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High Court, in proceedings concerning the structure of payments of damages to a ward of court, determines a number of issues in respect of recent periodic payment legislation, and rules that: (a) 2017 legislation does not oust the Court's jurisdiction to make lump sum awards; (b) parties may agree to their own price index to base the payment on; c) the Court may not adjust the periodic payment other than in accordance with the harmonised index of consumer prices (HIPC); (d) that no competent financial expert would recommend a periodic payment order linked to the harmonised index of consumer prices to provide for the future care needs of a plaintiff; and e) in its current form therefore, the legislation is a dead letter as it is not in the best interests of a catastrophically injured plaintiff to apply for a PPO under the current legislative scheme. The Court thus refers the matter back to the President of the High Court to make arrangements for the plaintiff as a ward of court.
Periodic payments legislation – Plaintiff a minor who was successful in his medical negligence action – trial of four issues ordered by President – whether the Civil Liability Amendment Act 2017 ousts the jurisdiction of the High Court to make a lump sum as either final or interim payment – no power of periodic payment is supplementary and discretionary – what is in the best interests of the Plaintiff in this case – payment index recommended in legislation incapable of being recommended and thus not in Plaintiff’s best interest – parties can agree to their own index which could be substituted at the Court’s discretion – whether the Court is precluded from fixing an increase in other than the amount specified in the HICP – yes – Court must fix increase or adjustment by reference to HICP -whether and to what extent the Court retains jurisdiction to identify a means by which the index of payment can be achieved to avoid the risks of compensation falling behind wage and medical inflation – Court retains same jurisdiction as before 2017 Act – may still make lump award – may still make interim award where in the interests of justice – may still make payment as against ultimate liability – matter referred back to President to make arrangements for Plaintiff as Ward of Court.
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