The headline case of the month on damages is the Court of Appeal’s decision in Thompstone, which concerns the question of whether the Retail Prices Index (RPI) is the only index to be applied to increase annual periodical payments for the cost of future care and case management, and also what approach the court should take when the parties do not agree if the head of future loss should be included in the periodical payment order.
These were four conjoined appeals involving claimants who had suffered serious brain injuries at birth.
On the indexation issue, the question was whether an alternative instrument of indexation, ASHE 6115, was appropriate rather than the RPI. The court held that the question of whether the RPI should be replaced would depend on the alternatives available and was bound to be a comparative exercise. None of the objections to ASHE 6115 were well founded. It would not be appropriate to reopen the suitability of ASHE 6115 in future proceedings unless the defendant could produce evidence and arguments significantly different from what had been put forward so far.
On the question of what heads of damages should form part of the periodical payments order, the court held that indexation on the allocation of heads of damage between lump sum and periodical payment orders were inter-related and should be considered together. The claimant’s needs were not limited to those he demonstrated for the purpose of proving the various heads of damage but included those things that he needed to enable him to organise his life in a practical way.
The Judge should apply an objective test. Ultimately it is for the Judge to decide what order best met the claimant’s needs. The report of an independent financial advisor was likely to help the Judge. It would only be in a rare case that it would be appropriate for the defendant to call expert evidence to seek to show that the form of order preferred by the claimant would not best meet his needs.
The Court of Appeal refused the defendant’s leave to appeal to the House of Lords.
Tameside & Glossop Acute Services NHS Trust -v- Thompstone and others (2008) EWCA Civ 5, 17 January 2008.