Psychology | Economical psychology » David Knifton - Minimising Damages and Quantum Update

Source: http://www.doksinet MINIMISING DAMAGES & QUANTUM UPDATE th 14 February 2010 David Knifton Exchange Chambers Liverpool & Manchester www.exchangechamberscouk Knifton@exchangechambers.couk 1 Source: http://www.doksinet INDEX Introduction and Basic Principles . 3 The Principle of Full Compensation . 3 The Qualification: Reasonableness . 3 Minimising Damages: The Starting Point . 5 Legal Issues. 5 Evidential Issues . 5 Presentation of the Defence: The Counter Schedule of Loss . 7 Heads of Loss and How to Minimise Them . 8 General Damages: PSLA . 8 General Damages: Other Heads . 10 Loss of Earnings . 11 Evidence generally. 11 “Lost years” claims . 12 Multiplicand . 12 Multiplier . 14 Care and Case Management . 17 Multiplier for Life Expectancy . 17 Expert Evidence as to Care . 18 Multiplicand: Professional Care . 19 Local Authority Provision . 19 Multiplicand: Gratuitous Care . 21 Recent Cases on Care . 22 Accommodation . 28 Relationship between interim

payments and possible periodical payment awards at trial . 30 Therapies . 33 Travel and Transport . 36 Holidays . 37 Aids and Equipment . 38 DIY and Gardening etc . 40 Miscellaneous . 42 2 Source: http://www.doksinet 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 lossesSubject 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 providedThis principle of full compensation applies to pecuniary and non-pecuniary damage alikeCompensation 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 3 Source: http://www.doksinet • 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) 4 Source: http://www.doksinet 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 “hatchetman”! • 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 5 Source: http://www.doksinet • 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. 6 Source: http://www.doksinet 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 7 Source: http://www.doksinet 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) 8 Source: http://www.doksinet • 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 9 Source: http://www.doksinet 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 careerand 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) o Noble v Owens [2008] EWHC 359 (QB) Field J - £5,000 awarded to market trader/builder who was now incapable of work, having regard to the substantial loss of earnings already awarded o Hopkinson v MoD [2008] EWHC 699 (QB) Michael Harvey

QC £3,000 awarded to merchant seaman who could no longer pursue that career o Law Commission paper No 257 – “merely an aspect of pain, suffering and loss of amenity” • Handicap in the labour market – but more commonly claimed as loss of earnings/earning capacity • Loss of ability to care for others – Lowe v Guise [2002] EWCA Civ 197 • Claims for ruined holidays etc are generally part and parcel of PSLA, and should not result in a separate award for the cost of the holiday (but cf cancellation costs) • Challenge speculative losses: Priestley v Maclean (1860) 2 F&F 288: “supposing a lady to have been injured and disfigured in a railway accident, she could not say that she ought to recover damages because she was prevented from going to a ball, at which she might have met a rich husband.” (per Erle CJ) 10 Source: http://www.doksinet Loss of Earnings Evidence generally • Ensure reliable evidence of pre-accident earnings (13 weeks may not provide a

reliable average, where earnings variable) • Net figures must be used – BTC v Gourley [1956] AC 185 • Ensure other deductions are taken into account – eg sick pay, CRU, Workers Compensation Act payments etc • Would C have continued to earn at that level? – eg if seasonal variations etc – Barry v BTC [1954] 1 Lloyd’s Rep 372 • Is C in a position to prove any pay rises to date of trial? – if AEI/RPI has been used, check with employer what pay rises would actually have been given • Does C have evidence to prove loss of promotion? • The loss must be C’s, not that of the partnership or company (Ward v Newalls Insulation [1998] 1 WLR 1722) • The expenses incurred (eg travel) in order to earn should be deducted, although rarely applied in practice – Eagle v Chambers [2003] EWCA Civ 1107 • Any saving to C which is attributable to being maintained at public expense in hospital shall be set off against any income lost – Administration of Justice

Act 1982 s5 • Where there are too many uncertainties about C’s potential earnings, a lump sum is more appropriate than a multiplier/multiplicand approach – Blamire v S Cumbria HA [1993] PIQR Q1, CA • Alternatively, is a split multiplier approach appropriate? • Should future earnings be discounted for loss of a chance, or is a ‘career model’ approach preferable? – Doyle v Wallace [1998] PIQR Q146; Herring v MoD [2003] EWCA Civ 528: • Does the medical evidence support the period of absence from work? • Has C unreasonably declined an offer of alternative employment? • Seek evidence from local press, job centre etc as to available vacancies 11 Source: http://www.doksinet “Lost years” claims • Where C’s life expectancy is reduced, he is entitled to pursue a claim for earnings he might have received in the “lost years”, subject to deduction of normal living expenses (typically 50%) – Harris v Empress Motors [1984] 1 WLR 212 • It may be

more economical to settle a “lost years” claim during C’s lifetime than to await a fatal accident claim on behalf of dependants, where the deduction for living expenses will typically be lower - Thompson v Arnold [2007] EWHC 1875 (QB) • Whipps Cross Univ Hosp v Iqbal [2007] EWCA Civ 1190 Claims for lost years are not restricted to adults, or to those with dependants, but an award to a young child was impermissible on authority of Croke v Wiseman [1982] 1 WLR 71, even though inconsistent with Pickett v British Rail [1980] AC 136 Multiplicand • Limbu v MoD [2008] EWHC (QB) Philip Mott QC Court calculated future loss of earnings of Ghurka on conventional multiplier/multiplicand approach, based on very limited residual earnings capacity in Nepal (discounted from £400 to £200pa to reflect difficulties in obtaining employment due to injuries), rejecting Ds’ argument that he should mitigate his loss by working in UK and re-locating his family here, and rejecting submission

that lump sum Blamire approach should be used: “In general, the court will try to produce a full quantification, and the global sum approach is very much a method of last resort.” • Palmer v Kitley [2008] EWHC 2819 (QB) HHJ Seymour QC Where C, a 16 yr-old A level student, had suffered multiple injuries in an RTA, resulting in residual back pain and minor hip stiffness that prevented her from a heavy physical job, the judge concluded that there were serious issues as to whether she had any prospect of becoming a midwife and continuing in that profession to age 65, having regard to her undistinguished GCSE results (6 Grade Cs), a lack of evidence as to how 12 Source: http://www.doksinet well she would need to do to gain entry to university, the “substantial possibility” of her not achieving the required A level grades, the possibility that (having married at age 18) she would have chosen to marry rather than pursue her studies, and the fact that, her husband being in the

RAF, she might have had to leave employment in one place with no certainty of a job near the place of his posting. In a case involving more imponderables than Blamire, Court could only be concerned with disadvantage on labour market in a very general way. £30,000 awarded, on basis that “the exercise of awarding damages for disadvantage on the open labour market does not depend upon precise calculation. It is more a matter of impression.” • Sarwar v Ali [2007] EWHC 1255 Lloyd-Jones J Where C would, despite lower than expected GCSEs, have returned to college to do higher qualifications, and obtained degree and job in finance or accountancy, it was appropriate to take single multiplicand for average career earnings, rather than a stepped approach • Leesmith v Evans [2008] EWHC 134 (QB) Cooke J Claim for future loss of earnings based on intention of warehouse lighting technician to become freelance lighting technician/designer in rock music industry assessed on conventional

basis, despite uncertainties. Prospects of C becoming lighting designer were so remote as to be speculative, and chances of change from lighting crew technician to manager etc did not require separate assessment, as earnings potential was not significantly altered, so appropriate to adopt ‘career model’ approach, with adjustments to multiplicand to take chances into account (Brown v MoD). Single multiplicand of £45,000 gross (£33,001 net) adopted, to reflect range of career earnings of £20,000-£55,000. • Hopkinson v MoD [2008] EWHC 699 (QB) M Harvey QC Earnings of seaman but for accident assessed by 10% reduction for risk of seasonal unemployment, but residual earnings capacity (assessed by 13 Source: http://www.doksinet employment consultant at £11,000) reduced by 50% for disability and likelihood that work would be part-time • Crofts v Murton [2008] EWHC (QB) HHJ Collender QC Although only 25% of applicants were successful, there was a strong likelihood on the

evidence that C would have been promoted to Commander or Ass’t Chief Constable by Jan 2008. Loss of earnings would therefore be assessed on the basis of the average pay between those ranks, discounted by 30% to reflect the loss of a chance, with a further deduction for travel expenses to/from work. • Smith v East & North Herts Hosp [2008] EWHC 2234 (QB) PenryDavey J Future loss of earnings claim as teacher by 7 yr-old girl discounted by 40% for costs of working and possibility of career breaks etc (though possible career breaks to raise family are already taken into account in Ogden Tables A-D, see para 40 of the Notes) Multiplier • What is C’s intended/likely retirement age? • Check age of entitlement to state pension: http://pensions.directgovuk/en/state-pension-age-calculator/homeasp • Obtain medical evidence as to whether C’s post accident condition means he is “disabled” under the Disability Discrimination Act 1995, so Tables B and D apply to

multiplier for residual earnings – check Guidance notes available on www.directgovuk • Bear in mind that adjustment of multiplier depends on the circumstances of each case, so higher or lower adjustments may be appropriate • Sarwar v Ali [2007] EWHC 1255 Since C was unlikely to be entitled to state pension until 68, multiplier assessed on basis of that retirement age: “the expectation in his generation is that people will go on working longer because of the ability and need to do so.” per Lloyd-Jones J 14 Source: http://www.doksinet • Eaton v Johnston [2008] UKPC Cayman CA erred in reducing multiplier for loss of earnings of limbo dancer, guitar player, fire eater and tiler by ⅓ for possibility of early death and accelerated receipt, since already taken into account in Ogden Tables • Conner v Bradman [2007] EWHC 2789 (QB) HHJ Coulson QC Multiplier for residual earnings of 50 yr-old man whose knee injury prevented him returning to work as mechanic adjusted by

0.665 (mid-way between Table A and B), rather than 0.49 (Table B), as he had re-trained as taxi driver and would probably be able to cope with that work • Limbu v MoD [2008] EWHC (QB) Philip Mott QC The agreed pre-accident earnings multiplier to age 55 of 13 was discounted to 10 (adjustment of 0.77) for contingencies, with the same multiplier applied to residual earnings capacity. • Leesmith v Evans [2008] EWHC 134 (QB) Multiplier for residual earnings as disabled man adjusted by 0.6, rather than 0.54 (as Ogden Table B), as the multiplicand had already taken some account of his disability • Hopkinson v MoD [2008] EWHC 699 (QB) Multiplier for residual earnings of former merchant seaman adjusted by 0.9, rather than 081 (Ogden Table A), as that was too pessimistic, given that some risk of unemployment had already been taken into account in assessing multiplicand • Crofts v Murton [2008] EWHC (QB) HHJ Collender QC Discount for contingencies assessed as 0.95, rather than 081

(as in Table A), having regard to C’s individual circumstances 15 Source: http://www.doksinet • Horsley v Cascade Insulation Services [2009] EWHC 2945 (QB) Eady J Where C (55) contracted asbestosis leading to 20% respiratory disability, with 5% risk of mesothelioma and 36% risk of lung cancer, either of which would lead to death within 12-18mths of diagnosis, causing a potential loss of earnings during his working life, the appropriate way to address the potential impact on earning capacity before anticipated retirement at age 65 was to reduce multiplier (5.28) by 50% (to reflect risk that malignancy could occur at any point), then to discount for accelerated receipt, leading to net multiplier of 2.39 This appropriately reflected the contingencies or “chance of a loss” rather than a purely arithmetical or percentage-based “loss of a chance” approach. A further reduction of 15% was applied to reflect the risk that C would be unable to work to 65 due to his heavy smoking

habit, with contributory negligence (smoking despite risks) assessed at 20% • Fleet v Fleet [2009] EWHC 3166 (QB) Mackay J Fatal mesothelioma claim. Where deceased was 56 at death, so Table A inapplicable, multiplier should be reduced by 10% for chance of injury or illness, but no significant risk of unemployment, as he had a long employment history as a ceiling fixer with same employer, and was highly motivated • Hiom v Morrison Supermarkets [2010] EWHC 1183 (QB) Jack J Blamire award of £25,000 made for disadvantage in getting work due to serious leg fracture, where C had previously drifted in and out of casual work as labourer or in fast food outlet, as there was no mathematical basis on which to assess future loss of earnings and C was not “disabled” under DDA 16 Source: http://www.doksinet Care and Case Management • Often the single largest element of the claim, so careful preparation to meet it is essential, as is the choice of experts • Virtually all of

the recent serious injury cases have rejected D’s argument that there should be a residential carer, rather than a team of directly employed carers under case management supervision • Note that the role of the clinical case manager, if called at trial, is not that of an expert (though she will frequently have considerable expertise), but as a witness of fact, who owes her duties to the patient alone, and who is there to give evidence about what she did and why she did it. She should not therefore be a joint appointment (Wright v Sullivan [2006] EWCA Civ 565) Multiplier for Life Expectancy • Common law presumption is that a life is average unless D proves to the contrary – Rowley v London & NW Railway [1873] LR 8 EX 221 at 228 • Statistical evidence as to life expectancy (eg in spinal injury cases) is admissible, but not determinative • Ensure that you understand the basis upon which experts have assessed life expectancy – if they have expressed clinical judgment

as to age to which C is likely to live, Table 28 should be used; if they have simply calculated reduction from average life expectancy due to injuries, Table 1 should be used. This distinction is, however, a fine one! • Royal Victoria Infirmary v B [2002] EWCA Civ 348 Where the judge has determined C’s expectation of life, the appropriate multiplier is taken from Table 38 (now 28), and there is no room for any further discount, since the contingency can work in either direction (ie C may exceed his expectation of life or fall short of it) • Sarwar v Ali [2007] EWHC 274 Lloyd-Jones J Issue of life expectancy is essentially a question of clinical judgment, not statistical evidence. Dramatic improvement in life expectancy generally 17 Source: http://www.doksinet over last 15 years, but more so for those with spinal cord injuries. Positive socio-economic factors (supportive family, high-quality care, private medical care, good quality of life etc) likely to have favourable

impact on life expectancy. Where experts have taken account not only of spinal injury, but a range of other individual health factors, use of Table 1 would lead to double-discounting, so Table 28 should be used, even where not every risk of death has been considered. • Burton v Kingsbury [2007] EWHC 2091 Flaux J If experts have assessed C’s life expectancy by a clinical judgment of the positive and negative factors in his case compared to the average man, mortality had already been taken into account, and use of Table 1 would involve a double discount. Observations in para 20 of Ogden Notes that Table 1 at 0% should be used to allow for spread of deaths criticised. • Crofts v Murton [2008] EWHC (QB) HHJ Collender QC Where Court has not decided C’s overall life expectancy, but only by how much his pre-accident statistical life expectancy had been shortened, the multiplier should be based on Ogden Table 1, not Table 28, using the age figure where the multiplier at 0%

corresponded with the reduced life expectancy (Burton v Kingsbury was not cited) Expert Evidence as to Care • Huntley v Simmons [2010] EWCA Civ 54 Where C (22) severely brain-injured in RTA, leaving him with behavioural problems including tendency to violence, judge was entitled to reject joint statement of neuropsychologists that C’s condition would not improve, in favour of oral evidence of D’s neuropsychiatrist that there was a prospect of improvement following a 3-year intensive regime. Further, where C’s care expert concluded that 24-hr care was required and D’s expert considered only limited care was required, the judge was entitled not to accept either view and to make his own assessment of what cared would be needed. 18 Source: http://www.doksinet “The evidence of experts is important evidence but it is nevertheless only evidence which the judge must assess with all other evidence. Ultimately, issues of fact and assessment are for the judge. Of course if there

is no evidence to contradict the evidence of experts it will need very good reason for the judge not to accept it and he must not take on the role of expert so as to, in effect, give evidence himself” per Waller LJ at para 9 Multiplicand: Professional Care • If C has managed without a commercial care regime to date, especially if he has done so despite interim payments, is he likely to require commercial care in future? • However, a tried and tested regime is likely to have identified potential difficulties (eg in recruiting good carers at the rates of pay proposed by D’s expert) • Ensure you have good evidence to challenge C’s care rates (ie evidence that suitably qualified carers can be recruited and retained in the locality at the rates proposed) • Professional care will include on-costs for insurance, NI, holidays, training, advertising and recruitment etc, but check reasonableness of such items • If C has been accommodated in a private nursing home, deduct

the “domestic element” he would have spent on his own living expenses – Lim Poh Choo v Camden AHA [1980] AC 174 • If C has chosen to be cared for by carers employed in his own home, he is entitled to recover the cost, provided his choice is reasonable, not whether his best interest require such a regime – Rialis v Mitchell; Sowden v Lodge Local Authority Provision • Local authority has duty under s21 National Assistance Act 1948 to provide residential accommodation for those in need, and under s47 of National Health Service and Community Care Act 1990 to make assessment of needs for purpose of making arrangements for provision of care 19 Source: http://www.doksinet • Sowden v Lodge [2004] EWCA Civ 1370 The approach is to compare what C can reasonably require with what LA are likely to provide in discharge of their duty under s21, having regard to uncertainties which almost inevitably are present. If LA provision falls significantly short of what C can reasonably

require (ie C’s reasonable choice), D must pay, subject to possibility of ‘top-up’, but feasibility of augmented care must be proved by evidence. But if statutory provision meets C’s reasonable requirements, D does not have to pay for a different regime. • Crofton v NHSLA [2007] EWCA Civ 71 Any personal injury damages administered by the Court of Protection cannot be taken into account by LA in assessing threshold question of whether C was in need of community care services. Whilst capital value of PI award administered by Court of Protection must be disregarded in assessment of C’s means, LA had discretion to take into account investment income, so availability of LA provision will be a matter of evidence in each case. If court decides C will receive LA funding for at least some period, but there is uncertainty as to the future, the multiplier should be discounted. • But this is now largely irrelevant as a result of Peters v E Midlands HA • Peters v E Midlands SHA

& Nottingham CC [2009] EWCA Civ 145 In same way that a claimant who has a right of action against more than one party may choose against whom to pursue his claim, C is entitled as of right to seek damages from D to meet her care and accommodation needs, in preference to dependence upon the statutory obligations of the LA, provided there is no risk of double recovery. Double recovery issue can be met in cases where C’s affairs are administered by the Court of Protection by restricting the scope of the Deputy’s authority under the order so as to prevent any application for LA funding without further order 20 Source: http://www.doksinet and without notifying D. Since C would not be receiving state-funded care, no question of discounting the multiplier (as in Crofton) arose. “We can see no reason in policy or principle which requires us to hold that a claimant who wishes to opt for self-funding and damages in preference to reliance on the statutory obligations of a public

authority should not be entitled to do so as a matter of right” per Dyson LJ at para 53 • Since there will almost always be uncertainties re future LA provision, including possibility of legislative change enabling PI awards to be taken into account in assessing C’s resources, C is likely to elect to pursue damages from D to cover care and accommodation costs, rather than rely on LA provision. Whilst issue of mitigation of loss was not expressly decided in Peters, CA considered there was much to be said for view that it is reasonable for C to prefer self-funding and damages rather than state provision, on simple ground that he believes wrongdoer should pay rather than taxpayer. • Sklair v Haycock [2009] EWHC 3328 (QB) Edwards-Stuart J Where C, who had pre-existing Asperger’s Syndrome and OCD requiring gratuitous care (15-20hrs/wk) from his family, suffered severe spinal injury and chronic adjustment disorder/anxiety in RTA resulting in need for 24-hr professional care

regime, C was not required to give credit for value of gratuitous care he would have required in any event, nor for any care which might have been provided free by the LA. However, there was a difference in principle between services in kind and provision of cash, so any care for which C or his family (on his behalf) would have paid had to be taken into account Multiplicand: Gratuitous Care • Awards for gratuitous care are held on trust for the carer (Hunt v Severs [1994] 2 AC 350), so no award should be made for gratuitous care unless it is likely to be paid to the carer - H v S [2002] EWCA Civ 792 • Where the tortfeasor provides such care, there can be no recovery – Hunt v Severs 21 Source: http://www.doksinet • Gratuitous care must go “distinctly beyond the ordinary regime of family life” to be recoverable, but awards are not limited to “very serious cases” Giambrone v Sunworld Holidays [2004] EWCA Civ 158 • Distinguish between gratuitous care (for which

rates in Facts & Figures may provide starting point) and tasks suitable for home helps, for which a net rate of c£5 per hr may be appropriate • Starting point for valuing gratuitous care may be composite rates in Facts & Figures, but no more than basic rate should be allowed, unless care has been particularly onerous – Massey v Tameside & Glossop NHS [2007] EWHC 317 (QB) Teare J • Since Evans v Pontypridd Roofing [2001] EWCA Civ 1657 deductions for gratuitous care in excess of 25% are unheard of, but 25% has generally become standard – Fleet v Fleet [2009] EWHC 3166 • Where the gratuitous care required is particularly demanding, the court may consider it unnecessary to discount – Newman v Folkes [2001] EWCA Civ 591 Recent Cases on Care • Fleet v Fleet [2009] EWHC 3166 (QB) Mackay J Mesothelioma case where wife had given up work to care for her dying husband “The 25% deduction is well-established in case law and practice and can in my judgement be

called conventional, only to be displaced, perhaps, in a case where the care gratuitously provided by the loved one consists of advanced and skilled levels of care which is in fact worth more than the notional commercial cost” – per Mackay J at para 23 • Tagg v Countess of Chester Hosp [2007] EWHC 509 (QB) McCombe J Claim allowed for physical care provided by relatives whilst C was in hospital, but not for companionship/emotional support element 22 Source: http://www.doksinet • Palmer v Kitley [2008] EWHC 2819 (QB) HHJ Seymour QC Claim for husband’s assistance with housework and shopping rejected as Court not satisfied he provided or would provide assistance “in excess of what, in a modern marriage, would reasonably be expected.” • Kirk v Vic Hallam Holdings [2008] EWHC 2969 (QB) S Phillips QC Aggregate rate of £8.68/hr allowed in mesothelioma case in respect of care and assistance with washing, ironing, cleaning, cooking, driving to/from medical appointments

and looking after garden, over 3 month period prior to deceased’s admission to hospital • Iqbal v Whipps Cross Univ Hosp [2006] EWHC 3111 Sir Rodger Bell Where parents had indicated a willingness to be involved in care of seriously disabled child, it was wrong to reduce the need for professional care by the number of hrs of normal, voluntary parental care if not disabled, regardless of whether the parents will in fact look after him. The cost should only be reduced (to gratuitous rates) to the extent that the parents will willingly become part of the care package, but they cannot be constrained to do so, and it must not be assumed that even the most devoted parents will be willing to render the same amount of care to a disabled child once they are provided with funds to employ the necessary care. Evidence did not indicate an intention for parents to spend more time caring for C than they would have done if uninjured, so no discount. Rates actually paid to professional carers

(£10/£12 per hr) were allowed, rather than Ds’ proposed rates (£9.50/£1050), on basis of evidence that parents were unable to recruit reliable carers at lower rates, but Ct rejected argument that C’s care package should be accepted, provided it fell within reasonable range, as that would amount to reversing the burden of proof. Annual pay calculated by reference to a 58 wk year, to allow for holidays, sickness, training etc, but no allowance for supervision by team leader. 23 Source: http://www.doksinet No discount was made for possibility of local authority care in future, as impossible to predict, and private care had been effectively organised by parents and case manager, so difficult to incorporate LA carers • A v B Hospital NHS Trust [2006] EWHC 1178 Lloyd-Jones J Evidence from nursing expert and manual handling expert of extreme difficulties in transferring C made it unsafe for transfers to be attempted by single carer, so current need for 2 carers for transfers

was made out, and it was unreasonable to expect parents to be on call to assist. Gratuitous care valued without discount, whilst professional care based on 58 wk year, including 3hrs pw supervision by qualified nurse as consultant to care team • Noble v Owens [2008] EWHC 359 Field J Although partner’s care had been onerous and included night care, it was valued at National Joint Council Spinal Point 8 (rather than aggregate rate) less 25% for gratuitous care, as carer did not require any special training and was living with C in any event. However, since partner was exhausted, future care would be allowed at professional carer rates, to include a buddy, night carer etc, costed at 59 wks per yr to take account of holidays, sickness etc • Smith v E & N Herts Hosp [2008] EWHC 2234 (QB) Penry-Davey J The fair and reasonable valuation of gratuitous care given by parents of brain-damaged 7 yr-old with mild hemiplegia, mild cerebral palsy, SLD, autism, disturned sleep and noise

intolerance was the aggregate commercial rate less 25%, as very high levels of care had been required at anti-social hrs. C’s proposal for future care as an adult to be provided at home was reasonable, despite Ds’ contention that better care would be provided in residential autistic provision, with care package to include waking night care, carer rates currently paid (rather than lower rates proposed by Ds), costed at 59 wks per yr 24 Source: http://www.doksinet • Crofts v Murton [2008] EWHC (QB) HHJ Collender QC Past gratuitous care should be discounted by 25% from gross rates of £7£8 per hr between 2004 and 2008, in respect of exceptional care, supervision and assistance given by the family to severely-injured police officer (52) with brain injury, loss of arm and pelvic injuries. However, it was essential for the level of future care to rise substantially, since otherwise there was a strong likelihood, notwithstanding her evidence to the contrary, that C’s wife would

leave him, resulting in a need for 24-hr care. D could not avoid paying for commercial care in reliance upon the fact that C’s wife had in the past demonstrated by her devotion her ability to care for C (Iqbal v Whipps Cross). Future professional care was allowed at £12/hr on a gradually increasing basis, with 45 hrs per week after 4 years, and an additional 5 hrs/wk for 24 wks per year for weekend relief and outings etc. After 18 years, care was assessed at 14hrs/day In addition, future gratuitous care was allowed at 9hrs/wk, with provision for a 25% chance of the requirement for 24hr care after 4yrs (ie in the event that C’s wife left him). • Davies v Bradshaw [2008] EWHC 740 (QB) Wilkie J Despite evidence that C, who had suffered a spinal injury resulting in incomplete tetraplegia such that she required assistance with dressing, bathing, housework and shopping, had derived assistance by employing a resident personal assistant, the evidence showed that she did not require

night care, so the employment of a resident carer was over-provision, although helpful to C. However, due to future deterioration in her condition, C would require a resident carer from age 70, and night-time and double-up care from age 75. An argument that C did not require any assistance from a case manager, since she had the necessary expertise as the owner of a residential care business, was rejected • XXX v A Strategic Health Authority [2008] EWHC 2727 (QB) Jack J It was accepted that the “100% principle” involved 2 questions: (a) Was the choice of care regime reasonable? 25 Source: http://www.doksinet (b) Was the cost of such care reasonable? C (17 at trial) suffered cerebral palsy due to Ds’ negligence at birth, resulting in severely limited physical abilities and reduced intellectual ability, although able to attend mainstream school. Entirely dependent on others, he had been cared for to date by his parents, his father having given up well-paid work to do so.

They had spared nothing to give him the best life possible, but intended to introduce a paid care regime over the next 2 years to enable them to return to work. It was accepted that private carers would be directly employed, and Ds did not call any evidence as to local authority provision, so no question of deduction arose. C was entitled to high quality carers, at a cost (in Guildford) of £12/£14 per hr, as C’s evidence of what was actually paid in the area was preferred to Ds’ estimate. It was not reasonable to dilute care package by employing primary carer at higher rate and secondary carer at lower rate. Although 2 carers were not required much of the time, C required 2 carers to move him, so appropriate and reasonable to allow cost of 2 carers, except for 8hrs at night. Care costed on 60wk year, rather than 58-59, to include paid training time and increased entitlement to holiday pay from 1.409 Team leader allowed at higher rate, but admin of rotas etc could mostly be

done during working hrs, so only extra 2hrs per mth allowed. Cost of training, advertising and provision of pension to carers also allowed, but not additional pay to cover handover discussions (could be done in 5mins) or cost of insurance against negligence or unfair dismissal claims. • Manning v King’s College Hosp NHS Trust [2008] EWHC 3008 (QB) Stadlen J Discount on gratuitous care (principally assistance with housework) provided to woman dying of tongue cancer owing to negligent delay in diagnosis was 20% of aggregate carer rate, having regard to the distress attendant in caring for her when in acute pain and facing prospect of early death, together with an element of unsocial hours. Claim for loss of services as housewife and mother valued at 75% of aggregate carer rate. 26 Source: http://www.doksinet • Huntley v Simmons [2010] EWCA Civ 54 Where C (22) was severely brain-damaged in RTA, but judge concluded there was some prospect of improvement in his behavioural

problems after 3 year intensive support programme, he was justified in not accepting evidence of C’s care expert (that 24-hr care was required), nor D’s expert (that only limited care was required), and making his own assessment, adopting the criterion of what was necessary to enable C to function as well as possible having regard to his disabilities as they are likely to be. Assessment that minimum of 6 hrs’ care per day would be required, with 50% uplift for higher levels of care which might be needed for substantial but unpredictable periods, discounted to 56 hrs/wk to reflect risk that (i) C might be sent to prison/committed under Mental Health Act and (ii) C might dispense with all or some of his carers, although necessarily somewhat broad brush, was not open to criticism and upheld by CA • Drake v Foster Wheeler Ltd [2010] EWHC 2004 (QB) HHJ Thornton QC Claim for 23 days’ palliative care provided gratuitously in charitable hospice allowed in mesothelioma case, even

though no contractual obligation to pay, since a lingering and painful dying period had occurred as a result of illness or injury caused by the actionable acts or omissions of D, C’s family felt under moral obligation to make voluntary donation to hospice, and claim was analogous to claim for gratuitous care provided by a volunteer. Claim assessed as £10,021, being 62% of hospice costs (ie the proportion which was not funded by donations from the PCT), and ordered to be paid direct to the hospice 27 Source: http://www.doksinet Accommodation • Is need for accommodation supported by medical evidence? • Is need for any adaptations/extensions supported as reasonable by the medical evidence? • Remember that the test is whether C’s choice of accommodation is reasonable, not whether cheaper accommodation was available – Rialis v Mitchell (1984) CA, unreported • Will C’s needs be met by local authority? – ensure evidence is available • If C seeks substantial

interim payment to fund purchase of accommodation (eg utilising damages for PSLA, future loss of earnings etc), must beware of fettering trial judge’s discretion re periodical payments • Ensure Roberts v Johnstone calculation takes account of any increase in value of the property due to the adaptations • If C receives housing benefit as a result of injuries, ensure credit is given – Clenshaw v Tanner [2002] EWCA Civ 1848 • Burton v Kingsbury [2007] EWHC 2091 (QB) Flaux J Where house chosen by C falls within the range of prices considered reasonable, C is entitled to exercise a reasonable element of selectiveness in the house bought, so that no deduction should be made for the value of a swimming pool or larger garden, even if not medically necessary (which they were in this case). The fact that the house was chosen because of the incidental benefit of the pool did not make choice unreasonable. (Note that evidence of D’s expert was rejected, as he had not viewed

alternative properties he suggested were suitable) • Smith v E & N Herts Hosp [2008] EWHC 2234 (QB) Penry-Davey J It was reasonable to purchase a property for £725,000, although experts suggested suitable properties could have been obtained for £550,000£600,000, as no other suitable property had been identified. But additional heating costs were reduced, as rooms were larger than required 28 Source: http://www.doksinet • Iqbal v Whipps Cross Univ Hosp [2006] EWHC 3111 Sir Rodger Bell Where bungalow had been purchased for severely injured child, and parents gave up their rented accommodation to live in it rent-free, no allowance should be made for their notional rent, as the Roberts v Johnstone claim was C’s, not that of his parents, and it could not be said that he had unreasonably failed to mitigate his loss by not demanding rent from them. “More generally, it is not just to deprive parents of the incidental benefit of living rent free, when there are so many

sacrifices on their part, most obviously the detriment to their quality of life, which must go uncompensated under our law of tort, however high the award in their child’s favour.” • Could this mean that in all Roberts v Johnstone calculations, one should only deduct the value of the present home if it belongs to C? The decision in Roberts v Johnstone itself would clearly suggest not, but it might depend on whether the new accommodation is purchased in the sole name of C, even though part of the purchase price derives from the proceeds of sale of a home owned by his parents etc. Note that Iqbal only went to the CA on the issue of “lost years” claims for young children • Noble v Owens [2008] EWHC 359 Field J Where C had previously been living in his partner’s rented accommodation, a Roberts v Johnstone claim was allowed, based on the notional cost of a suitable bungalow, but uplifted by 7% to take account of difficulties in finding such a property. Ct refused

to give credit against the award for C’s deemed contribution to partner’s accommodation, as he would only have contributed to household expenses, not rent, and further refused (with reluctance) to give credit for fact that partner would live rentfree in bungalow, since claim was by C, not his partner, and there was no legal basis for giving credit for a benefit enjoyed by another (Iqbal applied). In addition, there was no evidence that partner intended to rent out her own property for profit, and it was inappropriate to make a deemed charge for rent, since there was a real chance they would not stay together, and 29 Source: http://www.doksinet since she would continue to provide assistance in a range of small matters in return for living rent-free A one-off award of £10,000 was made for adaptations to homes of family and friends, so C could retain the benefit of an important aspect of his social life • Crofts v Murton [2008] EWHC (QB) HHJ Collender QC Cost of conversion of

garage to provide a ‘den’ for seriously injured police officer was allowed, as well as the cost of a conservatory, but not a Roberts v Johnstone claim for the ‘remote’ possibility of bungalow accommodation in the future Relationship between interim payments and possible periodical payment awards at trial • Tameside & Glossop NHS Trust v Thompstone [2008] EWCA Civ 5 In deciding whether to make a PPO, the judge’s overall aim must be to make whatever order best meets C’s ‘needs’, not in narrow sense of foreseeable necessities demonstrated to prove heads of damage, but in wider and more general sense of ‘needs’ to enable him to organise his life in a practical way (eg to buy and adapt accommodation, to cover future contingencies, or to buy some facility for which no damages have been awarded). Decision as to what form the order should take will be a balancing exercise of various factors likely to affect C’s future life. • Mealing v Chelsea &

Westminster NHS Trust [2007] EWHC 3254 (QB) Swift J The level of an interim payment should not have effect of unduly fettering trial judge’s freedom to allocate as large a proportion of the award to a PPO as he considers appropriate. Any interim payment that results in a significant proportion of future costs being spent in advance of trial would have the indirect effect of reducing the amount of the award available to be paid by PPOs. Given concerns that claim might be inflated, and that 30 Source: http://www.doksinet assets might be dissipated before trial, the interim award was substantially reduced • Braithwaite v Homerton Univ Hosp [2008] EWHC 353 (QB) Stanley Burnton J The need for C to obtain suitable accommodation in order to access professional care was an important factor justifying an interim payment of £850,000 to fund the purchase of accommodation. The court may, in appropriate circumstances, consider that there will be a capital payment at trial which will

represent some part of future losses which could but need not be compensated by periodical payments. PPOs may then be reduced or postponed having regard to the capital amount which the Ct orders. On an interim payment application, Ct should not make a decision which is liable to close the door on decisions re PPOs which may be made by trial judge, but it could confidently be predicted that trial judge would make an order for a capital payment significantly in excess of £850,000. • Cobham v Eeles [2009] EWCA Civ 204 Where C’s claims for PSLA, past specials and accommodation costs were estimated at only £590,000, and he had already received interims of £450,000, a further interim of £1.2m to fund the purchase of a large property could not be justified. Power to order interim payment was not an unfettered discretion, but must be no more than a reasonable proportion of the final capital sum. Correct approach was: (a) Assess likely amount of final judgment, leaving out of account

heads of future loss which trial judge might wish to deal with by PPO. (b) Strictly speaking, assessment should comprise generals, past specials and interest, but as practice of awarding accommodation costs as lump sum is sufficiently well-established, it will usually be appropriate to include them in projected capital amount. (c) Assessment should be carried out on a conservative basis, and interim payment should be a reasonable proportion of that amount. It may 31 Source: http://www.doksinet well be a high proportion, provided assessment has been conservative. (d) At that stage, judge need have no regard to what C intends to do with money. (e) Additional elements of future loss can be included in assessment when judge can confidently predict that trial judge would wish to award larger capital sum than generals, past specials and accommodation costs alone (Braithwaite approved). (f) Before taking that course, judge must be satisfied by evidence to a high standard of

confidence that there is a real need for the interim payment requested (eg real need for accommodation now) and that amount requested is reasonable, so as to justify predicting that trial judge would take that course. 32 Source: http://www.doksinet Therapies • In brain and spinal injuries in particular, the medical evidence will almost invariably support the need for various therapies, including physiotherapy, occupational therapy, speech and language therapy etc • Whilst it is often assumed that any therapies must be supported by medical evidence, there is in fact no such strict legal requirement, although it may be more difficult for C to justify the claim without such evidence • Where a substantial cost is to be incurred, it is unlikely to be recovered without good evidence of therapeutic benefit, as opposed merely to pleasurable amenity • If swimming/hydrotherapy pool is sought, is it justified as a therapeutic benefit? Can C access suitable public facilities

locally? • Note that the cost of therapies for other family members will not be recoverable, since they are not parties to the action – Smith v E & N Herts Hosp [2008] EWHC 2234 (QB) • Likewise, a claim for a private healthcare plan for C’s wife, to enable her to obtain prompt medical attention and continue to care for C, was disallowed, as not reasonably incurred as a consequence of the injuries to C – Crofts v Murton [2008] EWHC (QB) • Ensure that any future treatment costs are appropriately discounted for accelerated receipt • Jones v Royal Devon NHS Trust [2008] EWHC 558 (QB) King J Where C suffered pathological grief reaction following death of baby due to Ds’ negligence, she was entitled to recover costs of non-conventional therapy, including baby loss groups, meditation workshops, bereavement courses and counselling, even though they were not recommended by any medical expert and not shown to confer any medical benefits. Applying the touchstone of

reasonableness, and principles of remoteness and proportionality, including whether the alternative treatments were akin to medical expenses in that C had shown that she obtained positive benefit from them in the relief of her condition, whether for physical or 33 Source: http://www.doksinet psychological reasons, C’s evidence that she obtained benefit was accepted (although the sums claimed were reduced) • Noble v Owens [2008] EWHC 359 (QB) Field J Cost of weekly hydrotherapy and acupuncture allowed in a case involving serious pelvic, leg, arm and spinal fractures, resulting in C being largely wheelchair-dependent, despite the agreed orthopaedic evidence that there was no good scientific evidence to justify such therapies, upon the basis that the Ct accepted C’s evidence that they made him feel better • Wakeling v McDonough [2007] EWHC 1201 HHJ Mackie QC Where therapeutic benefits of hydrotherapy were agreed as both a need and a legitimate pleasure in a case involving

brain injury and severe physical disabilities, but there was a dispute as to whether C should have his own pool or use public facilities, the Ct allowed the cost of installation of a pool (£132,817, less £15,000 deduction for added value), and £4,000pa running costs, on the basis that C’s choice was reasonable and not extravagant, and there was good evidence from the physiotherapist and case manager as to the lack of suitable local facilities • Burton v Kingsbury [2007] EWHC 2091 Flaux J Spinal injury experts and physiotherapists supported need for physiotherapy in warm water, aimed at reducing physical symptoms of pain and spasticity, and there was evidence of a lack of suitable public facilities, so claim for swimming pool was justified, and running costs allowed. D’s argument that the pool was larger than required rejected Since C’s choice of a property with the incidental benefit of a swimming pool was reasonable, the purchase costs of the house would have been

justified, even if the need for a pool had not been made out 34 Source: http://www.doksinet • Sarwar v Ali [2007] EWHC 1255 Lloyd-Jones J Claim for a £100,000 extension to house a pool was rejected as not reasonably required, given medical evidence that the physiological gains from hydrotherapy at home would be very limited in a high tetraplegia case • Iqbal v Whipps Cross [2006] EWHC 3111 Sir Rodger Bell Claim to cover existing outdoor spa pool with a heated conservatory rejected, as agreed medical evidence that it would be for sociable and pleasurable rather than therapeutic use • Smith v E & N Herts Hosp [2008] EWHC 2234 Penry-Davey J Hydrotherapy pool for brain-damaged child with mild hemiplegia, severe learning difficulties, autism and noise intolerance was not reasonably required, despite mother’s evidence that C loved swimming but could not tolerate noise of public pool. Swimming was recommended in joint physiotherapy report to improve awareness and

communication, but they favoured integration into local leisure centre, where C continued to go swimming whilst at school Costs of speech therapy and OT (for life) and music therapy (to 19) were allowed 35 Source: http://www.doksinet Travel and Transport • If C has no proof of expenses actually incurred, seek discount • Medico-legal visits and appointments with solicitor/counsel are costs, not damages • If person incurring expense already has a car, standing charges will be incurred anyway, so mileage rate should reflect running costs alone, as set out in Facts & Figures (c20p per mile, rather than c40p) • Distinguish between visits to aid recovery and mere social contact – Havenhand v Jeffrey (1997) CA, unreported • If C is claiming purchase costs of new vehicle as result of injuries, seek credit for re-sale value, and/or for value of existing car • Is a new car required, as opposed merely to a different type (eg automatic), so that claim restricted to

initial additional cost • Would car have been purchased in any event? • AA/RAC subscription rarely due to injuries, as most drivers have it • Sarwar v Ali [2007] EWHC 1255 Lloyd-Jones J Cost of wheelchair and driving control adaptations to vehicle should be claimed separately, rather than included in basic vehicle price, as they have no residual value, unlike the car itself. 4-yr replacement accepted as reasonable, but not costs of AA breakdown cover, hands-free kit and CD changer, as would have been incurred anyway • Smith v E & N Herts Hosp [2008] EWHC 2234 (QB) Penry-Davey J Additional costs of purchase of 7-seater vehicle and equipment allowed 36 Source: http://www.doksinet Holidays • Has C demonstrated any increased holiday costs by factual evidence, rather than experts reports • Seek details of the type of holidays taken pre-accident, and any evidence of increase in costs since injury (eg due to need to be accompanied by carers, need for greater

legroom on flights, need for ground floor accommodation, special dietary requirements, increased use of taxis etc) • C can only claim the increased costs • Sarwar v Ali [2007] EWHC 1255 Lloyd-Jones J £10,000 pa was recovered as increased holiday costs, given need for 3 carers to accompany C, with C and 1 carer travelling business class. Evidence that C had taken 2 holidays in Pakistan since accident, costing c£10,000, was very important • Noble v Owens [2008] EWHC 359 Field J Despite fact that C and his partner had previously enjoyed Caribbean cruises, but could no longer tolerate movement of vessel due to injuries and could no longer fly, Ct refused to allow additional costs of sailing to a Caribbean island for an annual holiday. Principle that C should be put in same position as pre-accident did not mean he should be able to take holidays of same type and in same location, but rather he should be able to travel once per yr to a warm, scenic location. Cost of annual

travel by rail to southern Europe allowed, together with 3 weekend breaks each year 37 Source: http://www.doksinet Aids and Equipment • Are the items claimed reasonable and proportionate? • Are the items claimed supported by medical evidence? • Note entitlement to free prescriptions from age 60 • Reasonable cost of private provision may be claimed, even though they may be provided free of charge under the NHS – s2(4) Law Reform (Personal Injuries) Act 1948 • Disallow standard household items (eg dishwasher, washing machine, computer, mobile phone etc) that would have been purchased anyway, and discount where some equipment likely to be provided free of charge by NHS – Parkhouse v Northern Devon NHS Trust [2002] Lloyd’s Rep Med 100 • Disallow items not wanted by C or unlikely to be used - many claimants have no interest in an Apres shower dryer, even though almost invariably recommended! • Are periodic replacements likely to be required. If so, use

periodic multipliers (Table A5), rather than equivalent annual cost • Seek credit for items that might have been required in any event • Avoid penny-pinching – you are likely to damage your case if you are seen to be taking unreasonable points! • Burton v Kingsbury [2007] EWHC 2091 Flaux J Wheelchair technology, voice-activated computer software, remote controls for blinds and lights etc and CCTV system were recovered: “If such technology is available to give the Claimant a level of independence so that he does not have to summon a carer or his wife to switch on a light or a piece of equipment, or to draw a curtain or blind, it seems to me that he should be entitled to it and to recover the cost from the Defendant.” • Noble v Owens [2008] EWHC 359 Field J Costs of walk-in bath, portable hoist (from age 65), eye-level cooker, wheelchair, adapted vehicle, disabled scooter, motorised front door and 38 Source: http://www.doksinet windows, and remote-controlled

lights etc were allowed, but not costs of burglar alarm and fire extinguishers (not required as a result of injuries), adjustable height washbasin, sand buggy (C would only have made very occasional trips to the beach, so not reasonably required) or computer (C unlikely to use it) • Smith v E & N Herts Hosp [2008] EWHC 2234 Penry-Davey J Cost of acoustic piano (£4,400) allowed, as reasonable to incur the expense in consequence of C’s disability (SLD and autism etc) in a field where C responded positively (evidence showed she had perfect pitch) against a background of generally limited response • Crofts v Murton [2008] EWHC HHJ Collender QC Cost of servo-electric prosthetic arm was recoverable, even though it had proved useless, as the expense had been reasonably incurred and C had received no medical advice against it 39 Source: http://www.doksinet DIY and Gardening etc • Has C provided evidence as to pre-accident levels of DIY and gardening • Note that claims

for DIY and gardening may be higher where C has moved to larger accommodation as a result of his injuries • Ensure multiplier takes into account mortality risk and likelihood of need for assistance due to increasing age in any event • Crofts v Murton [2008] EWHC HHJ Collender QC Loss of ability to perform DIY assessed at £1500pa to age 70 and at £1095pa thereafter, given the demands of C’s busy police job. • Smith v E & N Herts Hosp [2008] EWHC 2234 Penry-Davey J Multiplicand for gardening and DIY of £2290 for 7 yr-old girl from age 1965 was used, based on likely cost of employing help. Also, a claim was allowed for the cost of additional gardening equipment due to the move to a larger property • Beesley v New Century Group Ltd [2008] EWHC 3033 (QB) Hamblen J Mesothelioma case, leading to death. £2,000 pa up to age 75 allowed for DIY and gardening provided by 62 yr-old builder and decorator who was adept at DIY and in maintaining his substantial 5-bedroom home

with 3 acre garden, and at reducing level thereafter (reflected in a reduction to the overall multiplier) • Fleet v Fleet [2009] EWHC 3166 (QB) Mackay J Fatal mesothelioma case. £1,500 pa allowed for services dependency, as deceased did all DIY, planned to redecorate the house and undertook work in the considerable garden. “I believe I am justified in saying that I can take into account the general level of awards under this head of damage from past experience. It would be dismal if experts had to be called to say how much it costs to mow a lawn or paint a room; after all, judges do have some experience of that 40 Source: http://www.doksinet kind of activity and what it cost to buy it in the market place” – per Mackay J at para 27 41 Source: http://www.doksinet Miscellaneous • Smith v E & N Herts Hosp [2008] EWHC 2234 Penry-Davey J Cost of pursuing appeals to SENDIST allowed, with the balance of the claim for school fees at Radlett Lodge autistic school

adjourned for 12mths to enable C to pursue it if local authority funding was not available • Watson v Cakebread Robey [2009] EWHC 1695 S Hunjan QC No claim for funeral expenses by a living claimant (disapproving Bateman v Hydro Agri) • Court of Protection costs are recoverable, and are now likely to be higher due to the Mental Capacity Act 2005. A draft Schedule is set out in Facts & Figures at p279 • Noble v Owens [2008] EWHC 359 Field J Although C was presently able to deal with the award, no doubt with advice from the case manager and others, he would become less able to do so with increasing age, so an award of £500pa with a multiplier of 15 was allowed for the future costs of managing the award • But C is not entitled to recover the cost of investment advice on managing the fund, as this amounts to a collateral attack on the Lord Chancellor’s prescribed discount rate under the Damages Act 1996, which essentially prescribed the discount rate by reference to

index-linked gilt-edged stock rather than a mixed portfolio – Page v Plymouth Hospitals NHS Trust [2004] EWHC 1154 (QB) • Will the current economic climate resurrect the argument? David Knifton Exchange Chambers Liverpool & Manchester 1st December 2008 42