Cook v (1) Cook (2) Walker 28.06.11

Where the long term outcome for the Claimant was uncertain, the assessment of damages should be completed on a staged basis, postponing a final resolution of the Claimant’s adult’s needs to a future point in time when they could be meaningfully assessed.  

Background

The Claimant, aged 10, sustained serious injuries as a result of her premature birth following a road traffic accident. Liability was admitted and it was accepted that she was likely to suffer some degree of long term difficulty and would need some level of care and support in her adult life.

The Claimant applied for an order that a quantum assessment scheduled for December 2011 should be confined to determining damages for the period up to her 16th birthday. The Claimant argued that there was significant doubt over her long term progress. It was too early to finalise her prognosis and predict the extent of her dependency, rendering the Court unable to make a meaningful conclusion about future losses. She submitted that her care needs should be postponed for review at age 16.

The issue to determine was whether the Court’s resolution of the quantum issues should be postponed until a time when solid evidence becomes available to allow an accurate assessment of the Claimant’s actual needs.

Held

The Court referred to four general principles in making its decision:

  • It was the normal rule, and desirable practice, that all outstanding issues between the parties should, where possible, be resolved at a single hearing.
  • The principle of the public interest in the finality of litigation remained crucial.
  • A judge should not be tempted to invent rules to make up for perceived deficiencies in statutory provision.
  • Although the court had the power to postpone some issues for later resolution, that was to be regarded as a rare or exceptional course requiring some tangible reason to justify it.

The Court acknowledged the disadvantages of postponing the resolution of quantum. However, it held that there could be circumstances which justify an exceptional course in which a long term postponement might be necessary in the interests of justice; where, for example, the nature of the damage was clear but quantification could not yet be meaningfully assessed.

Comment

Healthcare providers and insurers are, of course, familiar with provisional damages. This case, however, indicates a potential growth in the paternalistic approach towards the claimant by allowing the staged assessment of damages, at the expense of certainty of litigation. It raises the question whether this approach will be adopted elsewhere, particularly for the higher value cases which often raise issues about long term progress and needs.

The defendant will need to be prepared to offer robust evidence in cases which are particularly complicated and/or raise quantum issues that are uncertain and speculative.