Minimising Damages & Quantum Update

MINIMISING DAMAGES & QUANTUM UPDATE

14th February 2010

David Knifton

Exchange Chambers

Liverpool & Manchester

www.exchangechambers.co.uk

INDEX

Introduction and Basic Principles 4

The Principle of Full Compensation 4

The Qualification: Reasonableness 4

Minimising Damages: The Starting Point 6

Legal Issues 6

Evidential Issues 6

Presentation of the Defence: The Counter Schedule of Loss 8

Heads of Loss and How to Minimise Them 9

General Damages: PSLA 9

General Damages: Other Heads 11

Loss of Earnings 12

Evidence generally 12

“Lost years” claims 13

Multiplicand 13

Multiplier 15

Care and Case Management 18

Multiplier for Life Expectancy 18

Expert Evidence as to Care 19

Multiplicand: Professional Care 20

Local Authority Provision 20

Multiplicand: Gratuitous Care 22

Recent Cases on Care 23

Accommodation 29

Relationship between interim payments and possible periodical payment awards at trial 31

Therapies 34

Travel and Transport 37

Holidays 38

Aids and Equipment 39

DIY and Gardening etc 41

Miscellaneous 43

Introduction and Basic Principles

The Principle of Full Compensation

·  Wells v Wells [1999] AC 345 HL

“It was common ground between all parties that the task of the court in assessing damages for personal injuries is to arrive at a lump sum which represents as nearly as possible full compensation for the injury which the plaintiff has suffered.” per Lord Lloyd

“The premise of the debate was that as a matter of law a victim of a tort is entitled to be compensated as nearly as possible in full for all pecuniary losses…Subject to the obvious qualification that perfection in the assessment of future compensation is unattainable, the 100% principle is well established and based on high authority.” per Lord Steyn

“The aim is to award such a sum of money as will amount to no more, and at the same time no less, than the net loss.” per Lord Hope

“The fundamental principle which governs the assessment of damages to which each plaintiff is entitled is that an injured plaintiff should recover full compensation.” per Lord Hutton

The Qualification: Reasonableness

·  Heil v Rankin [2000] 2 WLR 1173 CA

“The aim of an award of damages for personal injury is to provide compensation. The principle is that ‘full compensation’ should be provided…This principle of full compensation applies to pecuniary and non-pecuniary damage alike…Compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the defendant, and it must not be out of accord with what society as a whole would perceive as reasonable.” per Lord Woolf MR

·  So eg claim for cost of pursuing pre-accident hobby in post-accident injured state would not be allowed if unreasonably large

·  Briody v St Helens & Knowsley AHA [2001] EWCA Civ 1010

CA dismissed appeal from Ebsworth J, refusing to award damages for the cost of surrogacy treatment, as the chances of success were so low that it would be unreasonable to require D to fund the enterprise

·  But note that reasonableness may also operate in C’s favour, in that certain claims may be held to be reasonable, even though not the cheapest option available

·  Rialis v Mitchell (1984) CA, unreported

“What has to be first considered by the court is not whether other treatment is reasonable but whether the treatment chosen and claimed for is reasonable.” per Stephenson LJ, cited with approval in Sowden v Lodge [2004] EWCA Civ 1370

·  Always remember that the burden of proof in relation to any head of loss rests upon the Claimant, and that it must be supported by evidence. C must prove that the loss has been or will be incurred, and the extent of that loss

·  However, where a failure to mitigate loss is alleged, the burden of proof rests upon the Defendant (GE Commercial Finance v Gee [2005] EWHC 2056 (Comm))

·  Note also that D must take his victim as he finds him. As long as personal injury is a foreseeable consequence of D’s breach of duty, D will remain liable for C’s loss and expense, notwithstanding that it may be out of proportion to the injuries sustained – the “eggshell skull principle” (Smith v Leech Brain [1962] 2 QB 405)

Minimising Damages: The Starting Point

Legal Issues

·  Is the head of loss recognised in law?

·  Is the head of loss prohibited by illegality (eg Hewison v Meridian Shipping [2002] EWCA Civ 1821, where C was not entitled to recover loss of earnings where he had lied to his employers in order to gain employment; Agheampong v Allied Manufacturing (2008) Central London CC, where C was not entitled to recover hire charges where his own, damaged car had been uninsured, as ex turpi causa)?

·  Is the head of loss prohibited by public policy (eg Mc Farlane v Tayside Health Board [2000] 2 AC 59 – no claim for unwanted birth of healthy baby)?

·  C is not entitled to recover notional or hypothetical losses (Dimond v Lovell [2002] 1 AC 384 – no claim for credit hire charges which C was not liable to pay)

·  C is not entitled to recover for losses which would have been incurred in any event

Evidential Issues

·  Seek to ascertain as accurately as possible C’s pre-accident status, compared with his post-accident position (eg work, leisure activities, home life etc)

·  Identify relevant sources of evidence – eg medical records, DSS records, occupational records etc

·  Identify suitable experts, ensuring that they have expertise and experience in the field. Beware of choosing an expert with a reputation as a “hatchet-man”!

·  Identify suitable counsel, and involve them in your team as early as possible. Even the best counsel cannot work miracles at trial unless the case has been appropriately prepared, with the right evidence available!

·  Remember: it is less easy to challenge a claim for an expense that has already been incurred (and has been shown to have a benefit), rather than one which is simply recommended by an expert

·  The quality of the evidence, whether expert or factual, is key to securing a good result – how is each head of loss to be challenged?

·  Evidence may include documentary evidence (estimates, invoices etc), internet research, statistics (eg ASHE), but should be put into an admissible format (eg by exhibiting it to a witness statement)

·  Be realistic. Concentrate on the major issues, rather than quibbling over trivial ones (Westmoquette)

·  Ensure you protect your position with a well-pitched Part 36 offer

·  Note that if C only narrowly beats the Part 36 offer, he may still suffer adverse costs consequences

·  Carver v BAA [2008] EWCA Civ 412

“More advantageous” is an open textured phrase which permits a more wide-ranging review of all facts and circumstances in deciding whether the judgment was worth the fight. Where C recovered £4686 (£4571 net of interest) and D had offered £4520, C had failed to obtain a judgment more advantageous than D’s offer, so no order for costs

·  Matthews v Metal Improvements [2007] EWCA Civ 215

Where C pursued a claim for psychiatric damage consequent upon a head injury, and subsequently developed an unrelated lymphoma with a good prognosis, his acceptance out of time of a Part 36 offer when the prognosis for his lymphoma worsened, resulting in reduced life expectancy, did not make it unjust for the normal costs consequences of late acceptance to follow. Changes in circumstances between the date of a Part 36 offer and the date of trial are contingencies inherent in litigation, and cannot of themselves normally justify a conclusion that D should be deprived of the benefit of his payment.

Presentation of the Defence: The Counter Schedule of Loss

·  Should be the most important document in the assessment of damages

·  Should be the work of an advocate, not a mathematician!

·  Must be clear, logical, well-presented and persuasive

·  Often best to follow the layout of C’s Schedule of Loss, but not if there is a better way of presenting D’s case

·  Narrative section should meet the case in context, to identify which heads of claim will be disputed

·  Calculation section should clearly set out how each head of loss has been calculated

·  Must indicate why relevant heads of loss are disputed: eg on grounds of causation, remoteness, deliberate inflation, malingering, or lack of evidence

·  In final form, may include valuations of general damages, as well as past and future losses and expenses

·  Should generally proceed on the conventional lump sum assessment basis, but identifying those heads of loss where PPOs may be appropriate

Heads of Loss and How to Minimise Them

General Damages: PSLA

·  Has C suffered a recognised injury (cf Grieves v FT Everard [2007] UKHL 39 – no compensation for pleural plaques: “Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortuous injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by the contemplation of that risk." (per Lord Hoffman)

·  In anything other than a straightforward case, seek disclosure of C’s medical records – Bennett v Compass Group [2002] EWCA Civ 642 is not authority for non-disclosure of medical records: “It is, if I may say so, beyond argument that medical records relevant to the claimant’s injury should be disclosed and should be made available for inspection by the defendant’s medical expert.” (per Chadwick LJ)

·  If appropriate, invite disclosure with irrelevant entries redacted, enabling Court to rule, if appropriate, on disclosure (Hipwood v Gloucester Health Authority [1995] PILR 447)

·  But note that pre-action disclosure of medical records is unlikely to be ordered, as they may contain material which will cause C to limit or withdraw her claim rather than disclose them, so pre-action disclosure would not be desirable to dispose fairly of the anticipated proceedings, assist resolution of the dispute or save costs (OCS Group v Wells [2008] EWHC 919 (QB))

·  Is there evidence of any pre-existing injury or constitutional condition which would have given rise to similar symptoms in any event?

·  Is there evidence of other conditions which would have restricted C’s activities in any event, either now or in the future?

·  Carefully check C’s medical reports for evidence of inconsistency (eg different location of sites of pain, inconsistent accounts given to different medical experts, inconsistencies between medical treatment records and account given to medico-legal experts)

·  If appropriate, question medical expert as to what he was told by C, or ask for copies of any contemporaneous notes made

·  Ensure your own medical reports are accurate, and contain as much detail as possible about what C claims he can and cannot do

·  Ask your expert to consider whether there were any inappropriate signs etc, and whether these can be explained as anything other than malingering

·  If errors come to light following disclosure, ensure they are pointed out as soon as possible

·  Ensure your expert understands his duty to the Court, and has not adopted the role of advocate (Williams v Jervis [2008] EWHC 2346 (QB) provides a cautionary tale!)

·  Consider DVD surveillance, but try to ensure it is contemporaneous with C’s medical examination or witness statement, and shows C’s actual abilities compared to claimed disabilities. Be prepared to meet the ‘good days/bad days’ argument

·  Apart from truly exceptional cases (eg the potential Olympian athlete etc), loss of amenity will rarely result in an enhanced award

General Damages: Other Heads

·  Loss of congenial employment – awards are generally modest

o  Willbye v Gibbons [2003] EWCA Civ 372 – “In my judgment it is important to keep this head of damages in proportion. The appellant is being compensated for being unable to pursue a career she thought she would have enjoyed. She never actually embarked on that career…and in financial terms she has been fully reimbursed, so this is really an award for a particular disappointment, which may or may not be prolonged.” (per Kennedy LJ)