Legal Watch:Personal Injury5th March 2015Issue: 054

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar | 28.04.15 | The Wellcome Collection, London

There is a limited number of seats still available for this event, so to avoid disappointment book your place now.

In this issue:

• Civil procedure/interim payments

• Damages

• Civil procedure/withdrawal of admission of liability

• Watch this space

Civil procedure/interim paymentsIn last week’s Legal Watch we commented on how relatively rare case reports had become in relation to interim payment applications. It appears that like buses they then come along in pairs as we now have another: Gould v Peterborough & Stamford Hospitals NHS Foundation Trust [Lawtel 27/02/2015].

Theclaimant,whowaseightyearsold,sufferedfromcerebralpalsy that had been caused by the defendant’s negligence. The defendant had admitted liability. There was uncertainty as to how the claimant’s cognitive ability would develop and so it was agreed that the trial on quantum would be stayed until she was 11. The interim payments paid to date totalled £1.115m. The defendant opposed the application for a further interimpayment,arguingthatafurtherawardwasnotjustifiedas the claimant had already received almost all that would be awarded at trial.

The claimant submitted that a further interim payment was necessary as it would be wrong to leave her with a care regime in place and aspects of her lifestyle set up, but without the funds available to fund that lifestyle until the trial.

‘The judge’s first task was to assess the likely amount of the final judgment, considering that the assessment should be carried out on a conservative basis.’

02

The deputy High Court judge held that under CPR 25.7(4) the court could not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. The judge’s first task was to assess thelikely amount of the final judgment, considering that theassessment should be carried out on a conservative basis. Applying Eeles v Cobham (2009) the interim payment would be a reasonable proportion of that assessment, and might well be a high proportion, provided that the assessment had been conservative. The objective was not to keep the claimant out of his money but to avoid any risk of over-payment. The court also had to be careful not to establish a status quo in the claimant’s way of life which might have the effectofinhibitingthetrialjudge’sfreedomofdecision.Thecourt could consider future loss in its assessment. The court should not carry out a mini trial. It had to be conservative but realistic.

With regard to general damages, it was likely that the claimant would receive £250,000 at trial. As to past losses, large sums had been spent to purchase and adapt a property and £535,000wasanappropriatefigure.Foranticipatedregularexpenditure to trial, it was likely that the claimant would be awarded £247,000. With regard to capital expenditure, the costs of a wheelchair, an adapted vehicle and a caravan would also likely be awarded at trial. The claimant was growingandhadanumberofdifferentneedsandabilities.Theappropriatefigurewastherefore£100,000.Withregardto future accommodation costs, looking at the context and circumstances of the claimant’s disability, the court should not reduce the figures for rent which the parents wouldhavehadtopayinanyevent.Futureaccommodationcostswould likely be assessed at £450,000.

That gave a total figure thatwas likely to be awarded attrial of £1.582m. It was reduced by 90 per cent to £1.423m. Since £1.115 million had already been paid to the claimant, the defendant was to pay her an additional interim payment of £308,800.

03

DamagesAtkinson v Pathak and another [Lawtel 2/03/2015] is on its own facts but nevertheless sees a judge dealing with a type of claim that will be familiar to many readers.

The claimant had been working as a self-employed gardener wheninDecember2009thefirstdefendanthadnegligentlyrun over his left foot when mounting the pavement in the course of performing a U-turn. The claimant had required various surgical interventions after the accident. He returned to work as a gardener in August 2010 but by early 2011 foundittoodifficulttocontinuetowork.Theclaimant’scasewasthat,asaresultoftheinjuriessufferedintheaccident,hehadbeenrenderedpermanentlyunfittoundertakebasicactivities involved in the gardening business. In particular, he alleged that the pain in his foot meant that he was unable to use either a telescopic ladder or a step-ladder. He argued that, but for the accident, he would have continued in his employment generating a net annual income of £38,000 forat leastanotherfiveyears.Astogeneraldamages,healleged that his injuries fell within the “severe” category and sought an award of around £40,000.

The defendants admitted liability for the claimant’s losses up to August 2010, namely when he had returned to work, but arguedthatafterthatdatetheeffectoftheinjuriesresultingfrom the accident had ended. They relied on surveillance footage of the claimant which showed him using a telescopic ladder and step-ladder after the accident. They also relied on a GP record and an old version of the claimant’s CV which both indicated that the claimant suffered fromarthritis in his hands which had previously caused him to have to give up his gardening business. The parties also relied on reports from medico-legal experts. The claimant’s expert opined that all of the claimant’s current pain had been caused by the trauma of the accident, whereas the defendants’ expert considered that the claimant sufferedfrom constitutional abnormalities in his foot which were the cause of his continuing pain.

The deputy High Court judge held that the surveillance footage demonstrated that the claimant had been able to use a ladder in a conventional manner despite telling the expertssomethingdifferent.Further,itwasclearfromtheGPrecordandhisownCVthathehadhadasignificantproblemwith his hands before the index accident. In the context of assessingtheextenttowhichtheaccidenthadaffectedhisearning capacity, in particular his ability to undertake year-on-year work, having regard to the surveillance evidence, GP record and CV, his reliability as a witness of fact was clearly in doubt. In light of that material, it was not possible toaccepthisevidenceregardingthepainsufferedandtheeffectithadhadonhisphysicalcapacity.

‘...the claimant’s expert appeared to have taken the claimant’s explanation of the pain and disability he had suffered at face value and without adequate scrutiny.’Constitutional abnormalities had had an impact on the claimant’s physical capacity. Although it was understandable that he would have initially thought that all of his foot problems had flowed from the accident trauma, in factconstitutional abnormalities had arisen so that not all of his problems were attributable to the accident. The evidence of the defendants’ medico-legal expert was preferable to that of the claimant’s expert. His analysis from the outset had always been broadly accurate and scrupulously fair, whereas the claimant’s expert appeared to have taken the claimant’s explanation of the pain and disability he had sufferedatfacevalue,andwithoutadequatescrutiny.

04

The defendants’ methodology and approach to loss of earnings was preferable to that of the claimant. It was impossible to accept the claimant’s assertion that he had been completely free from any injury before the accident which would have impinged on his ability to carry out his gardening business. There was no basis for the assumption advanced by him that his business would have continued week-on-weekforatleastanotherfiveyears.Hisperiodofinitial recovery until August 2010 was reasonable and upon his return to work he had substantially recovered from the effects of the injury. Although it was fair to acknowledgethat he had some continuing pain, it was not of such a frequency, degree or intensity to be sufficiently disabling.However, it was noteworthy that the initial injury was serious andhadhadsignificantphysicalandpsychologicaleffects.In those circumstances, the appropriate cut-off point forloss of earnings was 12 months and the appropriate award was £15,000.

In all the circumstances, given the limited duration of the symptomsandthelimitedeffectontheclaimant’sphysicalcapacity, the appropriate award in general damages was £12,500.

05

Civil procedure/withdrawal of admission of liabilityJackson/Mitchell/DentonAlthough it is not a personal injury case, Home Group Ltd v Matrejek (2015) EWHC 4441 (QB) illustrates a softening of the court’s attitude in a case in which the three stage test from Denton was applied following the dismissal of the claimant’s possession claim.

The claimant had failed to attend a directions hearing but the judge later allowed relief from sanctions and reinstated the claim. The defendant appealed.

Dismissing the appeal, the High Court judge held that a judge should address an application for relief from sanctions in three stages. First, identifying and assessing theseriousnessandsignificanceof the failure tocomplywithany rule, practice direction or court order which engaged CPR 3.9(1). Second, considering why the default occurred. And third, evaluating all the circumstances of the case, so as to enable the court to deal justly with the application, including the need for litigation to be dealt with justly and at proportionate cost and the need to enforce compliance with rules, practice directions and orders.

‘Although the balance was a fine one, the judge had been entitled…to conclude that the just outcome of the application was to grant relief.’

In this case, the judge had carried out that three-stage approach. He had found that the claimant’s failure to attend the directions hearing had been a non-trivial, serious or significant default. He had found that the reason for thedefault had been a misguided attempt to save costs upon an apparent misunderstanding of an earlier court order which was, on one reading, potentially partially valid. In evaluating all the circumstances of the case, he had been entitled to take into account the lack of prejudice to the defendant tenant, the rights of her neighbours and the limited extent to which court time had been lost. Although the balance wasafineone,thejudgehadbeenentitled,intheexerciseof his discretion, to conclude that the just outcome of the application was to grant relief.

CommentThis case illustrates the re-emergence of the concept of doing justice between the parties, even where the default has been serious and the reasons for the default misguided. It is interesting to see that the judges did consider the seemingly important factor of the impact of the default on court resources but found it to be limited.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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Watch this spaceMultipliers in fatal accident casesIn Legal Watch: Personal Injury 30 we reported the firstinstance decision in the fatal accident case of Knauer v Ministry of Justice.

The claimant submitted that financial dependency up tothe date of trial should be treated as special damages, with a small discount for the uncertainties of life but none for accelerated receipt, and that the multiplier for future loss should be calculated from the date of judgment, not death. The High Court judge indicated that he would have followed that route had he been able to do so. However, he was bound by Cookson v Knowles (1979) and Graham v Dodds (1983) to adopt the conventional approach.

We understand that the Supreme Court has granted permission for the claimant to appeal the decision. The hearing is likely to take place late this year and if the claimant is successful we will see the implementation of the approach to fatal accident calculations that has been advocated for many years by the Ogden working party.

Court feesThe much publicised, substantial increase in court fees is duetocomeintoeffectnextweek.