Paul Tate (a protected party by his litigation friend the official solicitor) v Ryder holdings & ANOR (2014)

The court was required to determine the quantum of damages in a claim for personal injuries arising out of a road traffic accident.

The claimant (T) had been hit by a bus when he was aged 11. He suffered a severe brain injury, a fractured pelvis and a contused lung. T had learning difficulties before the accident. After the accident, he was noticeably more aggressive and impulsive, with concentration and memory difficulties. T's physical injuries healed, but he suffered cognitive and behavioural difficulties which meant that he could not live independently as an adult and required 24-hour care. He lacked awareness of danger and was easily led. He was diagnosed with a severe personality disorder. He lived in supported lodgings from age 19, but had problems with drugs and alcohol, and was taken advantage of by others. He was admitted to a transitional rehabilitation unit but began to abscond and commit criminal offences. Liability was apportioned 70-30 in T's favour. He was aged 24 at the date of the instant hearing. The defendants accepted that T's personality disorder had been caused by his brain injury, but asserted that he would have lived a life of irregular employment, compounded by substance abuse, in any event given his learning difficulties, vulnerability and poor resistance to temptation. The issues to be determined were (i) whether T's compensation should be discounted to take account of his poor future prospects before the accident; (ii) the type of future care T would require; (iii) the amount of general damages; (iv) T's loss of earnings; (v) damages for miscellaneous items.

HELD: (1) There was no evidence that any living, adult relative of T's had been in paid employment. His childhood was impoverished and benefit-dependent. The assessments in respect of special educational needs prior to the accident revealed a boy who had significant learning difficulties, delayed language skills, poor concentration, weak memory and who was easily led. Although there was considerable force in those points, the defendants' argument could not be accepted because: (a) it was clear from the expert evidence that by reason of the organic brain injury, T lacked capacity in important respects. He lacked capacity to decide for himself where to live; how to choose what care, support and rehabilitation he needed; and whether to take alcohol and drugs. His condition could only reasonably be treated by a regime of 24-hour personalised care, which would need to be continued indefinitely. The need for such 24-hour care arose directly by reason of the organic brain injury. It would therefore be wrong in principle to discount the amount of damages in the light of an alleged risk as to how his life might have turned out if he had not suffered the injury; (b) it was extraordinarily difficult to evaluate in any acceptable or convincing way how T, aged only 11 at the time of the accident, would have developed, and what the nature and quality of his life might have been. T had faced formidable difficulties, but the defendants' scenario was exceptionally bleak and pessimistic, and invited speculation which could be seriously unfair to T. (2) The annual cost of future care was £175,000, representing an average of the figures for residential accommodation and accommodation in T's own home. However, it was common ground that there would be periods when T was likely to lose his liberty, either by virtue of the Mental Health Act 1983, or when in custody. Accordingly, that figure was reduced to £170,000 per annum to reflect the non-negligible risk of periods in custody. There was also a substantial risk that T would not comply with any care regime. The only equitable solution was to discount the amount of compensation for future care to reflect the significant risk of non-compliance. A discount of 20 per cent was fair and proportionate in the circumstances. (3) T's injuries fell within "moderate brain damage" according to the Judicial College Guidelines. An appropriate award for pain, suffering and loss of amenity was £140,000. (4) The court adopted an average of the annual survey of hours and earnings for median earnings in the Yorkshire and Humber region for refuse occupations, shelf fillers and hospital porters, which gave a net figure of £14,437 per annum. That was discounted by 33 per cent given T's disabilities and vulnerability. A multiplier of 26.49 was taken to reflect retirement at 68. (5) T would always be a protected beneficiary, and would need a professional deputy under the supervision of the Court of Protection. The court allowed £14,000 plus VAT for professional fees per annum, plus various other fees. An award of £50,000 was made for past gratuitous care at a commercial rate, which was discounted by 25 per cent.

Walls v London Eastern Railway Ltd (2014)

The court had to determine the quantum of damages to be awarded to the claimant (W) in a personal injury action brought against the defendant railway company (R). 

W, who was employed by R, had been at a railway station attending a work-related health and safety course on February 5, 2009 when he slipped and fell. R did not dispute liability for failing to grit the path leading to the station but did dispute the extent and nature of the injury. According to W, he was walking down a slope and holding onto the rail but slipped and fell onto his left side. As the day progressed, the pain increased in his left thigh, lower back and hips. After the fall he was absent from work for two weeks. On April 6, W was driven to hospital with great pain in his back and left leg. The information W gave was inconsistent: his witness statement from 2012 stated that he had gone to the GP a couple of days after the accident as the pain had got worse. He had also stated that he visited hospital a few days after the accident rather than two months. At the trial, W acknowledged that that was incorrect. After returning to work, W also claimed that he had been put on nightshift because it was less demanding on his back. However, W's line manager gave evidence that he knew nothing of W's back problems. R's medical expert gave evidence that W was suffering from a long-standing, degenerative condition of the lower spine, which was supported by Magnetic Resonance Images. The evidence of W's medical expert was that the pain was all due to the accident and that the fall caused a tear in the lower back's fibre which caused a disc to leak. The issue for the determination of damages was the nature and extent of W's injury.

HELD: (1) There was no doubt that W was an unreliable source of evidence and the court was not able to believe him. The court found that W suffered progressive new pain after a two-month period following the fall, leading to his hospital admission. The evidence of W's line manager, which did not support W's claim of progressive pain after the accident, was accepted. Between the evidence of the two experts, R's was preferable; he had subjected the material to careful analysis. W's expert had presented his evidence as a series of lectures, but it was no part of an orthopaedic expert's expertise to say who should be believed and why. He had diminished the role of the medical expert in doing so. He had also unreservedly supported W's claim even though W's evidence had been misleading. Further, the way that W had fallen did not support the theory of torn fibre; he did not fall on his back but heavily on his left side. Therefore, the court found that the bruising was mostly over within a fortnight and that the visit to hospital had been prompted by long-standing degenerative changes in W's lower spine. (2) W had sustained no structural damage. It was likely that he had suffered fairly extensive bruising; he was of a hardy disposition and there was no doubt that he coped the best he could with the discomfort and was not necessarily free from pain when he went back to work a fortnight after the fall. It was appropriate to award £1250 in damages.