Wilfred Walker v Jake Smith

In a settled personal injury claim, the court may make an order for periodical payments where continuity of payment is reasonably secure. That requirement is met where the payments are protected by a scheme under section 213 of the Financial Services and Markets Act 2000. The court may also award provisional damages where there is an admitted chance that, because of the act or omission giving rise to the claim, the injured person may later suffer serious deterioration in physical or mental condition. In a consent-order case, the court must still be satisfied that the statutory and procedural criteria are met and that making the provisional damages order is an appropriate exercise of discretion.

The claimant brought a damages claim for serious personal injury arising from a road traffic accident. The claim settled before trial, subject to the court being satisfied about two matters concerning the proposed consent order.

The first was whether the continuity of agreed periodical payments was reasonably secure. The second was whether the statutory criteria for provisional damages, including a future risk of serious deterioration, were satisfied. The claimant was an adult with full capacity, and approval of the settlement as a whole was not required.

1. Periodical payments. Under section 2(3) of the Damages Act 1996, the court had to be satisfied that continuity of payment was reasonably secure. Section 2(4)(b) treated that requirement as satisfied where payment was protected by a scheme under section 213 of the Financial Services and Markets Act 2000. The claimant’s periodical payments were protected by the Financial Services Compensation Scheme applicable to the defendant’s motor insurance policy. The court was therefore satisfied that continuity was reasonably secure.
2. Provisional damages. CPR 41.2(1)(b) required the court to be satisfied that section 32A of the Senior Courts Act 1981 applied. Section 32A covered an action for personal injury where there was a proved or admitted chance that, at a definite or indefinite future time, the injured person would, as a result of the relevant act or omission, develop a serious disease or suffer serious deterioration in physical or mental condition.
3. The medical evidence established an admitted, albeit small, risk that the claimant would develop a syrinx causing significant deterioration. The statutory criteria and the other requirements of CPR 41.2 were met. The provisional damages order was also appropriate as an exercise of judicial discretion, notwithstanding that the matter arose in a consent-order case.
4. The proposed remote hearing by MS Teams was justified and proportionate in the circumstances. No party was prejudiced and open justice was secured. The court made the consent order in the terms invited by the parties.