Downing v Peterborough & Stamford Hospitals NHS Foundation Trust

In assessing future needs arising from chronic pain, the court must examine the claimant’s individual circumstances and the evidence as it stands. The ending of litigation does not justify assuming “closure” or significant recovery. Unless improvement is proved on the balance of probabilities, future needs should be assessed by reference to the established present condition, while allowing for realistic treatment prospects.

Partial wheelchair dependence may justify wholly compatible accommodation. Care awards must account for public payments to avoid double recovery, subject to any undertaking removing that risk. Civil Procedure Rules 1998 Part 36 sanctions promote settlement and are not confined to morally blameworthy conduct; departure from the ordinary rule requires particular circumstances making the order unjust.

This was a first-instance assessment of damages for a claimant whose liability and causation claims had been compromised on the basis that he would receive 63% of damages, without admissions. The claimant suffered continuing physical pain, reactive arthritis, psychiatric consequences and severe disability after surgery. The principal issue was prognosis and its effect on future needs and compensation. The court also determined claims for accommodation, earnings, care, medical treatment and other expenses, together with the consequences of a favourable Part 36 offer.

Disposition. The court assessed damages on the agreed 63% basis. Damages amounted to £1,508,524 after the agreed reduction. The claimant’s future care, accommodation and other needs were assessed, and the claim for a continuity of education allowance was disallowed.

1. Prognosis. The court rejected any assumption that litigation would produce recovery through “closure” or removal of perceived injustice. Prognosis had to be assessed by reference to the claimant’s particular circumstances, the evidence about his past and present condition, and realistic treatment prospects. The interdependence of physical pain, arthritis, depression and psychosocial factors meant that they could not be artificially compartmentalised. On the balance of probabilities, significant long-term improvement was not established. Future needs were therefore assessed on a substantially pessimistic prognosis.
2. Damages. Partial wheelchair dependence did not prevent an award for accommodation wholly compatible with wheelchair use where the cumulative practical difficulties justified it. Future care was awarded because an ongoing requirement was established. The court accepted that a claimant who could resort to a tortfeasor need not rely on public funds, applying the principle in Peters v East Midlands Health Authority [2009] EWCA Civ 145. An undertaking not to seek future direct payments removed the risk of double recovery. A standard or aggregated approach to care rates was accepted, following the approach considered in Noble v Owens [2008] EWHC 359 (QB). Career and earnings contingencies were discounted in accordance with Herring v Ministry of Defence [2003] EWCA Civ 528. The continuity of education allowance was treated as protection against disruption caused by military postings; since that contingency could no longer arise, its loss was not compensable. The approach described in Morgan v Ministry of Defence [2002] EWHC 2072 (QB) was not followed on that issue.
3. Part 36. The judgment was at least as advantageous as the claimant’s offer. Under CPR 36.14(3)(b) and (c), indemnity costs from the relevant date and interest on those costs at 10% above base rate were ordered. The court held that the “unjust” exception requires case-specific circumstances taking the case outside the norm. The settlement regime is not limited to morally blameworthy conduct. No such circumstances existed. The maximum additional sum under CPR 36.14(3)(d), then £75,000, was also awarded.

not stated in the judgment.