Clinical Negigence Update

A brighter future for long-term care payments

Cases with large future care elements have, for a number of years, been capable of settlement on the basis of annual payments designed to meet claimants’ care costs for the rest of their lives. These payments have been guaranteed by the Government and paid free of tax.

At first blush, most claimants or those looking after their interests had thought that such a resolution represented the ideal answer, removing all uncertainty associated with assessments of life expectancy.

The picture, however, has been far from clear and, in many cases, expert financial advice has warned against the annual payment approach to settling cases. The problem has been that, until the recent appeal decision of Thompstone, the rate at which these payments has increased has been linked to the Retail Prices Index. However, the cost of care has, in the vast majority of years, run well ahead of the cost of that basket of items that go to making up the Retail Prices Index. As a result, a case did not have to run on for many years before claimants were finding themselves in a position of a ‘guaranteed shortfall’ against the cost of their care.

This unfair situation meant that there was a minority of cases settling on the basis of annual payments. The consequences were that claimants were either out-living their life expectancy and finding their compensation running out or families surviving claimants and receiving an unexpected windfall. Either outcome was patently unattractive and the robust decision of the Court of Appeal in favour of linking future annual payments to the cost of care (specifically by reference to ASHE 6115) is a victory for common sense.

Whilst unfortunately for those whose cases have concluded with either RPI-linked annual payments or with the lottery of a one-off lump sum, this decision has come too late. For injured claimants with long-term future care needs, however, the need to gamble or accept a guaranteed shortfall appears now to have disappeared.

It is understood that the defendants in the Thompstone case have sought permission from the House of Lords to appeal the Court of Appeal decision. In the light, however, of the robust and unanimous Court of Appeal decision, it is to be hoped that the House of Lords will reject that application, thereby allowing common sense to prevail and claimants to face their future with this issue, at least, clarified.

Legal and Financial Advice Day

Foot Anstey will be hosting a Legal and Financial Advice Day in conjunction with the national cerebral palsy charity, Scope, in London on Sat, 12 April 2008.

The event, which will be held at Inner Temple Hall, London, has been designed to provide crucial information to those working with and supporting individuals affected by cerebral palsy. Chaired by Elizabeth Anne Gumbel QC, the day will include presentations on clinical negligence claims, educational tribunal issues, Mental Capacity Act developments and advice on Wills and Trusts.

For further information or to book a place, please contact Scope at:

legalandinformationday12april08@scope.org.uk

February 2008

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