Walton v Calderdale Healthcare NHS Trust

Where a claimant establishes reasonable future care needs, a defendant who contends that a local authority or other body will meet all or part of those needs must provide cogent evidence of that proposition. The claimant has no preliminary burden to disprove the adequacy of statutory provision. The court must assess the form of award under section 2 of the Damages Act 1996, having regard to the claimant’s needs, the security of payment and the parties’ preferences. In the absence of evidence supporting a reduction, the court may order periodical payments at the rate established by the agreed care evidence.

The defendants admitted liability for the claimant’s cerebral palsy and the parties agreed all heads of damage except the claimant’s future care after age 19. The claimant sought periodical payments of £50,548 per annum, subject to Retail Price Index escalation. The defendants contended that local authority contributions would reduce the appropriate payment to £44,000 per annum, relying on an unexplained Treasury publication.

The central issue was whether the claimant had to prove that local authority provision would not meet his care needs, or whether the defendants had to establish that such provision would or might meet them.

1. Periodical payments. Under section 2(1) of the Damages Act 1996, as amended by section 100 of the Courts Act 2003, the court could order that damages for future pecuniary loss partly take the form of periodical payments. Continuity of payment was reasonably secure because the proposed source was a health service body under section 2(3) and section 2(4).
2. Under CPR 41.7, the court had to consider all the circumstances, particularly the form of award that best met the claimant’s needs, having regard to the relevant Practice Direction. The claimant’s preference for periodical payments was supported by his litigation friend and by independent financial advice. The protection against exhaustion of capital and the risk of future inflation were cogent reasons for making that order.
3. The claimant established through the agreed care evidence that his reasonable care needs from age 19 were £50,548.90 per annum, subject to Retail Price Index escalation. Applying the reasoning in Sowden v Lodge [2005] 1 All ER 583, the burden then fell on the defendants to show that local authority or other provision would wholly or partly satisfy those needs.
4. The defendants produced no cogent evidence. Counsel’s unsupported assertion about the contents of an unavailable Treasury publication did not discharge the evidential burden. The court therefore ordered periodical payments of £50,548 per annum, subject to Retail Price Index escalation, from the judgment date for care costs accruing from July 2014. The remaining terms of the order had been agreed.