Corbett v South Yorkshire Stategic Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,LORD JUSTICE LEVESON |
| Judgment Date | 06 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1797 |
| Docket Number | B3/2006/2519 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 December 2006 |
[2006] EWCA Civ 1797
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE BULLIMORE)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Laws
Lord Justice Leveson
B3/2006/2519
MR M PORTER QC (instructed by Messrs Kennedys) appeared on behalf of the Appellant.
MR J GRACE QC & MR H TRUSTED (instructed by Messrs Irwin Mitchell) appeared on behalf of the Respondent.
This is the defendant's appeal against the decision of HHJ Bullimore, sitting as a Deputy High Court Judge, made on 24 November 2006 when he refused the defendant's application to adjourn what in the proceedings has been called “the indexation issue”. I shall explain what that means directly. Permission to appeal was given by the judge below.
The claim is an action for damages for clinical negligence. The claimant, John Corbett, was born on 31 March 1983. He suffers from cerebral palsy and has a mental age of about five. He is a patient of the Court of Protection. In April 2004, acting by his mother as litigation friend under the clinical negligence protocol, the claimant intimated a claim against the hospital authorities, seeking to hold them responsible for brain injury sustained by him at birth which was said to have led to his present and continuing condition. At length, proceedings were issued in August 2005. Liability was admitted the following month and thereafter substantial interim payments were made: £50,000 in October 2005, and £450,000 in December 2005.
The trial of the quantum of damages has been fixed for 18 December 2006, thus less than a fortnight off, though in fact there has been substantial agreement. All heads of loss, save for future care and case management, have been agreed in the total capital sum of £1,655,000. In addition the whole life multiplier has been agreed at 28.12. Thus only two issues remain, namely the cost of future care and case management, and the indexation issue. The latter arises in this way: if, as the claimant will submit, future loss by way of care and case management is to be compensated by an award of periodical payments, the court will have to decide how inflation, or theoretically deflation, in the cost of the relevant provision is to be measured for the purpose of fixing the periodical payments to be made as time goes by. Should it be by reference to the retail price index (“the RPI”) or to a different index such as the average earnings index (“the AEI”), the ASAT median (annual survey of hours and earnings, median earnings level), or the ASAG6115, which is the annual survey of hours and earnings, occupational earnings for care assistants of home carers. Care and case management costs have historically risen at a faster rate than the RPI and the claimant will seek to apply an index other than the RPI.
In order to understand the distinct issue which HHJ Bullimore had to decide and which falls for determination on this appeal, it is necessary to sketch in some background. The power to order that damages may take the form of periodical payments was conferred on the court by the Damages Act 1996 section 2 as now substituted by the Courts Act 2003. In Flora v Wakom (Heathrow) Ltd [2006] EWCA Civ 1103, this court had to decide how wide is the discretion to apply an index or measure other than the RPI. That was a question of statutory construction. It depended on the interrelationship between section 2(8) and 2(9) of the 1996 Act as substituted which, however, I need not cite. Brooke LJ, with whom Moore-Bick LJ and the President of the Family Division agreed, held that the discretion was wider rather than narrower and that, in enacting section 2, Parliament had not intended to depart from what has been described as the “hundred percent principle” of compensation (see paragraph 28 of the judgment) and the court should not consider questions of affordability in deciding what order to make (see paragraph 29).
The relevance of the Flora case for present purposes arises, however, because of the following passages in Brooke LJ's judgment:
“32. Mr Pooles expressed forensic concern about the prospect of trials at which a host of expensive expert witnesses would have to be called on each side while the court was exploring the merits, if any, of using an index other than RPI. He reminded us of what Stuart Smith LJ said in Warren v Northern General Hospital NHS Trust [2000] 1 WLR 1404 at para 13 about the undesirability of extensive evidence from accountants, actuaries or economists. This judicial comment was made, however, in a quite different context, in the period after Wells v Wells when people were waiting for the Lord Chancellor to use his statutory power to fix a discount rate for the calculation of lump sum awards.
“33. We are now dealing with a different statutory provision and, if the experience of the past is any useful guide, it is likely that there will be a number of trials at which the expert evidence on each side can be thoroughly tested. A group of appeals will then be brought to this court to enable it to give definitive guidance in the light of the findings of fact made by a number of trial judges. The armies of experts will then be able to strike their tents and return to the offices or academic groves from which they came.
“34. There was, in my judgment, considerable force in Mr Glancy's submission that if the court were to adopt an approach to the interpretation of s 2(8) and 2(9) which was different to that which he advanced there would be a very real danger that this new statutory scheme would not have the beneficial effect identified by Lord Steyn in Wells v Wells but which would be rendered to a great extent a dead letter.”
The respondent, the claimant in the proceedings, drew particular attention to paragraph 33 and Brooke LJ's contemplation of a number of trials and a...
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Littlewoods Retail Ltd and Others v HM Revenue and Customs
...Ltd v Owen-Owen [CA February 1999]; R v Yates Settlement [1954] 1 All ER 619; Corbett v South Yorkshire Strategic Health Authority [2006] EWCA Civ 1797. Conclusion 19 The issue which I have to decide on this application is a narrow one: is it right for me to impose an immediate stay of th......
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Love v Dewsbury
...course is to apply the law as it stands until it is altered. I have also been asked to and have considered the case of Corbett v South Yorkshire Strategic Health Authority [2006] EWCA Civ 1797. 72 My duty, as I conceive it, is to apply the law as it stands today. If I get it wrong there is ......