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LTL 21/7/2009 , Sheffield District Registry - Christopher Walker
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Where a severely disabled child and her family would be unable to use a property purchased with an initial interim award of damages unless it underwent adaptation, and were unable to afford adaptation unless a further interim payment was awarded, the application for such a payment was granted.
The applicant (J) applied for a further interim payment. J was a severely disabled child. The liability of the respondent hospital trust for her disability had been compromised on a 70/30 basis, with 70 per cent going to J. As the trial of issues concerning quantum was over a year away, the court had previously granted J an interim payment of £700,000 to enable her family to purchase a suitable property. That was done, but the property needed further adaptation so that it could accommodate J with her particular needs including provision of a room for a carer to provide J with professional care. J sought a further sum of £200,000 to allow the adaptations to take place, and also to purchase equipment and for case manager input and care. The trust contended that, following the Court of Appeal's decision in Eeles v Cobham Hire Services Ltd (2009) EWCA Civ 204, (2010) 1 WLR 409, no further interim sum should be granted over and above what had already been awarded. J submitted that the total value of the claim was between £5 million and £7 million, so that an interim award of £700,000 was not a substantial proportion. J contended further that the house purchased could not be adapted without more money being made available, and without being adapted, the family could not move in and J could not begin to get the care she obviously needed.
HELD: In determining whether to grant an interim payment, the assessment of special damages should be carried out on a conservative basis and, save in exceptional circumstances, the interim payment would be a reasonable proportion of that assessment, Cobham Hire considered. However, the situation in the instant case was a desperate one as far as J and her family were concerned. They were really caught, in that the property could not be used until adaptations were made. Were the application for a further interim sum to be refused, J and her family would remain in that situation until the trial. As it was likely, when the matter came to trial, that the judge would order a further sum to be paid as a lump sum, the instant case fell into the narrow category of exceptional cases where a further interim payment was appropriate. J was, therefore, awarded a further interim payment of £200,000.