GENERAL DAMAGES ARE NOT REDUCED BECAUSE OF AGE: THE LAW SET OUT WITH CLARITY

 By Gordon Exall

There are many reasons why personal injury litigators should read the decision of Judge Curran QC (sitting as a judge of the High Court) in Miller -v- Imperial College Healthcare NHS Trust [2014] EWHC 3772 (QB). One of the reasons is the detailed analysis of the argument that damages for pain and suffering should  automatically be reduced because of a claimant’s age. As the judgment shows age can be an aggravating factor, not a matter that leads to a reduction in the award.

THE CASE

The claimant, now aged 70, suffered negligent clinical treatment which led to the amputation of her left leg above the knee. Liability was admitted.

DISCUSSION OF THE RELEVANCE OF THE CLAIMANT’S AGE TO THE AWARD OF DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITY

The significance of age as a factor: Nutbrown v. Sheffield Health Authority

1. Counsel for the defendant Trust, Mr Barnes, at the forefront of his submissions took a point on the age of the Claimant. He invited my attention to the case of Nutbrown v. Sheffield Health Authority [1993] 4 Med. L.R. 187, Q.B.D. (Potts J). The principle to be derived from that case, counsel submits, is that in assessing general damages for pain, suffering, and loss of amenity the court should take as a starting point the appropriate award for a man or woman “in the prime of life” (which Potts J in that case set at the age of 30). The court should then reduce the award for any Claimant who was not in the prime of life. In Nutbrown the Claimant was aged 72 at the time of the cause of action, 76 at trial, and his life expectancy was limited to 6 years post-trial. The learned judge halved the award he would have made to someone in his prime, taking into account, inter alia, the age of the Claimant. (In another case, Laycock v Wm Morrisson [1991] CLY 1381 His Hon. Judge Cotton discounted an award to a 79-year old by one-third on account of his age).
2. It is, however, clear from the terms of the judgment in Nutbrown that age was only one of the factors which led Potts J to reduce what would otherwise have been the appropriate sum for damages for pain, suffering, and loss of amenity. At page 188 in the report he made reference to the following matters:

“As a result of the brain damage sustained in consequence of the defendant’s negligence all aspects of Mr Nutbrown’s cognitive function have been catastrophically affected. He cannot cope with even the simplest arithmetic. He is frequently confused and disorientated. He can… just about manage to live alone near his daughter.”

The learned judge then made reference to the question of “the plaintiff’s insight” into his condition, which was limited, and which he described as “important”. He said that that was one of the matters which affected a deduction from the prime-of-life level of award. He continued,

“What is the appropriate reduction? It is not an easy task that the court is called upon to carry out. Precision, in my judgment, in the nature of things, is out of the question. One must look at all the circumstances of the case and, in particular, consider the plaintiff as he was before his injury and as he has become, and, of course, have regard throughout to his age at the time of the injury, the time of the trial, and his life expectancy. In this case I place great emphasis on the extent of the plaintiff’s disability. But I do not overlook, and give full weight to, what has been said about the plaintiff’s limited insight into his condition. Against that [counsel for the plaintiff] makes the point, which, in my view, is a good point, that the court must bear in mind that at the age of 70 this man, in apparent good health, was deprived of the enjoyment of his last years. That, in my judgment, is a factor that sounds in damages and I take it into account.“

1. The suggestion (if that is what it was) that Nutbrown is authority for a proposition that an award of damages for a 72-year old should be approaching half that which would have been appropriate for a 30-year old, does not bear detailed examination. It is perfectly clear that Potts J took into account in that case in particular the plaintiff’s limited life expectancy and his limited insight into his condition. The facts of that case were very different from the facts of the instant case.
2. Moreover, there are some observations made by the authors of “Personal Injury Schedules” (Bloomsbury Professional) 3^rd edition, at paragraphs [D104]ff. which seem to have some relevance to the point of principle for which counsel for the defendant Trust contends. Having made reference to the case of Nutbrown, it is submitted by the authors that after calculating the figure appropriate for a man in the prime of life, the next step is to reduce that figure in light of all the particular circumstances of the case. In particular, judges should give consideration to the state of health of the Claimant before the accident. They make reference to the case of Frank v Cox (1967) 111 Sol. Jo. 670, in which the plaintiff was a man of 77 who had suffered a hip injury. The same injury in a younger man could have been remedied by surgery. For various reasons that was not a course open to the plaintiff. Sachs LJ said,

“I take the view myself that when one has a person in advancing years, in some respects impairment of movement may perhaps be more serious than it is with a younger person. It is true… that the plaintiff has not got as many years before him through which he has to live with this discomfort, pain and impairment of movement. But it is important to bear in mind that as one advances in life one’s pleasures and activities particularly do become more limited, and any substantial impairment of the limited amount of activity which a person can undertake, in my view, becomes all the more serious on that account.”

1. The authors of Personal Injury Schedules then make the following observation at [D 107] “… this may have particular relevance where a Claimant is at or nearing retirement age at the time of injury”. They explain that the Claimant may have been specifically looking forward to “taking life easy pursuing his or her leisure interest”. For example, in Spencer v ARCO [1996] CLY 2240 the Claimant had been retired for some years, and the judge found that the last few years of his life had been considerably blighted by reason of his injuries. Further, in Sutton v Ling [1999] CLY1550 the Claimant was aged 58 at the date she suffered a road traffic accident, and 61 at the date of trial. She suffered a whiplash injury to her neck, together with scalp muscle contraction, headaches, an adjustment disorder and an acute stress reaction. Her ability to sail, to sew, to decorate, garden, and keep house had been significantly impaired. The judge consequently held that the Claimant’s quality of retirement had been adversely affected by reason of her injuries, and took this into account when assessing the appropriate award for pain, suffering, and loss of amenity.
2. At paragraph [D108] the authors suggest that the argument concerning age is “double edged“. Young Claimants may argue that they have a greater length of time to suffer with the effects of the injury, and can also put forward their previous active lifestyle and show much how they have lost. “[A]n alternative argument” (they say) can be made by the elderly Claimant. He or she is less resilient than the young and so suffers the relevant injury for longer, or perhaps for life. Moreover, the older Claimant may have had extensive plans for retirement. (Alternatively, I would add, as in this case may have had very real plans to continue working in employment which she enjoyed, and which gave her real satisfaction and fulfilment, in agreeable West End surroundings, far beyond normal retirement age).

“These valuable years have now been blighted by injury, and an award can be increased due to the Claimant’s limited prospects of any social interaction. The very fact that the Claimant had only a limited ability to perform hobbies can be very telling if even that has now been removed. Therefore, Potts J’s approach in Nutbrown v. Sheffield Health Authority of assessing a man in the prime of his life and then deducting for particular circumstances, may also apply in the opposite direction. If a circumstance means a man beyond the prime of his life suffers more, then the award should be increased.” [Ibid.]

1. Mr Barnes then submitted that I should take account of the fact that the amputation in this case was not at so high a point that no prosthesis could possibly be fitted. Secondly, that there were no enduring psychological problems. Thirdly, that on all the evidence the most recent prosthetic aid used by the Claimant had had an excellent outcome (that is a point which has a tension of its own, since it is the defendant Trust’s case that the most recent prosthesis is unnecessarily and unreasonably expensive: I shall deal with that as a separate head of claim below). Fourthly, there was no evidence of osteoarthritis. Thus, the Claimant’s case was only aggravated (in terms of the Judicial College’s aggravating factors) by reason of backache. On that basis, he submitted, taking account of the Claimant’s age, the award for pain and suffering and loss of amenity should be discounted down to the point of £55,000, which, he submitted, was “comfortably within Nutbrown”.
2. In attempting to draw together all the relevant threads in this assessment, I make the following findings:

(1) The Claimant’s damages for pain, suffering, and loss of amenity are to be assessed having regard to her age at the date of the breach of duty, namely when she was 63, but as she said in her witness statement she “felt ten years younger“.(2) I accept the Claimant’s evidence that she was then a fit, healthy, lively woman who enjoyed work and an active social and family life. She was physically in very good condition. She swam and visited the gym on a regular basis. Although she did not use the expression, she seems to have regarded herself, understandably, as being little past the prime of life.

(3) Mrs Miller was at all material times, and remains, a much-valued account manager by the Givenchy Perfume & Cosmetics department at John Lewis plc. She enjoys work, finds it stimulating, and regarded her ability to continue working as an important means of maintaining a reasonable income. Her employment was not pensionable. Quite remarkably, despite her disability, she continues at the age of 70, to work for 2 days a week. I am entirely satisfied that, had she not lost her leg as a result of the negligence of the defendant Trust, she would have worked for at least four days a week.

(4) The Claimant’s life expectancy is virtually unchanged.

(5) Whilst she has complete insight into her condition and has coped with the psychological effects of that admirably, her mental fortitude should not reduce the weight such effects must be given in the overall balance. From all that I saw, heard and read, I formed the clear impression that the Claimant is a lively out-going woman, who takes considerable pride in her appearance. The impact of so seriously disfiguring an injury upon her cannot be under-estimated.

(6) The injury caused by the defendant Trust has jeopardised all Mrs Miller’s plans for the future. At a critical time in her life she has been forced to suffer a massive physical and mental blow which affects her basic mobility, her independence and self-respect, her confidence, her social life and her ability to continue to work for as long as she would have wished. She will suffer the consequences of her injury for life.

(7) Whilst a younger person might have developed the physical resources to cope, even better than Mrs Miller has, with walking with a prosthesis, she was confronted with the challenge at a time in life when her physical resources were beginning to wane with age.

1. I do not entirely accept the submissions, attractively made as they were, on behalf of the defendant Trust by Mr Barnes, in respect of discount for age on the basis of the case of Nutbrown. Quite apart from the obvious distinctions which may be drawn between that case and this case on the facts, particularly on the relevant ages and life expectancies, to make a deduction in the quantum of damages to the extent that Mr Barnes submits would be appropriate would be to pay insufficient regard to the seven particular factors mentioned in the preceding paragraph. I do not think that would be right.
2. The court must make an award which is fair and just for a Claimant who was young for her years, fit and active, and intending to work for as long as she could. In very many respects the Claimant is quite different from the plaintiff in Nutbrown. Unlike him, the age at which she was eligible for an award of damages for pain and suffering and loss of amenity is 63. For anyone at that age to have the level of physical fitness, agility and mobility, which I find as a fact the Claimant had, was a very positive advantage, and she has been deprived of much of that as a result of the defendant’s negligence. I therefore think that the matters, other than age, which informed the decision of Potts J in Nutbrown are of very limited applicability in the instant case.
3. Mr Hough, for the Claimant, made the valid point that the Judicial College do not suggest that there should a range of discounted awards on the basis of age. Some modification should be made of the overall award which might be applicable in the case of somebody aged 30 or so with identical injuries and consequential effects, but there is no justification for a discount here which approaches the level apparently applied in Nutbrown. What Steyn LJ (as he then was) referred to as “mechanical jurisprudence” was not to be encouraged in the field of liability in tort (seeMills v. Barnsley Metropolitan Borough Council [1992] P.I.Q.R. P291). Arithmetical jurisprudence in the assessment of quantum by the making of set discounts for age has no foundation in case law. It is inappropriate, in my view, for the reasons I have given and for those articulated by the authors of Personal Injury Schedules. Indeed, in Nutbrown itself Potts J did not give any indication that he had applied any particular percentage as a discount for age, and made it quite clear that he was taking an overall view. In fairness, nor did counsel for the defendant Trust submit that any particular percentage discount should be made.
4. Bearing those matters in mind, and standing back and looking at the case with some experience of serious personal injury cases, I think that an award of damages for pain, suffering, and loss of amenity of only £55,000, as contended for by Mr Barnes, would be wholly unrealistic. Taking an overall view in this case, upon the basis that the case, bad though it is, does not reach the uppermost limit of the range, and making some modification for age, it seems to me that a figure of £87,500 is appropriate for general damages for pain, suffering, and loss of amenity

OTHER ASPECTS OF THE CASE OF INTEREST

Other interesting aspects of the case include:

• The claimant’s retirement age (the judge held that she would have gone on to work 4 days a week to the age of 75 had she not been injured).
• The treatment of the defendant’s evidence in relation to the value of the prosthetics (see in particular paragraphs 92 of the judgment).
• Paragraph 94 – on the limited importance of proportionality in the assessment of damages for future needs (in this case a relatively expensive prosthetic leg).

Tags: Claimant, Clinical negligence, Damages, Gordon Exall, Medical negligence, pain and suffering