Wna v Ndp
| Jurisdiction | England & Wales |
| Judge | Robinson |
| Judgment Date | 22 November 2023 |
| Neutral Citation | [2023] EWHC 2970 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: E90SE156 |
[2023] EWHC 2970 (KB)
HIS HONOUR JUDGE Robinson sitting as a Judge of the High Court
Case No: E90SE156
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
SHEFFIELD DISTRICT REGISTRY
Sheffield Combined Court Centre
50 West Bar
Sheffield
Adam Weitzman KC and Patricia Leonard (instructed by Irwin Mitchell LLP) for The Claimant
James Todd KC (instructed by DWF LLP) for The Defendant
Hearing date: 18 September 2023
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.30am on 22 November 2023.
Introduction
On 20 February 2020 I gave judgment on the preliminary issue of liability in this case. The relevant facts can be shortly stated. At about 9.30 pm on 24 September 2016 the Claimant was the front seat passenger in a Ford Fiesta motor car (“the Fiesta”) being driven by the Defendant, who at the time was also her boyfriend. She was wearing her seatbelt. Two other persons were passengers in the rear seats. The Defendant was negotiating a left hand bend in the road when he was faced with an on-coming car. I found on the evidence that he lost control of the Fiesta. The Fiesta overturned and ended up on its roof. The driver of the on-coming car did not stop and has never been traced.
I found the Defendant to be at least partially to blame, and hence liable to the Claimant for the catastrophic injuries she sustained. I did not apportion liability between the Defendant and the driver of the untraced vehicle because, as I observed in my liability judgment at [9]:
“It is trite law that even if the Defendant is only partly to blame for the accident, the doctrine of joint and several liability means the Claimant will be able to recover 100% of the value of her claim for damages from the Defendant, via his insurers.”
Following judgment on liability, the parties have been investigating the value of the claim. The Claimant was born on 27 June 1987. She was aged 29 at the date of the accident and is now 36 years old. She suffered catastrophic injuries as a result of the accident. Briefly stated she was found to have sustained a comminuted fracture of the C6 vertebrae. The spinal cord was damaged beyond repair such that she is now tetraplegic. She has some limited movement in her upper limbs. She has full litigation capacity.
The trial of quantum was listed for 12 days starting on 18 September 2023. The parties are to be commended for being able to reach agreement:
(1) On the form of the award of damages, namely a lump sum and a Periodical Payments Order (PPO) providing for annual Periodical Payments (PPs) in respect of care and case management index linked, in the usual way, to the 80 th centile of the relevant wage inflation indices published by the ONS, which in this case is ASHE 6135 and 6136.
(2) The figures for the lump sum and the initial annual PP, namely £6.25m and £325,000 respectively.
(3) That the lump sum award shall be a provisional award to reflect the risk of a syrinx developing. If that does occur, it is agreed that it cannot be treated, and the Claimant may return to Court to seek further damages.
I am grateful to Counsel for their extremely helpful skeleton arguments and for the collaborative manner in which the outstanding issue between the parties has been presented before me. This has included Mr Weitzman KC taking me through the various authorities and statutory provisions pointing out not only the passages upon which he seeks to rely but also those upon which Mr Todd KC seeks to rely.
The issue is phrased by Mr Weitzman in his skeleton argument as “how most appropriately to deal with the problem of double recovery” in respect of damages for the cost of future care.
The issue arises in this way. The Claimant's Lump Sum award will be placed in a Personal Injury Trust. As such, that sum is left out of account when assessing her means for the purpose of determining her entitlement to state funding for the costs of care. The same is true of the annual PPs in respect of care and case management. That was essentially the issue in Sowden v Lodge [2005] 1 WLR 2129 (CA) to which both Mr Weitzman and Mr Todd referred. I shall refer Sowden again below.
It is by no means certain that the Claimant will ever have recourse to seeking state funding in respect of the cost of her care. However, there is insufficient or no material before me which would enable me to find as a fact that the Claimant will never apply for state funding for her care, a finding which has been made in other cases. Accordingly, the possibility that at some point in the future the Claimant will apply for state funding in respect of care cannot be ruled out. Note that (as the law stands at present) it is only state funding for the cost of care that is in issue. There is no state funding for case management. The cost of that must be met from the Claimant's funds.
It is agreed that the relevant order in this case will include a provision to deal with this issue, probably in the form of an appropriate undertaking. It is agreed that the Claimant will not apply for state funding in any one year until the annual PP in that year has been used up. Further, in a witness statement dated 13 September 2023 the Claimant, who I am pleased to say was in Court during this hearing, said:
“I accept that if I need any top up of my care because all of my money from my periodical payment has been used up then I will need to apply for statutory top up. I have no desire to keep any statutory funding that I do not need for my care and have not used from my top up. I will annually repay any statutory funding which is not used for my care. I agree that if there is any excess money then I am happy to enter into any arrangement which the court thinks appropriate to ensure that the required repayments of statutory funding are made”.
The parties are agreed on a mechanism to be employed in the event that the amount full amount of state funding is not used and the state funder, for whatever unlikely reason, declines to accept repayment of that sum or, which I find to be extremely unlikely, the Claimant declines to make the repayment.
The issue between the parties is easy to state and arises only if the cost of care and case management exceeds £325,000 in any individual year. The working assumption is that the cost of case management will easily be met from the annual PP of £325,000 and only the additional costs of care will be sought from state funder(s). The various examples given by the parties do not, for the sake of simplicity, take account of the fact that the amount of the PP is likely to increase year on year because it is linked to the relevant wage inflation indices of the ASHE published by the ONS namely, in this case, 6135 and 6136. Accordingly, the annual figure of £325,000 is used throughout.
The Claimant's position is that the accounting process should be conducted on an annual basis. Thus if, in any particular year the Claimant does not spend all of the £325,000, the surplus is hers to do with as she pleases.
The Defendant's position is that the payment of PPs is in the nature of a running account. Thus, say in year 1 the Claimant spends only £300,000 on care and case management. There is a surplus of £25,000. If in year 2, the cost of care and case management is £380,000, the Claimant will require a state funded top up payment in respect of the care element. But in what amount? The Claimant says £55,000 being the difference between the PP of £325,000 and the actual cost. The Defendant says that before the Claimant applies for state funding, she must first utilise the previous year's surplus of £25,000 before applying for state funding of the balance of the cost, being £30,000.
Moreover, argues the Defendant, the “running account” principle means that the aggregate of surplus moneys not spent on care and case management in previous years falls to be accounted for in any future years where there is a shortfall between the PP of £325,000 and the actual cost of care and case management. Thus, if in years 1 to 5 inclusive there is a surplus of £25,000 per annum, the aggregate surplus is £125,000. If there are then three successive years where the cost of care and case management exceeds £325,000 by £20,000 per annum, the Claimant must utilise £60,000 from the accumulated surplus of £125,000 and so on. Only when the accumulated surplus is exhausted may the Claimant once more apply for state funding “top up” to meet any shortfall between the PP and the actual costs of care. As indicated above, the examples all assume that the cost of case management is easily paid for out of the £325,000 PP so the shortfall is purely in respect of care.
I have mentioned already that the Claimant has full litigation capacity and capacity to manage her own financial affairs. Therefore, this is not a case where the Court is being asked to approve a proposed settlement in accordance with the procedure in CPR Part 21. That said, I agree with the observations of the editors of Kemp & Kemp: The Quantum of Damages at para 23–042, which was brought to my attention by Mr Todd and agreed by Mr Weitzman:
“In the ordinary way, where the claimant is a protected party, the court needs to approve the settlement. Any PPO settlement for a claimant with capacity will invariably be converted into a court order and the court is arguably, to some extent at least, also approving the settlement by making the court order.”
The Law – Double Recovery
Unsurprisingly both Counsel agree on the law relating to double recovery as it has developed through the cases.
Put shortly, and dealing with cases where a Claimant seeks compensation from a...
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