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Walton v Calderdale Healthcare NHS Trust, High Court, 18 May 2005

2 June 2002
The issues

Care – Periodical Payments – Whether Local Authority Contribution Should Be Taken Into Account To Reduce Periodical Payments – Sowden v Lodge

The facts

The Claimant, born in July 1995, suffered from dyskinetic cerebral palsy as a result of perinatal asphyxia. A claim for negligence was brought against the Defendant Trust and liability was admitted. The Claimant was severely handicapped and required a large level of care and assistance in most aspects of daily living. He had greatly reduced ability to communicate. His intellectual capacity and life expectancy were largely unaffected.

The parties had reached agreement on all heads of damage with the exception with the way in which the Claimant should be compensated for care costs after he reached the age of 19. The parties had agreed that the appropriate lump sum to compensate the Claimant was 2.65 million. This was to be satisfied by periodical payments until the point at which the Claimant reached the age of 19; by an immediate lump sum payment; and by further periodical payments in respect of care from the age of 19 for the rest of the Claimant’s life.

In respect of the latter the care experts for both parties had agreed that the appropriate annual rate should be £50,548.00. The Claimant’s position was that this was the amount that should be paid by way of periodical payments subject to RPI escalation. The Defendants argued that the amount should be less on the basis that local authorities would contribute to some extent with the Claimant’s care and that this contribution should reduce the amount payable by the Defendants to £44,000.00 per annum subject to RPI escalation.

The decision

1. In considering whether a Court should make an order for periodical payments it should have regard to all the circumstances of the case and in particular the form of award which best met the Claimant’s needs having regard to the factors set out in the practice direction. (CPR 41.7).

2. The practice direction set out the following factors – the form of award preferred by the Claimant including the reason for his preference and the nature of any financial advice he had received and;

3. The form of award preferred by the Defendant including the reasons for the Defendant’s preference.

In this case each factor supported the Claimant’s contention that there should be periodical payments for future care for the Claimant after he reached the age of 19. It had been strongly recommended by an independent financial advisor to the Claimant. It reflected the Claimant’s mother’s concern that if he were not to receive periodical payments he might otherwise run out of capital income to pay for his care costs. The Defendants were not opposing an order for periodical payments.

The Defendant’s contention that the periodical payments should be less because of local authority contribution, rested on an assertion by Counsel that this figure was calculated on the basis of HM Treasury’s document “Value for Money”. The document however had not been produced in Court.

There was therefore no cogent evidence to support the assertion and accordingly the order for periodical payments would be made at the rate agreed by the experts.

Following the decision in Sowden v Lodge the onus rested fairly and squarely on the Defendant to show that a local authority could wholly or partially satisfy the Claimant’s reasonable needs. The onus had not been discharged.

Even if there had been cogent evidence it might have been that the Defendant would not have succeeded on the basis that it had been suggested by Claimant’s Counsel that there was a strong prospect that by the time the Claimant reached the age of 19, local authorities might be applying a means test before giving any care benefits to disabled people.

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