Court of Appeal backs claimants

It is very good news that on 17th January 2008 the Court of Appeal handed down a landmark judgment supporting claimants in a series of very serious personal injury claims where there are substantial future care costs as a result of serious and often catastrophic injury. 

These cases frequently involve the need to pay wages to carers for lifelong care and support for injured children.  Many of these claims are brought against the NHS.

Earnings, including carers earnings,  have always gone up faster than the Retail Prices Index, and presumably that will continue to be the case. So increasing the anual payment to be made by insurance companies and the NHS by referance to the RPI will produce an ever diminishing sum in real terms to pay for the cost of care. 

The Court accepted that over a long period this would result in the claimant not having enough to meet their needs and the shortfall would be substantial.  Conversely the insurer and the NHS would have a windfall at the injured person’s expense.

In spite of this the Defendants argued that the RPI was the right index to use.  The Court rejected this firmly and supported the principle of full compensation.  It selected ASHE 6115 as the right index to achieve that objective.  ASHE 6115 refers to a statistical estimate of the earnings of carers in the UK and is collected and published by the Office for National Statistics anually.

The Court of Appeal’s view appears to have been that barring any new and substantial issues in relation to the appropriateness of ASHE 6115 the argument should be considered closed in the Claimants favour.

The Court said ” We hope that as a result of these proceedings the NHS, and other Defendants in proceedings that involve catastrophic injury, will now accept that the appropriateness of indexation on the basis of ASHE 6115 has been established after an exhaustive review of all possible objections to its use, both in itself and as applied to the recovery of costs of care and case management.  It will not be appropriate to re open that issue in any future proceedings unless the defendant can produce evidence and argument significantly different from, and more persuasive than, that which has been deployed in these cases.  Judges should not hesitate to strike out any defences that do not meet that requirement”

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