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A roundup of the recent decisions relating to periodical payments, alternative dispute resolution, and duty of care.
Periodical payments for care considered
WNA v NDP [2023]
This claim arose from a road traffic incident and the judgment concerned the appropriate means to address the issue of double recovery in relation to damages for future care costs.
Paragraph 7 of the judgment states:
“The issue arises in this way. The Claimant’s Lump Sum award will be placed in a Personal Injury Trust. As such, that sum is left out of account when assessing her means for the purpose of determining her entitlement to state funding for the costs of care. The same is true of the annual PPs [periodical payments] in respect of care and case management.”
The judge held that periodical payments for care and case management should be treated solely as damages for services provided during the relevant year. The claimant was therefore not obliged to carry forward any surplus to future years or spend all of the rolling balance of periodical payment funding before any application could be made for statutory funding. Rather, the claimant was free to spend any surplus in a single year as she pleased and so no questions of double recovery in future years would arise. As a further safeguard against double recovery, the claimant agreed a mechanism to account for any surplus of statutory funding received.
Contact: Christopher Malla
Court of Appeal confirms court can order parties into alternative dispute resolution (ADR)
Churchill v Merthyr Tydfil County Borough Council [2023]
On 29 November 2023, the Court of Appeal handed down its decision confirming that the court can stay proceedings and compel parties to engage in non-court-based dispute resolution so long as it does not impair the very essence of the claimant’s Article 6 of the Human Rights Act 1998 (right to a fair trial).
The Court of Appeal held that it can lawfully stay proceedings for the parties to engage in a non-court based process. However, it refused to lay down fixed principles about the relevant factors in determining whether the alternative process is appropriate.
Each case will be considered on its own facts and parties will need to consider the merits of the particular ADR process. Any party who chooses not to engage in any form of non-court based adjudication will need to be able to justify that position in light of the Court of Appeal’s decision and its approval of non-court based adjudication generally.
On the wider topic of promoting ADR and the role of the courts, in April 2024, the Civil Procedure Rule Committee also launched a consultation following Court of Appeal’s decision in Churchill v Merthyr Tydfil [2023].
Contact: Christopher Malla
Related items:
- 'Alternative’ dispute resolution: key developments in 2024
- Court has the power to order parties to partake in ADR
Irish High Court considers whether doctors owe a duty of care to their patients’ relatives
Germaine v Day (10.07.2024)
The decision of the High Court in Germaine has further paved the way for a more nuanced interpretation of the test laid down in Kelly v Hennessy, particularly when determining whether a duty of care arises between a doctor and the relatives of a patient injured in a medical negligence context. The Court acknowledged that this category of claim must be dealt with cautiously so as to avoid “wide and uncontrolled liability”.
In analysing whether a duty of care was owed, the Court commented that proximity between the hospital and patient’s relatives under an “assumption of responsibility” was not established in this case. Considerations of “relational, spatial and temporal proximity” were important but the Court emphasised that proximity alone does not give rise to a duty of care.
Although the Court did not ultimately have to determine the hospital’s duty of care to the relatives in this particular case, the Court has carefully laid out the balanced approach that will need to be taken by the next Court which comes to determine this intricate question.
Contact: Joanne O’Sullivan
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