Companion Website

Peter Barrie: Personal Injury Law 2/e: Liability, Compensation, and Procedure

Updates to Part C: QUANTUM

Updates to Part C: QUANTUM

View updates in a printable word document

Compensation payments
Chapter 21.A

Effect of contributory negligence on calculation of award

Sowden v Crookdale [2004] EWCA Civ 1370

Contributory negligence is to be ignored in the assessment of damages. Where the likely impact of contributory negligence means that the claimant may not be able to afford to incur an expense that would have been reasonable on full liability, the defendant cannot rely on this. The terms of the Act mean that damages should be assessed on the basis of full liability and the reduction then should be applied to the full liability award. This is consistent with the rule that the court is not concerned with the way that the claimant's damages will be spent after the award has been made.

Aggravated damages
Chapter 21.D

Richardson v Howie [2004] EWCA Civ 1127, [2005] PIQR Q48

In a claim for injuries sustained in a domestic assault the Court of Appeal set aside an award of "5,000 aggravated damages. A compensatory award for assault may include an element for insult and injury to feelings and this should not be characterised as aggravated damages except in a wholly exceptional case.

[Added May 2007]
Injury Damages
Chapter 22.G Judicial Studies Board Guidelines

The eighth edition of the Guidelines has been published, and is available from OUP. The figures for the awards of damages have been increased, largely as a result of inflation, and there are no other significant changes.

[Added May 2007]
Chapter 23 Multipliers

The Government Actuary"s Department has published the 6th, 2007 edition of the Ogden Tables for calculating multipliers. The Tables are available from The Stationary Office or from the website of the Government Actuary"s Department. New mortality statistics have resulted in a slight increase in the figures for lifetime and pension loss for young claimants. More significant however is the provision of a much more detailed analysis of the discounts that should be made in claims for loss of earnings to take account of contingencies other than mortality. This new material in the explanatory notes, based on recent research, will make it more complicated and therefore also more uncertain to assess the level of this discount, and in most cases the new material is likely to result in the level of discount being significantly greater than before. The notes also give some new guidance on the division of a global multiplier into steps for use in cases where there are future changes in the level of loss or need.

Loss of Earnings
Chapter 24G Alternative work

Woodrow v Whitehead 10 December 2001 unrep Rougier J

The claimant bricklayer suffered a back injury and was unable to return to work. He suffered a loss of earnings while he retrained for a qualification in production management. His prospects in this alternative work were of a better income than he would have earned as a bricklayer, but the court awarded the past loss without requiring the claimant to offset against this loss the prospect of better earnings in the future. "I reject entirely the defendant's contention that the claimant should give credit to the fact that ultimately he will be earning more than if he were still employed in the career of his choice. If in accordance with his duty to minimise his loss the claimant by hard work and the sacrifice of work he enjoyed switches to something less congenial, but will manage in the medium future to be financially better off, that is not something that tortfeasor should take advantage of."

Professional and residential care
Chapter 25B

Cost of residential care and relevance of local authority provision

Sowden v Lodge [2004] EWCA Civ 1370 [2005] 1 All E R 581

Where the provision of care by a local authority falls short of the care which the claimant reasonably requires then the defendant must pay for private provision but if the local authority's provision meets the claimant's reasonable needs the defendant does not have to pay for a different regime.

Tinsley v Sarkar [2005] EWHC 192 [2006] PIQR Q1
Walton v Caderdale Healthcare [2005] EWHC 1053 [2006] PIQR Q54
Gobbold v Mahmood [2005] EWHC 1002 [2006] PIQR Q70
Freeman v Lockett [2006] EWHC 102

Cases where at first instance it was held that the claimant was entitled to recover the cost of a residential care regime which met his needs and was not obliged to accept less satisfactory provision of the kind that the local authority would have provided under its statutory duty.

Provisional damages
Chapter 30.A

Adan v Securicor [2004] EWHC 394, [2005] PIQR P79

As a result of a head injury the claimant developed psychotic symptoms and was detained at Rampton Hospital under the Mental Health Act. He was likely to be detained for the foreseeable future but there was a chance that he would improve and be discharged to the community where he would incur expenses for accommodation and care for which the defendant would be liable. However this was only a speculative possibility and did not meet the criteria of developing a serious disease or serious deterioration in his condition under s. 32A SCA 1981. The court refused to make a provisional award and refused to adjourn the assessment of damages because of the interest in the finality of litigation.

[Added May 2007]
Chapter 33 Interim payments

Spillman v Bradfield Riding Centre [2007] EWHC 89
Wade v Turfrey (2007) 9 March

Two cases which confirm the Stringman v McArdle approach, that the claimant applying for an interim payment may prove a particular intention if he wishes but does not need to demonstrate any specific need in order to be entitled to an interim payment of a reasonable proportion of the likely final award. In Spillman, it was suggested that a reasonable proportion is likely to be about 70% to 75%.

Interim Payment and Clinical Case Management
Chapter 33.A
Paragraph 33.07

Wright v Sullivan [2005] EWCA Civ 656

In this case the claimant, who had suffered brain damage in a road traffic accident such that she was a patient and required daily supervision and care, applied for an interim payment of "50,000. She identified a purpose of appointing a clinical case manager to set up an appropriate care regime. The defendant agreed that a clinical case manager should be appointed, but proposed that this should be a joint instruction with a view to the case manager appointed providing a report. The judge awarded the interim payment without any conditions, and a strong Court of Appeal upheld this. The court noted the principles and guidelines for case management best practice issued in January 2005 by BABICM. This is a therapeutic relationship, and different from the collaboration described by the Rehabilitation Code. The Court of Appeal held [26] that the clinical case manager owes his/her duties to the patient alone. The case manager, if he strict she gives evidence, would be a witness of fact only. The court should not seek to impose a requirement of disclosure which might undermine legal professional privilege if, for example, the case manager were to attend a conference with the claimant legal advisers. Nonetheless the Court encouraged as much openness in the exchange of information and views as is possible.

The guidelines referred to are easily available on the BABICM website.

Chapter 31

Structured settlements

Structured settlements have little attraction now that the power to award periodical payments has been introduced. See the separate article on this power. The Court of Appeal has opened the door to the use of more generous indexation than RPI in periodical payment awards in Flora v Wakom [2006] EWCA Civ 1103.

---

Other Major Developments

Rules for Peridiocal Payment Orders
Paragraph 21.07
Paragraph 31.06

The new rules for periodical payment orders will come into force on 1 April 2005. A periodical payment order can be made in any current case but an order including a power of variation can only be made in a case issued after the commencement date. Click here for an article setting out the effect of the new rules and the relevant materials.

[Added May 2007]
Periodical Payments

Flora v Wakom [2006] EWCA Civ 1103, [2007] PIQR Q23 CA

The defendant applied to strike out, as having no realistic prospect of success, the part of a statement of case setting out the claimant"s case to be supported by expert evidence that periodical payments should be varied according to the Average Earnings Index rather than RPI. The Court of Appeal refused to shut the claimant out from advancing this argument.

YM v Gloucestershire Hospitals NHS Foundation Trust [2006] EWHC 820

Forbes J held that the arrangements for meeting the liabilities of foundation trusts were sufficiently secure for a periodical payments order to be made, where arrangements had been made for the NHSLA to be legally responsible for the payments.

Thompstone v Tameside & Glossop NHS [2006] EWHC 2904

Swift J held that the future variation of a periodical payments order for care needs should be in accordance with the 75th percentile of the annual survey of occupational earnings for care assistants and home carers (ASHE 6115), rather than RPI or the average earnings index.