Corbett v S Yorks HA

On May 4th 2007, HH Judge Bullimore, sitting as a Deputy High Court Judge, handed down judgment in Corbett v South Yorkshire Health Authority.

In April 2004 John Paul Corbett, acting through his mother as litigation friend, issued a claim against the South Yorkshire Health Authority contending that their predecessors were responsible for the brain injuries John sustained at birth. The Defendants admitted liability and interim payments have been made.

Represented by Harry Trusted, the case deals with two important topics: -

(i) The indexation of periodical payments.

The Judge held that where a claimant is to receive regular annual payments to cover future costs of care, those payments should increase each year. The increase should not be according to the Retail Price Index (RPI) but to the appropriate percentile of an index of carers' earnings. In making this finding, the Judge followed the judgment of Swift J in Thompstone v Glossop HA (November 2006) and rejected the submissions of the Defendant's counsel and experts to the effect that the RPI would be appropriate in these cases. Permission to appeal has been granted on this point and it is anticipated that the Court of Appeal will hear the argument in November 2007.

(ii) The Working Time Regulations and the Assessment of Care Costs

It was successfully argued that a carer who is responsible for meeting the night needs of the Mr Corbett was on duty during the night within the meaning of the Working Time Regulations 1998. Hence, the care package contended for by the claimant (which involved a roster of carers) was to be preferred to the "live-in" carer contended for by South Yorkshire Health Authority. This finding has not been appealed. The Judge held that if a carer has to provide any significant level of care of support at night, the carer will not enjoy the uninterrupted break required by the regulations. The Judge did not find that the care package proposed by the health authority was in breach of the Minimum Wage Regulations, but he doubted whether any person of sufficient calibre would be prepared to work for the wage offered.

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