Periodical payments in NHS cases
In the October Bulletin we set out the advantages and disadvantages of periodical payments. Robin Oppenheim, Doughty Street Chambers, has reported that the NHSLA has revealed that, where a defendant becomes a Foundation Trust, protection afforded by the NHS (Residual Liabilities) Act 1996 does not apply, and such a trust can become insolvent.
This means there is no reasonable security for a periodical payment. In such a case the NHSLA say that a periodical payment order would be ultra vires. Therefore, in any NHSLA case you must check whether the defendant is a Foundation Trust. If so, you have a problem if you want to get a periodical payment.
Even in a non Foundation Trust case, it appears from what NHSLA say that all the assets and liabilities of a non Foundation Trust should be transferred to a Foundation Trust. This is being investigated further.
A 47-year-old retained fire fighter suffered relatively minor physical injuries to the left knee when he was thrown over by a hosepipe. The claimant had been unable to work, became depressed and was later diagnosed with PTSD. He began to suffer with serious nightmares. He now finds it difficult to mix, is depressed, has frequent outbursts of temper which can lead to violence, or to his disappearing for hours on end. Subsequently he has no recollection of this.
The claimant’s psychiatric evidence was that PTSD had developed as he had an “egg shell skull” and if it were not for the accident he would not have developed the problems. The defendant’s evidence is that he would have become depressed upon retirement and anything could have triggered his subsequently developing PTSD.
He continued to suffer pain in the knee and there was muscle wasting. He walked with a stick. There was no identifiable physical cause for the level of symptoms. Video evidence showed him having no real level of disability. The claimant had some asymptomatic pre-existing degenerative change in both knees, the claimant’s evidence saying that the symptoms would have developed within seven to ten years, the defendants within one to two years.
The Judge awarded £30,000 general damages to include £2,000 for loss of congenial employment. The total award was £121,117.27.
Mason -v- Derbyshire Fire Authority. Derby County Court 7 September 2005.