UK: Sowden One Year On - Who Is Footing The Bill?

Last Updated: 28 February 2006
Article by Charles Brown

Originally published in The Insurance Law Quarterly: Winter 2005

Insurers dealing with catastrophic injury claims have seen a relentless rise in the level of damages awarded as claimants display ever-greater ingenuity in the formulation and presentation of claims. Sowden appeared to offer a means by which the care element of such claims might be reduced. How in practice are the courts reconciling the principle that the defendant should compensate for the loss which he has caused with the duty of local authorities to provide care for those in their area who need it?

The Sowden/Crookdake principles

In Sowden the defendant achieved a substantial saving as a result of the contribution to the claimant’s care costs made by the local authority. Although the onus is on a defendant to prove that local authority provision is adequate and meets the claimant’s reasonable needs, the Court of Appeal concluded that if this is achieved, then a claim for private care costs will fail. Further, if the claimant’s needs exceed local authority provision (here, the Court was keen to point out that there may be a difference between what a claimant reasonably requires - which can be claimed as damages - and what a local authority or PCT would be likely to provide in discharging its statutory duty), then defendants will only be required to meet the excess. Also welcomed by insurers was the seeming willingness of the court to take into account the power to compel a local authority to perform its statutory duties.

Although the decision is a positive one for insurers, a note of caution was sounded by the conjoined appeal of Crookdake v Drury (2004) which illustrated the importance of defendants being able to adduce the necessary evidence to prove the availability, and likely continuation, of local authority funding. Here the defendant failed to discharge that burden and so was held liable for the entirety of the claimant’s future care costs.

Periodical payments

A fly in the ointment for insurers is the advent of the power to impose periodical payments. These have brought the need for the courts to assess accurately the local authority/PCT’s likely future contribution to care costs into sharper focus. Care costs may be the only item covered by a periodical payments order and if the wrong assessment is made, the extent of the resulting over-compensation or under-compensation will be starkly apparent.

Claimants are likely to argue that the power under Section 2(9) of the Damages Act 1996 to order periodical payments which will escalate at a rate greater than RPI (Retail Price Index) should be exercised. This section enables claimants to re-run the argument (rejected in Cooke v UBHT (2003)) that a reduced discount rate (or higher multiplier) should be used for the quantification of future care costs. The issue of quantification of future care costs is expected to come before the courts again in the forthcoming months and claimants will no doubt argue that Section 2(9) provides an express statutory power of a kind which the claimants in Cooke could not rely on. Periodical payments therefore have the potential to increase not reduce future care costs.

How is Sowden being applied?

In Walton v Calderdale Healthcare NHS Trust (2005), the court opted to award periodical payments to cover the claimant’s future care costs. The care experts on each side agreed an annual figure. The defendant’s argument that there should be a reduction in that figure to take account of the likely contribution from the local authority was rejected on the basis that the defendant had failed to produce evidence to prove that the local authority was likely to contribute. The judge also remarked that even if the onus had been on the claimant, he might well have discharged it because of the risk that non means-tested benefits from the local authority may not remain available in the future.

More strikingly, in Godbold v Mahmood (2005), the court again opted for periodical payments for future care. The judge in that case rejected the defendant’s Sowden argument for a number of reasons which, rather surprisingly, included a lack of evidence about the extent to which the local authority concerned would discharge its statutory duty, and taking judicial notice of the fact that some other local authorities had shown reluctance to discharge their duties. Rather more compellingly, the judge was not satisfied that local authority funding would remain available throughout the time that the claimant needed it.

By contrast, in L.B. Islington v UCL Hospital NHS Trust (2005), in which a local authority (rather than an injured claimant) sought to recover the cost of providing residential accommodation to a patient who had been injured by the defendant’s clinical negligence, the court decided that the local authority must bear the care costs because that was where Parliament had determined that the costs burden should lie.

The future

These decisions illustrate just how difficult it will be for defendants to obtain sufficient evidence to persuade courts to take state funding into account in the assessment of future care costs.

One year after Sowden, the benefits which insurers hoped to derive from it appear to be illusory rather than real. In the new era of periodical payments, that trend is likely to be more pronounced. The complex web of statutory provisions regulating the duties and powers of local authorities/PCTs cries out for some overhaul. In Sowden, the Court of Appeal suggested that only legislation could bring any "rationality" to this area of the law. If Parliament does intervene, it is difficult to imagine that it will result in any improvement of the position of defendants or their insurers. The trends elsewhere in personal injury litigation suggest that the burden of funding appropriate care is likely to fall more onto those who caused the need for such care and less onto public funds (e.g. section 150 of the Health & Social Care (Community Health & Standards) Act 2003 - not yet in force). If Parliament does not intervene, it seems that the courts will treat the tortfeasor’s duty to compensate as taking precedence over the local authority/PCT’s duty to provide.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.