TRIAL REPORT
RTA
Case tried on quantum
Award £4.1 million
Issue of how to provide 24/7 care – resident or shift
Hydrotherapy pool at £235,000
JUDGMENT SCHEDULE OF PAST AND FUTURE LOSS AND EXPENSE
GENERAL MATTERS
Accident date: 28th September 1999
Claimant’s date of birth: 4th January 1950
Age then: 49
Age now: 55 year 272 days
Claim Form: 5th April 2002
Liability Judgment: 15th May 2003
Valuation Judgment: 10th June 2005
Life expectancy: Age 75
Final Hearing: 3rd October 2005
PREAMBLE
This Schedule follows the judgment figures set out in the judgment of HHJ Taylor, dated the 10th June 2005 and, in particular, the Schedule annexed thereto.
The Learned Judge held that the Claimant’s Life Expectancy is to age 75.
The Learned Judge found that, but for the accident, the Claimant is likely to have retired from her work as a Schoolteacher at age 62.5 years.
Multipliers have been calculated utilising the Ogden Tables, 5th Edition, at a discount rate of 2.5% and applying, where appropriate, contingency discounts and discounts for accelerated receipt.
Interest rates have been calculated with the assistance of Personal Injury Toolkit Calculator.
Interest on damages for pain, suffering and loss of amenities has been calculated at 2% per annum from the date of service of the Claim Form to the 3rd October 2005, namely 7%.
Interest on all past losses has been calculated at one half the special investment account rate from the date of accident to the 3rd October 2005, namely 19.23%.
The Trial Schedule calculated all past losses to the 18th April 2005. Therefore, additional losses have been calculated for the period between that date and the 3rd October 2005, namely 168 days; 24 weeks. Those additional losses are identified in bold italics in this Schedule.
PAIN, SUFFERING AND LOSS OF AMENITIES
1. Damages were agreed at £185,000.00
2. The Claimant claims interest upon the above damages at 7%, namely:
£12,950.00
PAST LOSSES
EARNINGS
3. Past loss of earnings was agreed at £130,000.00
For the period between the 18th April 2005 and the 3rd October 2005, the Claimant claims a gross salary of £45,209 from which deductions for pension (6%) and travel (£1,560pa) have been taken, producing a figure of £40,936.46 before tax. Applying the Personal Injury Toolkit Calculator for the year 2005/2006 produces a net salary of £29,455, £566.44 per week.
Therefore, the additional loss claimed is £13,594.56
CARE
4. Past family care amounts to £14,173.00
Additional family care is claimed at the rate of £18.27 per week for the period between the 18th April 2005 and the 3rd October 2005 before applying a Housecroft deduction of 20%. Therefore, the total additional loss is £350.78
5. Past professional care was awarded at £282,674.87. To that sum is to be added £12,693.19, which must be reimbursed to North Yorkshire County Council. The figure of £82,659.19 must be deducted in respect of past PCT funding, producing a loss of £212,708.87
Additional professional care costs are claimed between the 18th April 2005 and the 3rd October 2005 at an average rate of £202.60 for Care Company Costs and £1,531.40 in wages per week (based upon the figures set out at paragraph 9(vii) of the Trial Schedule), producing a weekly sum of £1,734. Therefore, total further losses for this period amount to £41,616.00
CASE MANAGEMENT
6. Past case management of £25,000 was awarded, together with costs of JSP at £2,015. Therefore, total losses under this head amount to
£27,015.00
The Learned Judge valued the services of Graham Allman(the Claimant’s brother in law, acting as de facto payroll manager) at something in the region of £5,000 pa, £96 per week. Therefore, between the 18th April 2005 and the 3rd October 2005 additional losses are claimed in the sum of
£2,304.00
THERAPIES
7. Past therapies were awarded in the sum of £4,719.00
MISCELLANEOUS
8. Past miscellaneous costs were awarded in the sum of £32,113.13
GARDENING/DIY
9. Past gardening and DIY costs were awarded in the sum of
£6,840.00
The Learned Judge valued this head of damage at £3,500 pa, £67.30 per week. Therefore, the additional costs between the 18th April 2005 and the 3rd October 2005 amount to £1,615.20
GENERAL EXPENSES
10. General expenses were awarded in the sum of £2,750.00
TRANSPORT
11. Past transport costs were awarded at £29,406.00
INTEREST
12. Interest is claimed on all past losses at one half the special investment account rate, namely 19.23%. Total past losses amount to £519,205. Therefore, interest is claimed in the sum of £99,843.00
SUMMARY
Earnings: £130,000
Post trial Earnings: £13,595
Family care: £14,173
Post trial Family care: £351
Professional care: £212,708
Post trial Professional care: £41,616
Case management: £27,015
Post trial case management: £2,304
Therapies: £4,719
Miscellaneous: £32,113
Gardening/DIY: £6,840
Post trial Gardening/DIY: £1,615
General expenses: £2,750
Transport: £29,406
Interest: £99,843
TOTAL: £619,049.00
FUTURE LOSSES
EARNINGS
13&16.The Learned Judge held that the Claimant would have retired at age 62.5 years at a gross annual salary of £45,209. Deductions have been made for pension (6%) and travel (£1500), giving a pre-tax income of £43,709. Utilising the Personal Injury Toolkit Calculator for the tax year 2005/2006, the appropriate multiplicand is £29,490 net.
Extrapolating the multiplier from Tables 8 and 10 of the Ogden Tables and applying a contingency deduction of 0.89 produces an appropriate multiplier for a women aged 55 years 272 days of 5.45.
Therefore, total future loss of earnings amounts to £160,720.50
14 Loss of congenial employment was awarded in the sum of
£5,000.00
PENSION
17. The Claimant has incurred a loss of pension. But for her accident, she would have worked to age 62.5. The following facts are relevant:
(i) The Claimant would have received a lump sum payment of £70,356.50 upon retirement (43/80 of a final salary of £45,209 gross per annum x 3).
(ii) In fact, she received £39,887.51.
(iii) The Claimant would have received an annual pension of £24,300 gross, £20,240 net upon retirement;
(iv) In fact, the Claimant receives £13,295.84 gross, £10,715 net.
The Claimant’s loss of lump sum pension is calculated in accordance with the case of Longden v. British Coal as follows:
(i) Normal retirement age – 62.5
(ii) Lump sum at 62.5 - £70,356;
(iii) Lump sum actually received - £39,887;
(iv) Age upon receipt – 50 years 9 months;
(v) Discount factor for acceleration – 0.7482
(vi) Therefore, present value of a lump sum of £70,356 due at age 62.5 is £52,640.36;
(vii) Claimant’s life multiplier from age 50 years 9 months to age 75 – 18.25;
(viii) Multiplier to retirement from age 50 years 9 months – 10.20;
(ix) Longden factor = 18.25 – 10.20 ÷ 18.25 = 0.4411;
(x) Lump sum loss is therefore £52,640.36 – (£39,887 x 0.4411);
(xi) Therefore, lump sum loss is £52,344 - £17,594 = £35,046.00
(xii) A further judicial discount of 5% is permitted to reflect the facts of this case and is taken into account in the Auty calculation below.
The Claimant’s total claim for pension loss is calculated in accordance with the case of Auty v British Coal as follows:
(i) Claimant’s age at trial – 55 years 272 days;
(ii) Normal retirement age – 62.5;
(iii) Net annual pension loss is £20,240 - £10,715 = £9,525;
(iv) Lump sum loss - £35,046;
(v) Claimant’s life expectancy after age 62.5 – 12.5 years;
(vi) Appropriate multiplier for above period – 10.75;
(vii) Annual pension loss after retirement: £9,525 x 10.75 = £102,393.75;
(viii) Total annual and lump sum loss = £137,440;
(ix) Discount for accelerated receipt (6 years 275 days) = 0.8572;
(x) Loss after accelerated receipt deduction = £117,814;
(xi) Less further judicial discount at 5%, giving a total loss of lump sum and annual pension of £111,923.00
LOST YEARS PENSION
However, the Claimant’s life expectancy has been shortened. But for her accident, as at the date of hearing, the Claimant’s life expectancy would be to age 86.4 years. In fact, she will live to only age 75, a reduction of 11.4 years. Therefore, the Claimant claims a loss of pension during these “lost years” in accordance with the principles of the case of Phipps v. Brooks Dry Cleaners ((1996) PIQR Q100). In the “lost years,” pension is claimed as follows:-
(i) Annual net pension loss - £9,525;
(ii) Multiplier for a fixed period of 11.4 years = 9.93;
(iii) Therefore, loss over the “lost years” = £94,583.25;
(iv) 50% of the above represents the “available surplus”, namely £47,291.62;
(v) Discount for accelerated receipt of 19 years 93 days – 0.6217;
(vi) Loss - £29,401;
(vii) Further contingency discount to represent the uncertainties of life – 5%;
(viii) “Lost years” pension is claimed in the sum of £27,931.00
CARE
18. The Learned Judge awarded costs of care to age 70 at £108,302 pa.
The appropriate multiplier to age 70 from age 55 years 272 days is 12.02.
Therefore, costs of care during this period amount to £1,301,790.00
During the final 5 years of the Claimant’s life, the Learned Judge held that care costs would amount to £124,481.
The appropriate multiplier for this period, taking account of accelerated receipt, is 15.33 – 12.35 = 3.31.
Therefore, costs of care during this period amount to £412,032.00
The Learned Judge awarded an annual contingency sum of £1,000 to which the appropriate life multiplier of 15.33 is to be allowed, producing a loss of £15,330.00
In the event that PPOs are ordered, the relevant annual sums will be:
(i) To age 70, to include the contingency sum of £1,000pa, £109,302;
(ii) From age 70, £125,481.
CASE MANAGEMENT
19. The Learned Judge awarded set up costs of £650.
The Learned Judge awarded annual costs of £2,539.20 to which is to be applied the life multiplier of 15.33, producing losses of £38,926.00
WHEELCHAIRS
The Learned Judge awarded capital costs under this head of
£27,837.00
The Learned Judge awarded annual costs of £8,242.10 to which is to be applied the life multiplier of 15.33, producing a loss of £126,351.00
HOLIDAYS
21. The Learned Judge awarded £6,000pa, to which is to be applied the life multiplier of 15.33, producing total losses of £91,980.00
GARDENING/DIY
22. The Learned Judge awarded £3,500pa under this head, to which is to be applied the life multiplier of 15.33 producing total losses of
£53,655.00
TRANSPORT
23. The Learned Judge awarded £4,750pa under this head, to which is to be applied the life multiplier of 15.33, producing total losses of
£72,818.00
PHYSIOTHERAPY
24. The Learned Judge permitted £7,500 pa for the first 2 years of physiotherapy, to which is to be applied the appropriate multiplier of 1.95, producing a loss of £14,625.
Thereafter, the Learned Judge allowed £3,250pa, to which is to applied the appropriate multiplier of 13.38, producing total losses of £43,485.
The Learned Judge allowed £4,500 by way of capital costs of physiotherapy equipment.
The Learned Judge allowed £916.16 pa for annual costs of physiotherapy equipment, to which is to be applied the life multiplier of 15.33, producing a total loss of £14,044.73.
Therefore, total costs of physiotherapy amount to £69,530.00
HOUSING
25. In accordance with the Learned Judge’s findings on housing, the following costs have been awarded:
Roberts element - £1,112.50 x 15.33 = £17,054.63
Adaptations - £257,297.75 less non-qualifying expenditure of £32,020 and betterment of £36,500 = £188,777.75
(The question of VAT on non-qualifying fees is unknown).
Fees and VAT - £46,523.
Legal Fees - £3,433.
Agents commission - £2,027.
Surveyor’s fee - £511.
Fitting out - £4,000.
Annual replacement costs - £325 x 15.33 = £4,982.25.
Carer’s furniture - £3,500.
Alternative accommodation - £10,193.
Additional running costs - £5,618 x 15.33 = £86,123.94
Air conditioning, inclusive of fees and VAT - £7,905.
Electric garage door, inclusive fees and VAT - £3,210.
TOTAL £378,241.00
HYDROTHERAPY POOL
26. The Learned Judge awarded costs of installation of the pool, including VAT, in the sum of £156,275 from which is to be deducted £30,000 by way of betterment, producing a loss of £126,275.
The Learned Judge permitted fees relating to the pool in the sum of £24,616.
The Learned Judge permitted annual running costs at £5,500, to which it to be applied the life multiplier of 15.33, producing a total loss of £84,315.
Therefore, total hydrotherapy costs amount to £235,206.00
ASSISTIVE TECHNOLOGY
27. The Learned Judge permitted the costs of environment control at £17,500.
The Learned Judge permitted renewal costs of the above on a 10 year cycle at £1,750 pa, to which is to be applied the life multiplier of 15.33, producing total losses of £26,828.
The Learned Judge allowed for the costs of a page turner in the sum of £2,000.
The Learned Judge allowed for replacement costs of the above on a 10 year cycle at £200pa, to which is to be applied the life multiplier of 15.33, reducing total losses of £3,066.
The Learned Judge permitted for additional IT costs at £1000.
The Learned Judge permitted for annual costs of the above at £2,000pa, to which is to be applied the life multiplier of 14.33, producing total losses of £30,660.
Therefore, total costs of assistive technology amount to
£81,053.00
OCCUPATIONAL THERAPY
28. The Learned Judge allowed for capital costs of £4,500.
The Learned Judge permitted annual costs and replacements at £5,000, to which is to be applied the life multiplier of 15.33, producing total losses of £76,650.
Therefore, total OT costs amount to £81,150.00
INTERIM PAYMENTS
The Claimant will give credit for interim payments as set out below, together with interest on those payments at the full rate from the date the payment was received.
Credit is given for interim payments as follows:-
(i) £10,000 on the 29th June 2000, together with interest at 33.19%, namely £3,319;
(ii) £549.31 on the 31st October 2000, together with interest at 30.81%, namely £169.24;
(iii) £20,000 on the 30th November 2000, together with interest at 30.23%, namely £6,046;
(iv) £25,000 on the 25th June 2001, together with interest at 26.26%, namely £6,565;
(v) £250,000 on the 2nd June 2003, together with interest at 14.04%, namely £35,100;
(vi) £400,000 on the 14th September 2004, together with interest at 6.31%, namely £25,240;
(vii) £200,000 on the 6th September 2005, together with interest at 0.44%, namely £880;
(viii) Total interim payments amount to £905,549.31 and interest to £77,319.24, producing total credit of £982,868.60
SUMMARY
Pain, suffering and loss of amenities: £185,000
Interest on above: £12,950
Past Earnings: £130,000
Past Family care: £14,173
Past Professional care: £212,708
Past Case management: £25,000
JSP £2,015
Past Therapies: £4,719
Past Miscellaneous: £32,113
Past Gardening/DIY: £6,840
Past General expenses: £2,750
Past Transport: £29,406
Past Additional post-trial: £59,481
Interest: £99,843
Future earnings: £160,721
Congenial employment: £5,000
Pension: £111,923
Lost years pension: £27,931
Care to 70: £1,301,790
Care from 70: £412,032
Care contingency: £15,330
Case management set up: £650
Case management annual: £38,926
OT Capital: £27,837
OT Annual: £126,351
Holidays: £91,980
Gardening/DIY £53,655
Transport: £72,818
Physiotherapy: £58,110
Physiotherapy equipment: £18,545
Housing: £378,241
Hydrotherapy: £235,206
Assistive technology: £81,053
OT: £81,150
TOTAL: £4,116,248.00
Interim payments together with interest amount to £982,868.60.
Therefore, the Claimant’s net award is £3,133,379.00
If, and insofar as, may be appropriate, annual figures provided under individual heads of damage can be applied to Periodical Payment Orders.
WILLIAM WALDRON
Dated 2005