Judgment of McKinnon J on the 1st December 1995
CASE REPORT
The Plaintiff was born on the 25th October 1947 and so was 42 at the date of the accident on the 10th May 1990. He was 48 at the date of judgment.
The Plaintiff suffered appalling injuries in the accident, rendering him blind and almost deaf, causing damage to his voice and jaw so that he cannot speak properly or shout at all, reducing the senses of smell and taste considerably, totally displacing the entire facial skeleton, fracturing the second cervical vertebra, fracturing some ribs and puncturing the left lung (with associated haemothorax). In addition to all those fairly obvious injuries, there probably was damage to the frontal lobe of the brain, possibly to the temporal lobe as well, and possibly also to the deep structures of the brain. Although the obvious effects and disabilities are not very unusual when considered separately, it is in fact extremely rare to encounter them all together in the same person. The Plaintiff has been virtually deprived of his teleceptor senses (appreciation of the world at a distance), and he now suffers vestibular and auditory hallucinations which lead to extreme anxiety and panic. He is depressed to a moderate degree. As a result of all these residual disabilities, the Plaintiff will never work again, and he needs full-time companion care because he cannot be left alone.
We submitted that the Plaintiff's handicaps should be considered as a whole, so that the impact on him and his family could be judged. We argued that the appropriate range could be defined by looking at paraplegia and tetraplegia, and assessing how the Plaintiff's handicaps compare.
We asked for the award to take account of the loss of congenial employment.
"Mr Bill Braithwaite Q.C. contended for the figure of £120,000 for general damages. He relied particularly upon the multiple nature of the Plaintiff's injuries and the fact that all his senses were affected by the accident. He referred me to a decision of Michael Davies, J. At D2-014 of Kemp and Kemp on 25th November 1982. It was a case of total irreversible blindness like this case, loss of smell, impairment of taste together with multiple injuries. General damages were £67,500 which being up-dated amounts to some £120,000. As I have said I do not accept that there is any reasonable prospect of any appreciable improvement in the Plaintiff's condition. Dr John Evans, Hon. Consultant Neurologist to Hope Hospital (Manchester), one of the Defendants' medical experts, who gave evidence before me that he expected some improvement after the resolution of the plaintiff's claim had not mentioned any such thing in his written reports which are before me."
The Plaintiff's case is that he would have been promoted had he not been injured. This was disputed, with the additional argument that, even if the Plaintiff had been promoted, his salary would not have increased. The claim assumed wage increases (not just in line with inflation) at 5%, whereas the Defendants asserted that there would have been no increase from the accident to the date of trial. There was an implied suggestion that the Plaintiff might not have kept his job.
The judge found that the Plaintiff would have been promoted within 5 or 6 years of the accident , and that the wage increases were reasonable.
It was agreed that Mrs Bell had looked after her husband since the accident, but there was an issue about the value of her care. Had Mr Bell not been injured, Mrs Bell would have gone back to work, and would have been promoted to Supervisor, and her net loss of earnings was agreed at £44,703. However, the defence argument appeared to be that her care should be valued at only £15,000 from accident to trial, based on the report of Mrs Patricia Jeyes, a director of the British Nursing Association: this represented an average of less than 2 hours a day (about 13 hours a week) at the rates suggested by Miss Judith Buckle, another of the defence experts (whom the Defendants decided at a late stage not to call).
There was still a good deal of uncertainty in relation to this question of care, both to the date of trial and in the future. Mrs Bell had said for a long time that she would like to go back to work, and all the experts agreed that this would be the ideal solution: family carers suffer high levels of stress, and are often encouraged by neutral experts to pursue a system of care which allows them substantial input but also permits them to follow their careers and so gain respite. However, Mrs Bell eventually became resigned to continuing as her husband's carer, although she would still have liked to get back to work.
The judge held that the wife's loss of earnings was not reasonably sufficient to recompense her in respect of the constant care given by her: "I accept Mr Braithwaite's submission that the Plaintiff's wife effectively sacrificed her life during those years in caring for the Plaintiff.".
The first issue was about multipliers, as it often is nowadays. The claim was presented on the basis of multipliers calculated from the Ogden Tables, and the Defendants denied that those tables are admissible (see below).
The other issue on multipliers was in relation to the appropriate discount rate, which again is a very current topic. The Law Commission (Report No 224) recommended that the discount rate should be selected with reference to the net real rate of return on Index-linked Government Securities, which is currently about 3%. Nevertheless, the claim used the rate of 3.5% (see below).
The judge used multipliers of 10 for loss of earnings and 14 for life.
The question of future care involved first the fundamental issue whether the Plaintiff needs the 24 hour care which he currently receives. Mrs Jeyes' solution was that Mrs Bell should continue to carry the burden of care until her retirement age (say 60), but that she should be allowed assistance for 8 hours a week for 48 weeks of the year. From 60 onwards, she suggested a commercial carer for 8 hours a day, with Mrs Bell providing the extra 2 hours a day which Mrs Jeyes said were necessary.
All the Plaintiff's lead medical experts (Dr Malcolm MacCulloch, psychiatrist, Dr Michael Tobin, Director of the Research Centre for the Education of the Visually Handicapped at the University of Birmingham, and Professor Philip Feldman, neuro-psychologist), and his care expert (Winifred Smalley) agreed that the present level of care at 24 hours a day is essential. The Defendants' neurologist/psychiatrist, Dr John Evans, seemed to agree with that view in his reports, but he said in court that he expected improvement (see the passage from the judgment cited in paragraph 5 above).
The claim valued Mrs Bell's care at the cost of a resident housekeeper, with respite care in addition, giving a total annual figure of £18,834.
"I am entirely satisfied that Mrs. Jeyes's proposals are entirely inadequate to provide that Plaintiff with the care which he properly needs. I accept the evidence of Mrs Smalley that the Plaintiff requires constant supervision. I accept her evidence that respite care is essential. I have no doubt that Mrs. Smalley's proposals are both fair and reasonable and properly provide for the care which the Plaintiff so plainly needs (my emphasis). There was a dispute as to the appropriate rate in respect of respite care. I accept Mrs. Smalley's evidence that the appropriate rate is one £3.70 per hour."
The claim for aids and equipment amounted to £107,000, based on the report of Margaret Nightingale of Jacqueline Webb & Co. I was disappointed that the judge found that "The Plaintiff has undertaken no computer training and, in truth, had little knowledge of computers. There had been shown no medical need for computer equipment and the like.....there is a distinct air of unreality about the Plaintiff's claim for aids and equipment." I felt that this claim was well supported by a true expert in the enormous handicap of blindness, and it was not challenged by any defence evidence. However, I can see how if the equipment is not actually in place and being used, it may not appear to be necessary, even though it is.
The claim for holidays, home maintenance, gardening, redecoration, additional heating and insurance was £78,000.
The accommodation issue turned on the size of the extension which is appropriate for Mr and Mrs Bell's bungalow: 9 square metres or 38 - £17,000 or £78,000. We suggested a compromise by which one of the existing bedrooms should be used for the carer eventually, when the children had grown up.
"Mr. Spencely's scheme was expensive and represented work to be carried out by a quality builder with full supervision thus reasonably removing any unnecessary worry by the Plaintiff and his wife. Mr. Robert Minton, a Chartered Surveyor, produced a sketch extremely late in the day at trial showing a very modest extension which, I have to say, I regard as entirely inadequate for the Plaintiff's needs. It was quite clear to me that the Plaintiff would need a study of a reasonable size such as that proposed by Mr. Spencely. It was also reasonable, in my judgment, for the Plaintiff to have a bathroom next to his study. I seemed to me that the bathroom as proposed by Mr. Spencely was reasonable and properly catered for the Plaintiff's needs. It seems to me that all the other items set out in Mr. Spencely's report are reasonable. It seems to me that the rate of £800 per square metre is justified. It is expensive but the Plaintiff is entitled to have a proper extension of quality and in keeping with his existing bungalow. I do not accept the evidence of Mr. Minton....".
Future loss of earnings depended on the promotion question.
I have set out above the main issues in relation to damages under each head, with relevant comments by the judge. The bare figures are below (small items are omitted).
| Pain, suffering and loss of amenity interest Past Loss Wife's loss of earnings and care Loss of earnings Salary paid Loss on share savings scheme Travel (at 30p per mile) and miscellaneous interest (having first deducted C.R.U.) Future Loss Care (multiplier 14) Loss of earnings (multiplier 10) Pension Accommodation Aids and equipment Holidays, and all additional costs of running the house |
£120,000 £10,860 £63,080 £88,499 £7,878 £435 £12,881 £29,223 £263,676 £231,666 £15,068 £41,135 £8,500 £29,750 £956,303 (less C.R.U. of £70,990) |
I have long had a theory that, if plaintiffs are forced to fight, they often achieve a better result than they would have settled for. A couple of years ago, I represented a man who had injured both legs very badly, and who now suffered mentally as a result. His legal team agreed that we would advise him to accept £500,000, but he was only offered £200,000: the judge awarded him £710,000! Mr Bell's team agreed that £850,000 would be acceptable, but the payment into court was £760,000: because the defence wouldn't move significantly, there was no alternative to fighting, with a result that was 26% better than the payment into court, and 13% more than we would have accepted.
The multipliers used to calculate future loss were taken from the Ogden Tables, and were based on a discount rate of 3.5%. The Defendants' Counter-Schedule, served only a few weeks before the trial, made it clear to us (perhaps we should have realised this earlier) that the Defendants denied that the Ogden Tables were admissible. We therefore obtained and served a report from John Prevett of Bacon & Woodrow (he wrote the Ogden Tables, and guided me in the first article I wrote on multipliers), proving the Tables, and adding that the discount rate should be 3% (as has been decided in three cases recently). The judge refused to allow us to use that evidence (even though the Defendants had obtained their own expert report in reply), but said that he would look at the Tables as a check on his traditionally chosen multipliers.
I had thought that, in the current climate, with the Civil Evidence Bill about to receive the Royal Assent, and so render the Ogden Tables admissible, all practitioners would agree that they could be looked at, even though there might still be an argument about whether the judge should base his decision on them. This case just shows how wrong you can be!
One must always remember, with any legal argument, that it must be subservient to the interests of the client. Rather than get involved in an appeal or adjournment, we gauged the significance of the 3.5% discount rate compared to the traditional 4.5% (remembering that the Plaintiff was 48), and decided to go ahead: a decision which paid handsome dividends, because the judge found for us on all major points bar one.
Lawyers should always remember that litigation is enormously stressful for plaintiffs, however much their legal team do to reduce the upset. My instructing solicitor, who is vastly experienced and caring, had arranged for a witness support counsellor to be available at all times to look after the Plaintiff and his wife, but nevertheless, on the second day of the trial, the Plaintiff had an attack in court (probably a panic attack as it later turned out), which his wife and some of the onlookers thought might be fatal. He was taken to hospital, and was in fact soon better, but I thought it was clear that it was the stress of the case which had brought the attack on.
It was put to the Plaintiff that, because he had no O levels, and because he had made two spelling mistakes in an application for promotion within his company, he had not been suitable for promotion. Further, the suggestion was made that a conviction for assault, several years earlier and quite unconnected with his employment, rendered him unsuitable for promotion. Defendants should remember that it is possible to conduct a defence with humanity and dignity without in any way detracting from its effectiveness: in fact there is a clear argument that a sympathetic and realistic approach is likely to be far more effective.
BILL BRAITHWAITE Q.C.,leading Tim Holroyde, instructed by John Hawks of Beaty & Co, Wigton, Cumbria.
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