KIRSTIE DALLOW
and
SHREWSBURY AND TELFORD HOSPITALS NHS TRUST
INTERIM PAYMENT APPLICATION
HIS HONOUR JUDGE MACDUFF QC
CASE REPORT
Level playing field
Sowden and Crookdake
Periodical payments order as a bar
1. On the 31st October 2005, His Honour Judge MacDuff QC, the designated
civil judge for Birmingham, ordered the Defendant to pay an interim payment of
£670,000 to the Claimant. This is far from the largest interim payment ever made,
but it may be of interest because it was hotly contested, and three current topics
of importance were argued.
2. The Defendant made an application to stay the action, or to adjourn it, until
the Claimant had undergone a section 47 assessment - that application was not
pursued on the day of the hearing. It may be interesting to speculate how many
claimants would have been put off by this, apparently, vigorous defence, not realising
that it would be abandoned.
3. The Claimant suffers from athetoid cerebral palsy, and will always be dependent
on others for all aspects of daily living. The doctors agreed that her life expectancy
is to her mid fifties. The Claimant is currently resident in an institution, and
she has in the past expressed the preference to remain in some form of institution.
However, the application for the interim payment was based on her current expressed
intention to buy a large bungalow, and live there with her mother, grandmother
and two step-brothers. The judge accepted that there is a very great possibility
that damages will be reduced greatly to reflect the Defendant's concerns that
the future is very unclear.
4. The case of Stringman v McArdle [1994] 1 WLR 1653 was emphasised (interim
payment should be made without investigation of the intended use of the money)
- decided before CPR.
The judge said that, under the current rules, the court is entitled to consider the reasonableness
of the Claimant's proposals in the light of the Defendant's objections; stated like that, I doubt
whether he is correct, but he went on to give, as an example of a relevant consideration, the
notion that an interim payment may prejudice the trial. This is the level playing field argument,
currently being used by defendants, the case being Campbell v Mylchreest [1998] PIQR 20. It
is unlikely to succeed, unless the facts are very strange. It is axiomatic that the easiest cases for
judges, and the ones therefore which rarely reach trial, are where the claimant has bought a house,
installed himself and his family, arranged a care package, bought relevant equipment and
transport, and settled down to the future. Any judge can make a decision whether that is
reasonable, and there is no reason to suppose that a judge would be constrained by an
unreasonable status quo. Of course, that is the very thing that defendants do not want - a sensibly
settled claimant who has removed all or most of the uncertainties which are often paraded before
inexperienced judges.
5. The judge summarised: "I have reached the conclusion that the Defendant's perceived
sense of prejudice is not sufficient in this case to so tilt the level of the
playing field that I should exercise my discretion in the Defendant's favour.".
6. The second main objection taken by the Defendant was that Sowden and Crookdake
would reduce the claim from a minimum £2 million to about £900,000. The defence
submission was that if (1) the state is under a duty to provide care without cost
to the claimant, and (2) the court determines that the state-provided care is
reasonable and adequate, and that the claimant is well-served by accepting that
care, the claimant has not suffered any loss. That is a gross over-simplification
of the correct analysis of a claimant's position in relation to care. Not surprisingly,
it was not accepted by the judge.
7. In this case, a section 47 assessment is currently being carried out.
8. In my opinion, the correct analysis of the current legal position is as follows.
- The local authority is under a duty to make arrangements for providing
care for catastrophically injured claimants.
- Where it appears to the local authority that a person may be in need of
such services, they would assess need by a section 47 assessment.
- The claimant is not under a duty to ask the local authority to carry out
such an assessment.
- Nor is he or she under any duty to try to force the local authority to
do so.
- If the local authority does offer to do an assessment, the claimant MAY
BE under a duty to co-operate with the local authority in that assessment.
- It is possible that, in suitable cases, a claimant MAY BE able to argue
that, even if the local authority offered apparently suitable care, he or
she would prefer to manage their lifetime care without any reliance on the
vagaries of the local authority (I have won this argument once this year).
- It is doubtful whether an insurer has the right to force a local authority
to carry out a section 47 assessment on a claimant.
- If that is so, it is difficult to see why a local authority should bow
to the pressure of the insurer, and undertake a financial responsibility which
may appear morally to be that of the insurer.
- An alternative to the actual provision of care is the making of direct
payments.
- They will only be relevant to a judge if the defendant has persuaded the
local authority to carry out a section 47 assessment, and then offer direct
payments.
- Whether the local authority offer direct payments or care, there are still
issues for a claimant and his advisers to resolve, namely whether such local
authority provision has the same guarantee of continuance as a lump sum or
periodical payments order, and whether the claimant is prepared to surrender
himself and his freedom of choice to the mercy of the local authority.
9. If those propositions are correct, it seems that claimants do have some
choice. When the defence solicitor or insurer demands that the claimant should
undergo a section 47 assessment, many claimants' advisers (not only solicitors
and barristers, but also case managers and other clinicians) advise the claimant
to co-operate by asking the local authority to carry out the assessment. That
is not required, and in my opinion should only be advised if, after a careful
explanation of the legal principles in non-legal language, the family feel
that they are genuinely happy to explore the local authority provision of
care. They should realise that, by so doing, they are starting down the route
of committing their lives to the local authority.
10. His Honour Judge MacDuff said:
"It is trite law to state that a claimant is entitled, if he reasonably so chooses, to employ
privately paid carers and to have privately paid medical care. The important words are "if
he reasonably so chooses". He cannot be required to be dependent upon state provision
of care or NHS medical services. ... the claimant has a right to seek private care provision
in preference to relying upon local authority provision, and may recover the cost of doing
so from the defendant. It is only if the Court is satisfied that there is a proper and
reasonable alternative to the claimant's preferred care package, and which gives "full
compensation" ... that the defendant ... is not responsible for the cost of the care claimed
by the claimant.
It seems to me that, in any case of serious injury, the circumstances in which a
claimant would, in effect, be obliged to accept state-provided care (that is, it would be
unreasonable to refuse it) will be few and far between. It will be a rare case indeed where
the local authority can and will provide a fully compensating care package. The local
authority (or the NHS) may be under a duty to provide for the needs of the claimant,
whereas the claimant is entitled to recover from a tortfeasor the cost of providing care in
his best interests - care which goes beyond his bare needs, but which, so far as it is
possible to do so, restores him to the position he was in before he suffered the injury."
11. The judge considered it "wildly and unreasonably unlikely" that the defence
argument on Sowden and Crookdake would reduce damages to the £900,000
suggested by the Defendant. He thought it speculative to presume that there may
be an obligation on the local authority to provide the level of care to which
this Claimant is entitled. He pointed out that the Defendant had not disclosed
evidence from its own experts on this issue.
12. He also emphasised two other points which I consider to be of supreme importance;
"... it is likely to be impossible for any local authority to give undertakings for the more
remote future, when all sorts of amendments might be made to regulations, budgets and
the like. Local authority provision would not provide the same degree of security. Also,
as Owen J recognised in Crookdake, a claimant is entitled to have respect for his freedom
of choice as to his domestic arrangements and not to be circumscribed by local authority
decisions as to what was to be provided.".
13. There was a decision earlier this year, in which I represented the Claimant,
where the trial judge decided that the Claimant was entitled to have control over
her life, and over her care package.
14. The last defence dealt with by the judge was that a large interim payment
would or might tie the hands of the trial judge, because he or she would be constrained
to make a lump sum award when he would have preferred to order periodical payments.
The judge found it difficult to foresee circumstances where a court would impose
a periodical payments order on mutually unwilling parties, although it does have
the power to do so.
15. He noted that the Defendant had still not said that it intended to urge a
periodical payments order on the court, only that it may do so; "I hope I am not
being too cynical if I suggest that the Defendant's arguments on periodical payments
may be more concerned with resisting this application than with a sincere desire
to protect the trial position and preserve a status quo.". He did think, though,
that a genuine position statement by a defendant that it will seek a periodical
payments order, particularly if backed by cogent argument, would be a relevant
consideration. As always, this emphasises the importance of evidence; bearing
in mind the burden of proof on a defendant, there will surely have to be powerful
factual and expert evidence to suggest that a periodical payments order is likely
to be made before this argument should succeed.
16. The judge did say that, where there is a real issue as to life expectancy,
the arguments in favour of a periodical payments order are likely to be compelling.
This is superficially attractive, but may not reflect the depth of the debate
on the topic (no criticism of the judge, because he was not dealing with this
issue, as life expectancy was agreed). There are many issues, one of the main
ones being which index is used to link the order to inflation, which may affect
the decision.
5 December 2005
BILL BRAITHWAITE QC