Ensuring periodical payments keep pace with care costs is vital if the damages regime for future losses is to survive, argue Helen Niebuhr and Nick Martin


We worked together on the recent case of Garrigan v South Central Strategic Health Authority. The case was reported as the highest lump sum award for a cerebral palsy case involving a patient. Negotiations over periodical payment-based orders were a major part of the run-up to trial before the lump sum settlement was agreed. A review of recent case law and implications of pending decisions on indexation follows.



In November 2006, the judgment of Mr Justice Swift was delivered in the case of Lee Carl Thompstone v Tameside & Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB). Twelve months on, a further three cases - Corbett v South Yorkshire HA, Sarwar v Ali & Motor Insurers Bureau, and RH v United Bristol Healthcare NHS Trust have considered periodical payments for future losses. The Thompstone appeal was heard in the Court of Appeal in November.



Background

Following the Damages Act 1996, courts may order that damages for future losses are paid in periodical instalments rather than a lump sum. Lump sum calculations are based on the claimant's life expectancy as predicted by clinicians and statistics. The only real certainty is that the predicted life expectancy will be wrong. Claimants die earlier, leaving unspent damages, and more worryingly (for seriously injured claimants) they live longer than predicted, so the damages may run out. Historically, a lump sum, if well invested, could protect the damages against running out by capital growth in the earlier years when less care is needed.



Periodical payments are paid for as long as the claimant lives, but problems arise over indexation of annual sums. Payments need to have sufficient value to pay for what is needed in the future.



The Damages Act links periodical payments to the retail prices index (RPI), although subsection 2(9) provides for an alternative option to disapply or modify this link.



What's the problem?

The RPI is not based on the cost of carers' earnings, which forms the major part of future losses in larger claims. Earnings inflation (AEI) has outstripped RPI over the last 40 years by about 1.73% per annum (pa). Since 1998, the differential between the RPI and ASHE 6115 (the Annual Survey of Hours and Earnings: Occupational Earnings for Care Assistants and Home Carers) is around 2.19% pa. The cost of paying for carers' wages is likely to increase at a higher rate than RPI in the future. This makes a periodical payment at RPI insufficient to buy the care it was intended for (see table).



Applying historic differentials, an income need of £100,000 per year falls behind even in the short term. Ten years post-settlement, there is a £26,000 per annum income shortfall. The longer the claimant lives, the worse it gets. Claimants in the Thompstone cohort have therefore tried to disapply or modify RPI.



Retail price shortfall

Ensuring that periodical payments keep up with care costs in the future is vital if the regime is to survive. Seriously injured claimants need to be able to pay for their care for the next 30 to 50 years or so, and care costs keep rising faster than inflation.



When we were negotiating possible settlement for the Garrigan case, we considered settlement models which included RPI-linked periodical payments. Financial modelling showed that RPI linking was only viable with an additional seven-figure lump sum to run alongside and invest to set off the RPI periodical shortfall. RPI linking was considered, as the family was reluctant to get tied up in the Thompstone appeals. There was a serious risk that damages paid by RPI periodical payments would prove insufficient. Ultimately, a conventional lump sum of £6.6 million was agreed. Financial modelling on this lump sum indicated that it was enough for his lifetime needs, even if carers' wages continued increasing faster than RPI.



Other indices

The claimants in the Thompstone cohort tried to maximise the lump sum part of their award by taking future losses other than future care and case management needs as a lump sum. A range of alternative indices were presented to the court. In all cases, the most appropriate index identified was ASHE 6115, a measure that relates to the earnings levels of home carers. ASHE 6115 is further split into centiles, reflecting the weighted hourly rates for carers appropriate to each case. Evidence of care experts is fundamental to selection of the centile. To arrive at the best measure, the Thompstone cohort of claimants instructed Dr Wass, a labour economist. In accordance with her opinion, RPI was disapplied and substituted by ASHE 6115, based upon centiles matching the specific care packages being considered.



The opposition to alternatives to RPI are principally based on cost. Defendants called evidence from a pay data analyst and forensic accountant, although both started from the difficult position of conceding that earnings inflation did, and would continue to, outstrip RPI.



The meaning of 'modifying' was scrutinised. It was argued unsuccessfully that proper interpretation would not permit replacement of RPI, merely modification.



In RH, the defendant called evidence from a company employing carers that in existing care regimes, care cost inflation was lower than RPI. This was found to be unsustainable and only possible due to cross-subsidy from other areas of the business.



The RPI was argued as acceptable where the claimant would gain equity growth on a property purchase. House prices grow at a rate above RPI and without any offset it would provide a windfall to claimants. Mr Justice Lloyd Jones in Sarwar demolished this argument, saying: 'The argument lacks a factual basis. It rests on an assumption that a historic trend which shows house prices rising at substantially above the general rate of inflation will continue.'



The same argument was run again in RH and, unsurprisingly, Mr Justice Mackay agreed with the powerful dismissal of this argument in Sarwar.



Distributive justice or affordability

NHS trusts have been keener on periodical payments than insurers. The NHS faces financial constraints with budgeting and cash-flow, and prefers periodical payments. Insurers tend to prefer the finality of the lump sum, given the potentially higher long-term payout that a periodical payment entails. The court in Flora decided that the affordability of periodical payments is not an issue that the court can take into consideration. The NHS defendants in Thompstone, Corbett and RH ran a 'distributive justice' argument, saying that it is different to affordability.



Mr Justice Mackay agreed with Mr Justice Swift in Thompstone, who thought distributive justice was affordability but by another name.



Finding a balance

A balance must be struck with the lump sum and periodical payment. The NHS in RH expressed a preference to pay all future losses periodically, rather than by lump sum. The claimant argued that sufficient capital was essential for flexibility and to meet unforeseen contingencies. The judge agreed with this. He also saw the court's role as one of ensuring that the correct allocation between capital and income was based on proper financial advice.



Split liability

Until Sarwar, it was assumed that settlement could not be on a periodical basis if the award was reduced due to split liability. There seems no point in a claimant recovering partial damages covering a proportion of the cost of his care every year as it will not fund the care needed. Surprisingly in Sarwar, that is exactly what the judge ordered.



Sarwar differed from other cases under consideration. It was a road traffic accident and the award was reduced by 25% for contributory negligence. The other cases were full liability claims. Also, the claimant initially asked for periodical payments for his future care and case management, and also his loss of earnings, linked to an earnings-related measure.



Care and case management were dealt with by ASHE 6115. Loss of earnings, however, was linked to the 90th percentile of aggregated ASHE male full-time earnings.



The claimant, a tetraplegic with full capacity, sought periodical payments, although that was unusual for a claimant with a reduced award, as he would suffer significant shortfalls. By contrast, if a lump sum was ordered and properly invested, the opportunity existed where capital growth could reduce his shortfall. The approach in Sarwar was that the periodical payment for loss of earnings added to those for care should make up the care costs shortfall. A bit of a gamble, perhaps?



Just before closing submissions, the claimant made a last request for a lump sum settlement. The court ordered periodical payments. This is an example of the court using its radical new power.



What next?

The Court of Appeal's judgment in Thompstone is likely in January 2008. Thus far, defendants have had a 4-0 drubbing. The NHS has shouldered most of the burden. However, in the recent case of Ure v Ure (currently unreported), an insurer settled a claim on a periodical payment basis linked to an ASHE 6115 uplift.



With hindsight, issues raised at first instance were likely to fail, as it is clear that periodical payments for care and case management linked to RPI will not keep up with the care costs. It is difficult to see how this fundamental point is going to pass any 'fair and reasonable' test.



Meanwhile, current cases are settling in part, with the periodical payment issue being hived off to await the outcome of Thompstone. If Thompstone ultimately goes to the House of Lords, it could take a long time to finalise. If cases are settled with RPI linkage, without an extra balancing lump sum to set off shortfall, lawyers could be considered negligent if the periodical payments diverge from the costs of care in the future.



Where settlements are being agreed for periodical payments, subject to indexation at the measure decided in Thompstone, the shortfall problems will arise if the Court of Appeal reverts Thompstone back to RPI. A safer route may be to settle with an agreement for an acceptable lump sum on the basis that the claimant can argue for this if RPI is determined without re-opening all of the other quantum issues. If Thompstone does revert to RPI, then the periodical payment regime may struggle to survive.



New head of loss?

Every year, the appropriate payment will need to be recalculated according to the correct measure, and claimants will need to ensure that they are getting the right increase. That will incur cost, which arguably ought to be added to the claim.



Funding payments

Affordability may be reconsidered, especially if the insurance lobby becomes more involved. Some insurers in certain situations are unable to self-fund periodical payments, as they cannot satisfy the criteria on security of continuity of payment grounds. In those circumstances, if periodical payments are ordered, the defendant may need to buy an annuity to meet its liability. There are reasons why that may be impossible, primarily due to a lack of annuity providers and difficulty offering anything other that RPI-linked payments. Annuities linked to RPI + 2% pa, which gets nearer to the earnings differential, cost at least double the equivalent conventional lump sum valuation.



This may be one further reason why insurers, perhaps taking a longer-term view than the NHS, have shown little interest in pushing periodical payments or arguing indexation.



Uneasy coexistence

Finally, there will remain the uneasy coexistence between the lump sum settlement, where the calculation is by way of the discount rate, a method based on RPI and index-linked gilts, and periodical payments linked to other indexation. History has proven that well-managed and invested lump sums have produced returns over and above RPI, but at potentially greater investment risk. After Thompstone, the principles of Wells v Wells may need to be reconsidered.



Next move

Practitioners await the Thompstone outcome. In the meantime, settlements based on periodical payments linked to the outcome in Thompstone must be coupled with a sufficiently large lump sum to allow the investment to offset any shortfall or ensure they are able to re-open arguments for a lump sum if Thompstone reverts back to RPI. Claimants may also want to agree a lump sum alternative on the basis that they can have that instead if RPI is decided.



To make such important decisions, lawyers are dependent on reliable financial modelling of possible combinations of lump sums and periodicals. Financial advice is needed to consider how any proposed settlements work, and when and if shortfalls emerge on the claimant's future care costs. The fact of a claimant having had financial advice and understood risks has also been influential in achieving their desired form of award in recent cases.



Given the rejection of RPI by the courts in the Thompstone cohort, the Court of Appeal may favour ASHE 6115. Final settlements may await the outcome of Thompstone, but if the appeal moves on to the House of Lords, further delay may encourage more imaginative settlements.



Helen Niebuhr is head of clinical negligence at Oxford firm Darbys and Nick Martin is managing partner of the Nestor Partnership, specialist personal injury and clinical negligence independent financial advisers





Years from Settlement - RPI@2.50% - AEI@RPI+1.73% - ASHE6165@RPI+2.19% - Cum Diff RPI/ASHE 6115

(all values in £s)

1 - 100,000 - 100,000 - 100,000 - 0 - 0

3 - 105,063 - 108,639 - 109,600 - 4,537 - 6,727

5 - 110,381 - 118,024 - 120,122 - 9,740 - 23,519

10 - 124,886 - 145,189 - 151,059 - 26,173 - 119,400

20 - 159,865 - 219,716 - 238,890 - 79,025 - 645,842

30 - 204,641 - 332,498 - 377,790 - 173,150 - 1,910,554

40 - 261,957 - 503,172 - 597,452 - 335,494 - 4,463,842

50 - 335,328 - 761,455 - 944,832 - 609,505 - 9,209,882