SERIOUS INJURY CASES: ANOTHER EXAMPLE OF THE JUDGES GOING BACK TO BASICS

An earlier post looked at several cases this year where judges have considered fairly fundamental principles of damages when assessing serious personal injury claims.  This trend can be seen again in a case decided today Robshaw -v-United Lincoln Hospitals NHS Trust [2015] EWHC 923 (QB).

THE CASE

Mr Justice Foskett was assessing a case where a boy was serious injured due to clinical negligence at birth. He was now aged 12. Very little was agreed (the trial lasted 11 days and there were 91 files of documents).

The approach in law to the valuation of aspects of the claim

161.Before turning to the disputed areas of the claim, I should refer briefly to the extensive written submissions that each side has advanced concerning what is said to be the “correct” approach to determining whether any particular feature of the claim is sustainable. The submissions would seem to mirror contentions advanced in other cases over the last few years.

162. The starting-point is not in issue: a claimant is entitled to damages to meet his or her “reasonable requirements” or “reasonable needs” arising from his negligently caused disability (see, e.g., Sowden v Lodge [2004] EWCA Civ 1370) and should receive full compensation. The issue that may arise, it is said, is when there is a range of “reasonable” options to meet those needs. In that situation is the court permitted or obliged to choose the cheapest option or that which the claimant advances? Reference has been made to Heil v Rankin [2001] 2 QB 272, Rialis v Mitchell, 6 July 1984,Massey v Tameside & Glossop Acute Services NHS Trust [2007] EWHC 317 (QB), Taylor v (1) Chesworth (2) MIB [2007] EWHC 1001 (QB) andA (by her Litigation Friend H) v Powys Health Board [2007] EWHC 2996 (QB), on the one hand, and Iqbal v Whipps Cross NHS Trust [2006] EWHC 3111 and Whiten (see above), on the other. Totham (see paragraph 189 below) was also referred to.

In Whiten Swift J said that the approach she adopted was as follows [5]:

“The claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is “reasonable”, I have had regard to all the relevant circumstances, including 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.”

1. My attention was drawn after the conclusion of the hearing to a decision of Warby J in Ellison v University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB) where it appears that the Defendant sought to widen the scope of what Swift J had said. In rejecting that argument Warby J said this:

“18. 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.

19. The defendant’s submissions went beyond this, however. They included the more general proposition that a claimant should not recover compensation for the cost of a particular item which would achieve a result that other methods could not, if the cost of that item was disproportionately large by comparison with the benefit achieved. I do not regard Whiten as support for any such general principle, and Ms Vaughan Jones did not suggest that Swift J had applied any such principle to the facts of that case. She did suggest that her submission found some support in paragraph [27] of Heil v Rankin, where Lord Woolf MR observed that the level of compensation “must also not result in injustice to the defendant, and it must not be out of accord with what society would perceive as being reasonable.”

20. Those observations do not in my judgment embody a proportionality principle of the kind for which the defendant contends, and were in any event made with reference to levels of general damages for non-pecuniary loss. Ms Vaughan Jones cited no other authority in support of the proportionality principle relied on. I agree with the submission of Mr Machell QC for the claimant, that the application to the quantification of damages for future costs of a general requirement of proportionality of the kind advocated by Ms Vaughan Jones would be at odds with the basic rules as to compensation for tort identified above.”

1. I am disinclined to express any concluded view of my own on any issue of principle that may be said to arise in this general context largely because it is difficult to find any head of claim in the present case that could be affected by the resolution of any such issue of principle. I would, however, tentatively express my agreement with Warby J’s analysis of Swift J’s formulation of the correct test.
2. To my mind, in assessing how to provide full compensation for a claimant’s reasonable needs, the guiding principle is to consider how the identified needs can reasonably be met by damages – that flows from giving true meaning and effect to the expression “reasonable needs”. That process involves, in some instances, the need to look at the overall proportionality of the cost involved, particularly where the evidence indicates a range of potential costs. But it all comes down eventually to the court’s evaluation of what is reasonable in all the circumstances: it is usually possible to resolve most issues in this context by concluding that solution A is reasonable and, in the particular circumstances, solution B is not. Where this is not possible, an evaluative judgment is called for based upon an overall appreciation of all the issues in the case including (but only as one factor) the extent to which the court is of the view that the compensation sought at the top end of any bracket of reasonable cost will, in the event, be spent fully on the relevant head of claim. If, for example, the claimant seeks £5,000 for a particular head of claim, which is accepted to be a reasonable level of compensation, but it is established that £3,000 could achieve the same beneficial result, I do not see that the court is bound to choose one end of the range or the other: neither is wrong, but neither is forced upon the court as the “right” answer unless there is some binding principle that dictates the choice. It would be open to the court to choose one or other (for good reason) or to choose some intermediate point on the basis that the claimant would be unlikely to spend the whole of the £5,000 for the purpose for which it would be awarded and would adopt a cheaper option or for some other reason.
3. I apprehend that parties have been settling cases and the courts have been deciding cases on this broad approach for many years without doing violence to the full compensation principle. Inevitably, broad-brush judgments are called for from time to time and, as I have been invited by both parties to do on occasions in this case (where so many individual items remain in dispute), the court must simply “take a view”. I will be adopting that broad approach, where appropriate, when considering certain disputed heads of claim in this case.

Tags: Damages