ASSESSING DAMAGES IN PERSONAL INJURY CASES: WHEN THE JUDGES GO “BACK TO BASICS” (AND WHY IT MATTERS)

I am giving a webinar on Thursday on “The Fundamentals of Personal Injury Damage”.   The starting point is the “basic” element of personal injury damages – to put the claimant back in the position they would be if they had not been injured.  This may seem a truism, and a very basic, approach, however it is surprising how often judges deliberately and specifically refer back to these basic elements when called upon to decide apparently complex issues in personal injury cases. It is worthwhile looking at a few examples.

ELLISON -v- UNIVERSITY HOSPITALS OF MORECAME BAY NHS FOUNDATION TRUST

This  can be seen in Ellison -v- University Hospitals of Morecambe Bay NHS Foundationly Trust [2015] EWHC 366 (QB).  The principles set out were of critical importance when the judge went on to consider matters relating to accommodation, the choice of accommodation and family care.

PRINCIPLES
  1. The overall aim of compensatory damages for tort is to place the claimant, so far as money can achieve this, in the same position as she would have been in if she had not suffered the wrong for which she is now being compensatedLivingston v Rawyards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn) . As Lord Woolf MR observed in Heil v Rankin [2001] 2 QB 272 [22]-[23], the principle is that ‘full compensation’ should be provided, for both financial and non-financial losses.
  2. The pain, suffering and loss of amenity suffered by an injured person are inherently incapable of being accurately measured in money terms. The task of converting the one into the other to arrive at an award of general damages is necessarily artificial, and involves a value judgment. One important goal is consistency. This supports the objectives of predictability, and fairness as between different claimants and defendants. That is why the court relies on the Guidelines for the Assessment of General Damages in Personal Injury Cases produced by the Judicial College. The assessment will have regard to these guidelines, whilst always being tailored to the specific facts of the individual case.
  3. Another important goal in assessing general damages is to arrive at a figure which is regarded as reasonable by society as a whole. It was to meet that objective that in Heil v Rankin the Court of Appeal prescribed an increase in the then customary levels of general damages for personal injury including, for catastrophic injuries such as tetraplegia, an increase of approximately a third. That increase is reflected in the current Judicial College guidelines. So is a further 10% uplift in general damages for pain, suffering and loss of amenity provided for by the decision in Simmons v Castle [2012] EWCA Civ 1039[2013] 1 WLR 1239 for most personal injury cases tried after 1 April 2013, following changes in the recoverability of costs introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012. It is agreed that this uplift applies in the present case.
  4. When it comes to compensation for future costs, a claimant is entitled to damages sufficient to meet her reasonable needs arising from her injuries. In considering what is reasonable for this purpose the court should have regard to all the relevant circumstances. For these uncontroversial propositions Ms Vaughan Jones QC for the defendant cited Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 (QB), [2012] Med L R 1 [5] (Swift J).
  5. Ms Vaughan Jones also relied on a proposition in the same paragraph of Swift J’s judgment, that the relevant circumstances include “the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item”. I accept, and I did not understand it to be disputed, that proportionality is a relevant factor to this extent: in determining whether a claimant’s reasonable needs require that a given item of expenditure should be incurred, the court must consider whether the same or a substantially similar result could be achieved by other, less expensive, means. That, I strongly suspect, is what Swift J had in mind in the passage relied upon.

MILLER -v- IMPERIAL COLLEGE HEALTHCARE NHS TRUST

Similarly in Miller -v- Imperial College NHS Healthcare NHS Trust [2014] EWHC 3772 Judge Curran QC (sitting as a High Court Judge) considered some of the basic principles relating to personal injury damages.

GENERAL DAMAGES

Principles to be followed in assessment
    1. Counsel for the Claimant, Mr Hough, relies upon the well-known dictum of Lord Blackburn in Livingstone v Reynolds Coal Company [1890] 5 AC 25 as the relevant principle for the court to apply in assessing the quantum of damages in this case:
“Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation or damages you should as nearly as possible get that sum of money which will put the party that has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation….”
    1. Counsel for the Claimant submits that in respect of awards of damages the provision of past and future care, and for equipment, aids and appliances, the court must apply the test of ‘reasonableness’: the Claimant is entitled to damages to meet her reasonable requirements or reasonable needs arising from her injuries. There may be a range of reasonable options to meet the Claimant’s needs, and the most reasonable option may not be the least expensive one available. It is common ground that the defendant Trust could not be required to pay for an option chosen by the Claimant if that choice was unreasonable and another less expensive solution was reasonable.
    2. A very helpful restatement of the proper approach to be taken is to be found at paragraph 94 in the judgment of Lloyd Jones J, as he then was, in A v Powys Health Board [2007] EWHC 2996:
“The basis of assessment is the test of reasonableness as stated in Rialis v Mitchell, (Court of Appeal, 6th July 1984) and Sowden v Lodge [2005] 1 WLR 2129. The Claimant is entitled to damages to meet her reasonable requirements and reasonable needs arising from her injuries. In deciding what is reasonable it is necessary to consider first whether the provision chosen and claimed is reasonable and not whether, objectively, it is reasonable or whether other provision would be reasonable. Accordingly, if the treatment claimed by the Claimant is reasonable it is no answer for the defendant to point to cheaper treatment which is also reasonable. Rialis and Sowdenwere concerned with the appropriate care regime. However, the principles stated in those cases apply equally to the assessment of damages in respect of aids and equipment. In determining what is required to meet the Claimant’s reasonable needs it is necessary to make findings as to the nature and extent of the Claimant’s needs and then to consider whether what is proposed by the Claimant is reasonable having regard to those needs. (Massey v Tameside and Glossop Acute Services NHS Trust [2007] EWHC 317 (QB), perTeare J. at para. 59; Taylor v Chesworth and MIB [2007] EWHC 1001 (QB)per Ramsay J. at para 84.)”

THE PRACTICAL IMPACT

This consideration of basic principles had an important effect on the result. The judge rejecting an argument that damages should be reduced because of the claimant’s age and applied the principles to make a major award in relation to future prosthetics – both items which were vigorously challenged by the defendant.

TOTHAM -v- KING’S COLLEGE HOSPITAL NHS FOUNDATION TRUST

Similarly in Totham -v- King’s College Hospital NHS Foundation Trust [2015] EWHC 97 (QB) Mrs Justice Elisabeth Laing DBE had to consider some basic principles.
“The correct approach
    1. The parties agree what my general approach should be (see paragraph 26 of the Trust’s skeleton argument). There are two fundamental points. The first is that the purpose of an award of damages in these circumstances is, so far as is possible, to put Eva in the position she would have been in had the Trust not negligently injured her. Eva is “entitled to be compensated as nearly as possible in full for all pecuniary losses…..Subject to the obvious qualification that perfection in the assessment of future compensation is unattainable, the 100% principle is well established and based on high authority”: see per Lord Steyn in Wells v Wells [1999] AC 345 at 382-3. The application of this principle to past losses is relatively straightforward. Past losses are ascertainable with some accuracy. Its application in practice to future pecuniary losses is necessarily more difficult.
    2. The second fundamental point is that deciding whether a head of loss is recoverable, and, if so, its amount, involves an assessment of the reasonableness both of the claimed head of loss and of its amount: Sowden v Lodge [2004] EWCA Civ 1370. This principle was explained in two ways by Stephenson LJ in Rialis v Mitchell (1984) The Times 17 July, at pages 24-26 of the transcript. First, the duty to mitigate loss is a duty to take reasonable steps; and second, it is a foreseeable consequence of a defendant’s negligence that a claimant will take reasonable steps to mitigate the loss caused by that negligence. The touchstone of reasonableness means that there will often be a range of potentially reasonable options for a claimant to choose from when mitigating her loss. Provided her choice is within that range, the defendant cannot reduce his liability by arguing that Eva should have chosen a cheaper option from that range. “The defendant is answerable for what is reasonable human conduct and if their [sc Eva’s parents’] choice is reasonable he is no less answerable for it if he is able to point to cheaper treatment which is also reasonable”.
    3. So a claimant has, and those acting on her behalf have, a duty to take reasonable steps to mitigate her loss. Any loss which is caused by a failure to take such steps is not recoverable. Provided a claimant acts reasonably to mitigate her loss, she can recover for any loss which she incurs in doing so, even if the resulting damage is greater than it would have been had she taken no such steps. She can recover for reasonable steps taken to avoid loss. Where a claimant successfully mitigates her loss, a defendant is entitled to the benefit of such steps (McGregor on Damages, 19th edition, paragraphs 9-002-9-006).
    4. A third point, which I have already mentioned, is that there is an obvious distinction between quantifying losses and expenses which Eva has already incurred and future losses. Subject to any points about mitigation, if I am satisfied on the balance of probabilities that a loss has been incurred, and if it was reasonably incurred, then subject to quantification, it is recoverable. The assessment of future losses, on the other hand, involves an assessment of the chances of future events, and that assessment of those chances, whether they are more or less than even, must be reflected in the amount of damages.

ROBSHAW -v- UNITED LINCOLN HOSPITALS NHS TRUST

Robshaw -v-United Lincoln Hospitals NHS Trust [2015] EWHC 923 (QB).

THE CASE

Mr Justice Foskett was assessing a case where a boy was serious injured due to clinical negligence at birth. He was then aged 12. Very little was agreed (the trial lasted 11 days and there were 91 files of documents).

The approach in law to the valuation of aspects of the claim
161.Before turning to the disputed areas of the claim, I should refer briefly to the extensive written submissions that each side has advanced concerning what is said to be the “correct” approach to determining whether any particular feature of the claim is sustainable. The submissions would seem to mirror contentions advanced in other cases over the last few years.
162. The starting-point is not in issue: a claimant is entitled to damages to meet his or her “reasonable requirements” or “reasonable needs” arising from his negligently caused disability (see, e.g., Sowden v Lodge [2004] EWCA Civ 1370) and should receive full compensation. The issue that may arise, it is said, is when there is a range of “reasonable” options to meet those needs. In that situation is the court permitted or obliged to choose the cheapest option or that which the claimant advances? Reference has been made to Heil v Rankin [2001] 2 QB 272, Rialis v Mitchell, 6 July 1984,Massey v Tameside & Glossop Acute Services NHS Trust [2007] EWHC 317 (QB), Taylor v (1) Chesworth (2) MIB [2007] EWHC 1001 (QB) andA (by her Litigation Friend H) v Powys Health Board [2007] EWHC 2996 (QB), on the one hand, and Iqbal v Whipps Cross NHS Trust [2006] EWHC 3111 and Whiten (see above), on the other. Totham (see paragraph 189 below) was also referred to.
In Whiten Swift J said that the approach she adopted was as follows [5]:
“The claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is “reasonable”, I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item.”
    1. My attention was drawn after the conclusion of the hearing to a decision of Warby J in Ellison v University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB) where it appears that the Defendant sought to widen the scope of what Swift J had said. In rejecting that argument Warby J said this:
“18. Ms Vaughan Jones also relied on a proposition in the same paragraph of Swift J’s judgment, that the relevant circumstances include “the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item”. I accept, and I did not understand it to be disputed, that proportionality is a relevant factor to this extent: in determining whether a claimant’s reasonable needs require that a given item of expenditure should be incurred, the court must consider whether the same or a substantially similar result could be achieved by other, less expensive, means. That, I strongly suspect, is what Swift J had in mind in the passage relied upon.
19. The defendant’s submissions went beyond this, however. They included the more general proposition that a claimant should not recover compensation for the cost of a particular item which would achieve a result that other methods could not, if the cost of that item was disproportionately large by comparison with the benefit achieved. I do not regard Whiten as support for any such general principle, and Ms Vaughan Jones did not suggest that Swift J had applied any such principle to the facts of that case. She did suggest that her submission found some support in paragraph [27] of Heil v Rankin, where Lord Woolf MR observed that the level of compensation “must also not result in injustice to the defendant, and it must not be out of accord with what society would perceive as being reasonable.”
20. Those observations do not in my judgment embody a proportionality principle of the kind for which the defendant contends, and were in any event made with reference to levels of general damages for non-pecuniary loss. Ms Vaughan Jones cited no other authority in support of the proportionality principle relied on. I agree with the submission of Mr Machell QC for the claimant, that the application to the quantification of damages for future costs of a general requirement of proportionality of the kind advocated by Ms Vaughan Jones would be at odds with the basic rules as to compensation for tort identified above.”
  1. I am disinclined to express any concluded view of my own on any issue of principle that may be said to arise in this general context largely because it is difficult to find any head of claim in the present case that could be affected by the resolution of any such issue of principle. I would, however, tentatively express my agreement with Warby J’s analysis of Swift J’s formulation of the correct test.
  2. To my mind, in assessing how to provide full compensation for a claimant’s reasonable needs, the guiding principle is to consider how the identified needs can reasonably be met by damages – that flows from giving true meaning and effect to the expression “reasonable needs”. That process involves, in some instances, the need to look at the overall proportionality of the cost involved, particularly where the evidence indicates a range of potential costs. But it all comes down eventually to the court’s evaluation of what is reasonable in all the circumstances: it is usually possible to resolve most issues in this context by concluding that solution A is reasonable and, in the particular circumstances, solution B is not. Where this is not possible, an evaluative judgment is called for based upon an overall appreciation of all the issues in the case including (but only as one factor) the extent to which the court is of the view that the compensation sought at the top end of any bracket of reasonable cost will, in the event, be spent fully on the relevant head of claim. If, for example, the claimant seeks £5,000 for a particular head of claim, which is accepted to be a reasonable level of compensation, but it is established that £3,000 could achieve the same beneficial result, I do not see that the court is bound to choose one end of the range or the other: neither is wrong, but neither is forced upon the court as the “right” answer unless there is some binding principle that dictates the choice. It would be open to the court to choose one or other (for good reason) or to choose some intermediate point on the basis that the claimant would be unlikely to spend the whole of the £5,000 for the purpose for which it would be awarded and would adopt a cheaper option or for some other reason.
  3. I apprehend that parties have been settling cases and the courts have been deciding cases on this broad approach for many years without doing violence to the full compensation principle. Inevitably, broad-brush judgments are called for from time to time and, as I have been invited by both parties to do on occasions in this case (where so many individual items remain in dispute), the court must simply “take a view”. I will be adopting that broad approach, where appropriate, when considering certain disputed heads of claim in this case.

 

MANNA -V- CENTRAL MANCHESTER HOSPITALS NHS FOUNDATION TRUST

Another example can be seen in the judgment of Mrs Justice Cox in Manna -v- Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC 2279 (QB).

THE CASE

The claimant, then aged 18, suffered brain damage at birth.  The court had previously approved a compromise on liability of 50% of damages.  The judge was called upon to determine several issues relating to the extent of the injuries and damages.

KEY POINTS

  • The basic purpose of damages is to put the claimant in the position they would have been in had the injury not occurred.
  • A claimant is entitled to damages to meet their reasonable needs arising from the injuries.]
  • The issue of mitigation of loss is covered by a range of “reasonableness”. If a claimant undertakes treatment/incurs expense within a range of reasonableness then this does not amount to a failure to mitigate.
  • The fact that there is a finding/agreement in relation to liability is irrelevant for the purpose of assessing damages (except insofar as it explains past decisions in relation to care/expenditure).

STATEMENT OF THE BASIC LAW OF DAMAGES

The Relevant Legal Principles
    1. The principles that govern the assessment of damages are well established and are not in dispute. The purpose of an award of damages in personal injury claims is, so far as is possible, to put the Claimant in the position he would have been in had he not been injured. In Heil v Rankin et al[2001] 2 QB 272Lord Woolf MR giving the judgment of the Court of Appeal, said as follows at paragraphs 22, 23 and 27:
“… the aim of an award of damages for personal injuries is to provide compensation. The principle is that ‘full compensation’ should be provided… this principle of ‘full compensation’ applies to pecuniary and non-pecuniary damages alike… the compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the Defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.”
  1. This Claimant is therefore entitled to damages to meet his reasonable needs arising from his injuries. Reasonableness always depends on the particular circumstances and it applies both to the head of loss claimed and to its amount. Disputes as to future losses will often require the court to make an assessment of the chances of various future events.
  2. In relation to expenses already incurred the Claimant and those who act on his behalf have a duty to take reasonable steps to mitigate his loss. In relation to a particular choice of treatment, for example, or transport, as arises in this case, the key is reasonableness. If the choice is unreasonable it will result in injustice to the Defendant and will not be recoverable. Provided the Claimant’s choice is within the range of potentially reasonable options open to him, he will have reasonably mitigated his loss. A Defendant cannot reduce his liability by arguing that the Claimant should have chosen a cheaper option from within that range.
  3. In determining quantum the liability compromise agreed between the parties and approved by the court is irrelevant for the purpose of calculating the appropriate award of damages under each head of claim. This is agreed save, as will become apparent, in so far as it is said to explain the conduct of the Claimant in respect of sums already received for Lamarieo’s care, and offered during the trial in respect of accommodation.”