RH v United Bristol Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller |
| Judgment Date | 17 January 2008 |
| Neutral Citation | [2008] EWCA Civ 5 |
| Docket Number | Case No: B3/2007/0077, B3/2007/1371 U20060145 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 January 2008 |
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM Manchester District Registry
Mrs Justice Swift
(2) ON APPEAL FROM Sheffield District Registry
HH Judge Bullimore
5SE09624 (3) ON APPEAL FROM QB Division
Mr Justice Mackay
(4) ON APPEAL FROM The Law Courts, Liverpool
Mr Justice Nelson
LORD JUSTICE WALLER
Vice President of the Court of Appeal, Civil division
LORD JUSTICE BUXTON and
LADY JUSTICE SMITH
Case No: B3/2007/0077, B3/2007/1371
B3/2007/1519, B3/2007/0076
U20060145
Philip Havers Qc, Paul Rees Qc And David Manknell (instructed By Messrs Bevan Brittan Llp) For The Appellant
David Allan QC and David Heaton (instructed by Messrs Linder Myers) for the Respondent
Philip Havers Qc, Paul Rees Qc and David Manknell (instructed By Messrs Kennedys) For The Appellant
John Grace Qc, Robin Oppenheim Qc and Harry Trusted (instructed By Messrs Irwin Mitchell) For The Respondent
Philip Havers Qc, Paul Rees Qc and David Manknell (instructed By Messrs Kennedys) For The Appellant
John Grace Qc, Robin Oppenheim Qc and Harry Trusted (instructed By Messrs Barcan Woodward, Solicitors For The Respondent
Paul Rees Qc and David Manknell (instructed By Messrs Bevan Brittan Llp) For The Appellant
Stephen Grime Qc (instructed By Messrs Lees & Partners, Solicitors) For The Respondent
Hearing dates : 15 th– 20 th November 2007
Introduction
This is the judgment of the court to which all members have contributed. It deals with a number of appeals from decisions concerned with the making of Periodical Payment Orders (PPOs) under section 2 of the Damages Act 1996.
The decisions appealed are all concerned with very serious injury to young claimants, suffered at birth as a result of negligence, for which liability had been admitted by different Health Authorities or different Healthcare Trusts i.e. in broad terms the NHS. The damages for future care were in large measure agreed but the question whether a PPO should be made and if so what the form of the order should be was in issue. In such cases, by section 2(1) of the Damages Act 1996 (brought in by way of amendment by the Courts Act 2003) the court has, since 1 st April 2005, been required to consider whether to make an order for periodical payments. Section 2(8) and (9) provide as follows:-
“2(8) An order for periodical payments shall be treated as providing for the amount of payments to vary by reference to the retail prices index (within the meaning of section 833(2) of the Income and Corporation Taxes Act 1988) at such times, and in such a manner, as may be determined by or in accordance with Civil Procedure Rules.
(9) But an order for periodical payments may include provision—
(a) disapplying subsection (8), or
(b) modifying the effect of subsection (8).”
In Flora vWakom (Heathrow) Ltd [2006] EWCA Civ 1103 the construction of these subsections was considered in the following circumstances. The claimant in that case had been severely injured and claimed damages for inter alia loss of future earnings and future care. The defendant admitted liability. In the statement of case relating to the award of damages, the claimant contended that, if the court made an order for periodic payments, it should disapply or modify section 2(8) and provide for the amount of such payments to vary by reference to a wage-related index rather than the retail prices index (RPI). To support that case, the claimant sought to adduce the expert evidence of Dr Victoria Wass, an academic labour economist based at the Cardiff Business School. The defendants applied to strike out the relevant parts of the statement of case and to exclude the evidence of Dr Wass on the grounds that use could only be made of section 2(9) in exceptional circumstances. Sir Michael Turner refused the defendant's applications and the Court of Appeal dismissed an appeal, holding that section 2(8) identified a default position and that section 2(9) allowed the court to make the orders identified therein not simply in exceptional circumstances but whenever it appeared appropriate and fair to do so.
In dealing with a point made by Mr Pooles, for the defendants, as to the risk that, if exceptionality was not the test, the courts faced the prospect of trials at which a host of expensive witnesses would be called on each side, Brooke LJ (with whose judgment Sir Mark Potter and Moore-Bick LJ agreed) said this:-
“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.”
We now have before us this group of appeals. They are four in number which we will identify simply by the name of the claimants: Thompstone, a decision of Swift J whose judgment was handed down on 23 rd November 2006; De Haas, a decision of Nelson J given on 24 th November 2006; Corbett, a decision of His Honour Judge Bullimore sitting as a High Court Judge handed down 28 March 2007; and RH, a decision of Mackay J handed down on 20 June 2007. In all, liability was admitted and all are concerned with severely injured claimants claiming future losses, particularly costs of future care.
The decision of Swift J was the first in time. The parties had agreed that all future losses should be paid as a lump sum save for the costs of care and case management. The claimant sought a PPO linked to a wage-related index; the defendant wanted RPI to apply. Swift J rejected arguments seeking to distinguish Flora. After considering extensive expert evidence, she took the view that, because wages would increase at a faster rate than prices measured by the RPI and the RPI was thus not likely to be a reliable or accurate indicator of growth in earnings, it was right to investigate alternatives. She did so and considered the advantages and disadvantages of several measures and indices, including the Annual Survey of Hours and Earnings (ASHE) for the occupational group of care assistants and home carers (Occupational Group 6115), produced by the Office of National Statistics (ONS). She concluded that
“it would be fair and reasonable under the provisions of section 2(9) to modify the effect of section 2(8) by providing for the amount of payments to vary by reference to the 75 th percentile of ASHE occupational group 6115.”
In De Haas, Nelson J was unpersuaded that there were arguments unaddressed in Flora or by Swift J, whose decision, with permission to appeal, had been promulgated the day before the hearing in De Haas. He had approved the settlement of the claimant's claim and was concerned with the form of the order. He decided that there should be a lump sum payment for all heads of damage other than the costs of future care and case management. He adjourned the question of indexation because the claimant by her litigation friend accepted that she would be bound by the result of the proposed appeal in Thompstone.
HH Judge Bullimore and Mackay J applied their own minds to the issues argued out before Swift J and independently rejected arguments seeking to distinguish Flora. They also independently rejected the RPI as a suitable index by reference to which to increase the wages of carers and independently held, after considering extensive expert evidence, that the appropriate measure for indexation was ASHE 6115. Mackay J was also assisted by the fact that on the last day of the hearing before him, 25 th May 2007, Lloyd-Jones J handed down a judgment in Sarwar v Ali and MIB [2007] EWHC 1255. That decision has not been appealed but he also reached the conclusion that RPI was not an appropriate measure by which to index PPOs covering losses relating to wages, and in relation to future care he too applied ASHE 6115; he also used a wage-related measure to index a PPO covering the loss of future wages.
It could be said that the decision in Flora should be treated as saying no more than that the claimant's contentions were arguable and that he should be allowed to call the evidence of Dr Wass at trial. However, in all these cases Flora has not been treated as simply a decision on arguability but was —we think rightly —treated as authority on the construction of section 2(8) and (9) albeit that attempts were made to limit what Flora actually decided. In this court on the appeals, Flora has rightly been treated as binding on us but again subject to a submission that some points are not covered by the decision. Permission to appeal to the House of Lords was refused in Flora both by this court and the House of Lords, but in the latter case on the basis as their Lordships indicated that it was too early for such an...
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