ASSESSING DAMAGES: WHY THE JUDGES GO BACK TO BASICS AND THE VERY PRACTICAL CONSEQUENCES

 By Gordon Exall

Recent cases have show that, when faced with difficult issues of calculation in personal injury cases, judges look back at the very basic principles of personal injury damages. These cases show how important the basic principles of personal injury damages are. The multiplicity of tools now available to assess damages can often lead to the most basic, and important, principles of the law of damages being overlooked when preparing for a trial. It is clear, however, that judges often look to these basic principles first when considering a complex assessment of damages.

Here we look at three cases, decided within the past three months, which illustrate the judicial tendency to consider the basic tenets of damages before applying these to the particular facts.

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

Most recent 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 compensated: Livingston 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, 6^th 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, 19^th 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.

WHERE CAN I FIND THESE BASIC PRINCIPLES SET OUT?

Needless to say they are set out clearly and succinctly in the latest edition of Munkman on Damages for Personal Injury and Death.

Tags: Damages, Gordon Exall, Principles of damages