Walton v Calderdale Healthcare NHS Trust

Louis Walton ("the claimant"), who was born on 18th July 1995, sadly suffers from dyskinetic cerebral palsy as a consequence of perinatal asphyxia. A claim for negligence has been brought against Calderdale Healthcare Trust ("the defendants") and liability has been admitted. The present trial is only concerned with the issue of quantum.

The claimant's condition has sadly rendered him severely handicapped. He continues to require a large level of care and assistance in all but a few aspects of daily living. He also suffers from dysarthria, which reduces considerably his ability to communicate. The claimant's intellectual capacity and his life expectancy are largely unaffected. Although he has deficits in the area of perceptual functioning, he is acutely aware of his disabilities as a consequence of which he suffers significant emotional difficulties. The extent of the claimant’s physical disabilities are such first that he has no realistic prospect of future employment and second that high levels of continuing care and assistance will be required for him.

The parties have reached an agreement on all heads of damage with the exception of the way in which the claimant should be compensated for his care costs after he reaches the age of 19. This dispute raises the important issue of how a court should resolve a claim by a defendant that part or all of a claimant’s future case needs will be met by a local authority and in particular the question is raised in this case of whether the burden of proof on this issue should be on the claimant or on the defendant.

As I have explained, the claimant has tetraplegic dyskinetic cerebral palsy, and I must now explain the terms. The term "cerebral palsy" indicates that the claimant has a persistent but evolving disorder of movement and motor functioning, which is clearly significant and which has occurred secondarily to a non-progressive brain disorder. "Dyskinetic " for which the term athetoid is used synonymously indicates that the dominating abnormality of the claimant is that of unwanted fluctuations of muscle tone together with unwanted involuntary movements. "Tetraplegia" indicates that all four limbs are involved in this process and synonyms for tetraplegia are quadriplegia, four limb cerebral palsy and whole body cerebral palsy.

It is unnecessary to give any more details of the claimant’s handicaps as the parties have agreed that an appropriate lump sum to compensate him would be £2.65m. The payment of this sum is to be satisfied in three ways. The first way is for the defendant to pay on terms to be ordered by the court periodical payments for the claimant between the trial date and 18th July 2014 (namely when the claimant reaches the age of 19) at the rate of £20.000 per annum subject to Retail Price Index escalation ("RPI escalation"). The second way in which the judgment is to be satisfied is by an immediate lump sum payment for the claimant, the amount of which will depend on the amount, which is to be attributed to the parts of the award satisfied by periodical payment. The final way in which the claimant wishes the judgment to be satisfied is by means of periodical payments in respect of care from the age of 19 for the balance of the claimant's life and it is this issue, which was the subject of submissions and which I have now to determine.

The only issue that remains for determination is what periodical payments (if any) should be ordered to be paid from the time when the claimant reaches the age of 19 and for the remainder of his life. The care experts for the parties have agreed that the appropriate annual rate for such payments should be £50,548 and Mr Christopher Storey QC on behalf of the claimant contends that this is the amount subject to RPI escalation, which the defendants ought to pay by periodical payments.

The defendants disagree and they contend that the annual payment should be less. The basis of the defendants’ contention put forward on their behalf by Mr. Edward Faulks QC is that the local authorities will contribute to some extent to the claimant's care and so this contribution should reduce the amount payable by the defendants to the claimant by periodical payments to £44,000 per annum subject to RPI escalation. At the end of the hearing, I announced that I accepted the submissions of the claimant that the appropriate sum for periodical payments to be made to the claimant for care payments after he reaches the age of 19 should be £50,548 per annum subject to RPI escalation and I stated that I would put my reasons in writing, which I now do.

It is appropriate now to set out the relevant statutory provisions, which govern orders for the periodic payments for future pecuniary loss. Under section 2(1) of the Damages Act 1996 as amended by section 100 of the Courts Act 2003, a court awarding damages for future pecuniary loss in respect of personal injury “may order that the damages are… partly to take the form of periodical payments”. Section 2(3) of the Damages Act 1996 as amended by section 100 of the Courts Act 2003 provides that a court may not make an order for periodic payments unless "satisfied that the continuity of payment under the order is reasonably secure".

One of the ways in which continuity of payment is to be regarded as "reasonably secure" is if the source of payment is a “health service body”: section 2(4) of the Damages Act 1996 as amended. In this case, a health service body would be making the payment for future care costs to the claimant and thus this requirement is satisfied. There are further specific requirements, which have to be considered as CPR 41.7 provides that before an order for periodic payments can be made under section 2 of the Damages Act 1996: -

“.. the court shall have regard to all the circumstances of the case and in particular the form of award which best meets the claimant's needs, having regard to the factors set out in the practice direction".

The relevant Practice Direction, namely Practice Direction- Periodical Payments under the Damages Act 1996, sets out the factors to which the court shall have regard to and they include: -

“…(2) the form of award preferred by the claimant including (a) the reason for the claimant's preference and (b) the nature of any financial advice received by the claimant when considering the form of award; and (3) the form of award preferred by the defendant including the reasons for the defendant's preference"

Applying those principles to the facts of this case, each of those factors supports the claimant’s contention that there should be periodical payments for future care for the claimant after he has reached the age of 19 as the litigation friend and mother of the claimant strongly supports periodical payments on the basis of advice she has received from an independent Financial Advisor. She explains in her second witness statement that she is concerned that as the claimant will live for another 70 or so years, if he was not to receive periodical payments, he might otherwise run out of capital and income which could pay for his care costs. I regard this as a cogent and sensible point as is the fact that a lump sum payment might not be large enough to compensate the claimant if there was to be a high rate of inflation in the future. I did not understand the defendants to oppose an order for periodic payments for the claimant’s care. So after considering all the matters to which I have referred, I propose to make an order that the claimant’s care costs after the age of 19 are to be paid by periodic payments.

As I have explained, Mr. Faulks contends that the periodic payments for future care payable to the claimant after he reaches the age of 19 should not be at the annual rate of £50,548 as agreed by the care experts of the claimant and of the defendants but instead his instructions are that the periodic payments should be paid at the annual rate of £44,000. He explains that his instructions were that this figure has been calculated on the basis of a document produced by HM Treasury entitled Value for Money (“the Treasury publication”) but he did not have a copy of this document. In addition, he frankly accepted that he could not quote or explain what this document actually stated.

In all fairness to Mr. Faulks and the defendants, I should explain that the claimant should have claimed, but had not claimed periodic payments in either the pleadings or in the Schedule of Damages served on his behalf. This might explain why Mr. Faulks could not explain what the Treasury publication actually states but it is noteworthy that Mr. Faulks stated specifically that he did not have any instructions to seek an adjournment so as to be able to produce either the Treasury publication or any evidence in support of his assertion that the periodic payments should be less than the sum agreed by the experts. Thus, I have considered the dispute on the amount of the periodical payments for future care on the basis that the defendants’ case depended solely on Mr. Faulks’ assertion about the contents of the Treasury publication and not on any cogent evidence.

I concluded that in the absence of any contrary evidence in this case from the defendants, I should order the defendants to make the periodical payments for the claimant’s care after he reached the age of 19 at the rate agreed by the experts. In determining this point, an important issue was whether the claimant had to prove that the local authority would not contribute to the claimant’s costs of care or whether the burden of proving that the local authority would or might contribute to these costs was on the defendants.

In Sowden v. Lodge [2005] 1 All ER 583, leave to appeal to the Court of Appeal had been granted so that it could consider: -

“the propriety of the court awarding top-up damages in a case where a court feels that residential local authority accommodation does not of itself meet the reasonable needs of the claimant but that the claimant does not need the stark alternative of privately-funded care or will not avail herself of such private care even if awarded a sum which will enable her to purchase such care”[99].

The issue in that case was clearly different from the issue with which I am now concerned but some of the reasoning in the judgments in that case on which party has the burden of proof is instructive. It is relevant to the present dispute as it was stated in Sowden that

In this case, the claimant has proved that his reasonable care needs from the age of 19 requires annual periodic payments of £ 50,548.90 subject to RPI escalation as this is shown by the agreed reports of the care experts. The reasoning in Sowden demonstrates that the defendants then in consequence have the onus of showing that the local authority can wholly or partially satisfy these reasonable needs of the claimant. The defendants have failed to discharge this onus, as they have not adduced any evidence to show that the local authority or any organisation would provide any care for the claimant or bear any of the costs of providing the care. Thus the claimant is entitled from the age of 19 to annual periodic payments of £ 50,548.90 subject to RPI escalation.

For the avoidance of doubt, I stress that if a defendant wishes to claim that a local authority might meet at any time all or some of the claimant’s reasonable care costs, then it must adduce cogent evidence to show that this is correct but as I have explained, the defendants have not done so in the present case.

Indeed even if the claimant had the onus of showing that the local authority could not wholly or partially satisfy his reasonable care needs, he might well have discharged this burden because, as Mr. Storey has explained, there is a strong prospect that by the time that the claimant reaches the age of 19 in July 2014 and thereafter, local authorities might well be applying a means test before giving any care benefits to disabled people. The claimant might well then be regarded as someone, who would not be entitled to receive benefits from the local authority because of his means but I need not reach a decision on that point for the reasons set out in the last paragraph.

Thus the claimant is entitled to periodic payments at the rate agreed by the care experts of the parties at the rate of £50,548 per annum subject to RPI escalation from today’s date for his care costs but with effect from July 2014.The remainder of the terms of the order have been agreed. I cannot finish my involvement in the present case first without paying tribute to Louis’ remarkable courage in coping with his disabilities and second without acknowledging the magnificent, sustained and dedicated care of Louis’ mother and of other members of their family.