examination was that Mrs. Sandford moved around the House being guided by pieces of furniture or hand rails or the assistance of one of her children. While it seems curious that Ms. Peach, whose function was to assess what aids and equipment Mrs. Sandford needed, should have been in error in recording that she used a Zimmer frame, I accept, in the light of the evidence of Mr. Geoffrey Sandford’s siblings, that Ms. Peach was mistaken about that. I accept the evidence of Mrs. Pearson as to how her mother was able to move about.

It was not in dispute that Mrs. Sandford’s children provided her with care 24 hours per day from about October 2002. I think that it was also not in dispute that from that time her condition continued to deteriorate.

The contemporaneous written evidence and the facts not in dispute seem to me to show that Mr. Geoffrey Sandford overstated his mother’s abilities prior to her fall in paragraph 3 of his first witness statement in suggesting that her only real problem was in relation to cooking. However, as to whether she would have been able to get out of bed on 21 April 2003, if a cot-side had been fitted, there seems to me to be no reliable evidence. For the reasons which I have given I do not feel able to accept the opinion of Mr. Geoffrey Sandford on the point. If Mrs. Sandford had been as spry as he would have it in paragraph 3 of his first witness statement, she might well have been able to get out of bed with a cot-side fitted. Even taking the more pessimistic view I do of the abilities of Mrs. Sandford as at 21 April 2003, it is not obvious that she would not have been able to get out of bed despite a cot-side being fitted.

On 13 October 2004 Mr. Howard Smith, a consultant orthopaedic surgeon, saw Mrs. Sandford for the purposes of preparing a report (“the Smith Report”) on her condition. In the Smith Report Mr. Smith commented, “I have not seen any General Practitioner’s records and these are likely to be particularly helpful in giving an indication of her pre-accident condition”. I feel in exactly the same position, namely of lacking the evidence to make an accurate assessment of Mrs. Sandford’s pre-accident abilities.

In the result, I accept the submissions of Mr. Warnock that it was for the claimants to prove, on the balance of probability, that Mrs. Sandford would not have sustained injury if a cot-side had been fitted to her bed on 21 April 2003, and that they have failed to do so.

The evidence which was put before me in relation to the ability of Mrs. Sandford to have continued to have lived in her own home, supported by members of her family, but for her fall on 21 April 2003, was not very satisfactory.

I have identified the members of the family who gave evidence before me. Of those, Mr. David Sandford, because of his own personal circumstances, was not much involved in caring for his mother. The others told me of what they had done for their mother before her fall and of their desires and intentions to continue to look after her for as long as possible. I pay tribute to the sterling work which they all undertook in looking after their mother. I have no doubt that they wished to continue to look after her as long as was feasible. I recognise that each felt keenly the promise which he or she had given to Mrs. Sandford to look after her. However, the question is, but for the fall, for how long would it have been practical for family members to have continued to care for Mrs. Sandford in the House.

One obvious question was why, given that they all wanted to continue to look after their mother in the House, members of the family did not do so once she was fit for discharge in November 2003.

Mr. Geoffrey Sandford told me in cross-examination that the reason his mother was not discharged home from hospital was that the Social Services Department of the Council refused to permit it. A more dispassionate account was given by Mrs. Burchett, namely that representatives of the Social Services Department and staff in the hospital advised strongly against it on the grounds that the family could not give Mrs. Sandford the care she deserved. It appears that the family accepted that advice.

The suggestion on the part of the claimants then had to be either that the advice given that Mrs. Sandford should be discharged to a nursing home was not good advice or that, but for the fall on 21 April 2003, family members would have been able to continue to look after Mrs. Sandford in the House. Mr. Geoffrey Sandford’s view seemed to be that the advice given by the Social Services Department was not good advice. However, it seemed that the other members of the family who gave evidence did not adopt such an extreme position. The real issues seemed to be whether, but for the fall, it would have been necessary for Mrs. Sandford to have entered the Nursing Home when she did, and, if not, when, on the balance of probability, it would have been necessary for her to enter the Nursing Home.

At the trial it was accepted that it would have been necessary for Mrs. Sandford to have entered the Nursing Home in any event on 1 June 2006 as a result of the deterioration in her condition by that date.

On behalf of the Council, Mr. Warnock relied, in support of his submission that, even without the fall on 21 April 2003, Mrs. Sandford would have had to have entered the Nursing Home on 17 November 2003, on the evidence of Dr. W.J.K. Cumming, a consultant neurologist who never examined Mrs. Sandford. Dr. Cumming was consulted after the death of Mrs. Sandford on the question whether the supposed stroke which Mrs. Sandford had sustained in May 2003 was a consequence of the fall on 21 April 2003. Dr. Cumming considered the medical notes only and reached the conclusions that in fact Mrs. Sandford had not sustained a stroke and that the cause of the deterioration in her sight noted in May 2003 was not a stroke, but something else. He did not suggest an alternative cause. Subsequently he was asked a question on behalf of the Council about admission to a nursing home. He set out the question and his answer in a letter dated 21 January 2008:-

In his Claimants’ Further Skeleton Argument at paragraph 22 Mr. Sowersby commented on this evidence of Dr. Cumming:-

Notwithstanding his criticism of the ability of Dr. Cumming, a neurologist, to express a view as to the implications of the increasing deterioration in the ability of Mrs. Sandford to see, Mr. Sowersby did invite me to consider an opinion expressed by Mr. Smith, a consultant orthopaedic surgeon, on more or less the same point. In a letter dated 8 April 2008 to Mr. Smith the solicitors acting for the executors of Mrs. Sandford requested that he, “confirm for the avoidance of doubt what appears to be your view that, on the balance of probabilities, absent the accident injury, Mrs. Sandford would not have had to go into a home.” In a letter dated 17 April 2008 Mr. Smith wrote:-

With all respect to them, the countervailing views of Dr. Cumming and Mr. Smith did not seem to assist very much in reaching any conclusion as to whether Mrs. Sandford would have been able to have continued living at the House with the support of her family after 17 November 2003, but for her fall.

There was put in evidence a copy of a Patient Transfer Note completed by a doctor at Whipps Cross Hospital in respect of Mrs. Sandford at the time of her discharge. As completed, that document noted the condition of Mrs. Sandford as “prone to UTI [urinary tract infection] poor vision, poor mobility, is occasionally incontinent of urine.” As to her requirements for assistance, it was recorded that, “she needs assistance of x1 with personal hygiene, she eats soft diet, sometimes needs assistance with feeding, she can walk with a frame and supervision x1, needs cot sides on bed as she had previous falls out of bed”.

Another document generated at the time of the discharge of Mrs. Sandford was a Notification of Discharge or Transfer completed by Dr. Brian Rossiter and dated 10 December 2003. That document, as completed, included a note that Mrs. Sandford suffered from chronic cognitive impairment in respect of which the comment was made that, “Evidence of widespread small vessel disease/atrophy on CT brain scan; not helped by her visual impairment and deafness; achieved 3/10 on formal testing”. In a section entitled “Functional” Dr. Rossiter wrote, “Able at times to transfer unaided and to walk with rollator frame – not predictable enough for consideration for ordinary residential care, hence awaiting Nursing Home placement”. Mr. Geoffrey Sandford was asked about the assessment in that document. He told me that he considered that it was erroneous and that Dr. Rossiter had looked at the wrong part of his file in preparing the document.

Subsequently Dr. Rossiter was asked to give an account of Mrs. Sandford and her circumstances to the insurers of the Council. In a letter dated 30 September 2004 he wrote, inter alia:-

The Smith Report contained the following passages relevant to the effect of the fracture of her right femur on Mrs. Sandford:-

The views of Mr. Smith expressed in the Smith Report were not challenged on behalf of the Council and I am content to accept them. However, doing that only leads me to the point that in all probability, but for her fall, Mrs. Sandford would not have had to have entered the Nursing Home on 17 November 2003. Mr. Smith did not feel able to say when Mrs. Sandford would otherwise have been likely to have entered the Nursing Home. He suggested that advice be sought from a consultant geriatrician. That step was not taken.

Mr. Warnock submitted, rightly as it seems to me, that it was for the claimants to prove, on the balance of probability, the element of damage said to have been incurred as a result of Mrs. Sandford being required to contribute to the cost of her accommodation in the Nursing Home. That could only be done by the adducing of evidence as to when, on the balance of probability, Mrs. Sandford would have entered the Nursing Home, but for her fall. There was, effectively, no such evidence. Such reasonably contemporaneous evidence as there was noted various conditions affecting the ability of Mrs. Sandford to continue to live in the House with the support of members of her family. I do not accept that, but for the fall, she would have been able to continue to live in the House until 1 June 2006. The acceptance on the part of the claimants that she would have been obliged to enter the Nursing Home at that date was really a concession supported by little evidence. Such evidence as there was was to the effect that by 1 June 2006 she seemed to have given up the struggle of life and had ceased eating. The evidence suggests that the date at which her family would have been unable to provide effective support for her living in the House would have been considerably earlier than that, without enabling me to reach any definite conclusion as to a particular date.

In the result the claim for damages in respect of the cost of contributions by Mrs. Sandford towards the fees paid for accommodation in the Nursing Home would have failed in any event for want of proof.

For the reasons which I have given, this action fails and is dismissed.