ANOTHER EXAMPLE OF JUDGES GOING BACK TO BASICS WITH PERSONAL INJURY DAMAGES

Earlier posts on this  blog have noted how common it was becoming for judges to review the basic principles of personal injury damages when called upon to decide difficult issues of fact in serious personal injury cases.  Another example of this can be seen in the judgment yesterday of Mrs Justice Cox in Manna -v- Central Manchester University Hospitals NHS Foundation Trust [2015] EWHC 2279 (QB).

THE CASE

The claimant, now aged 18, suffered brain damage at birth.  The court had previously approved a compromise on liability of 50% of damages.  The judge was called upon to determine several issues relating to the extent of the injuries and damages.

KEY POINTS

  • The basic purpose of damages is to put the claimant in the position they would have been in had the injury not occurred.
  • A claimant is entitled to damages to meet their reasonable needs arising from the injuries.]
  • The issue of mitigation of loss is covered by a range of “reasonableness”. If a claimant undertakes treatment/incurs expense within a range of reasonableness then this does not amount to a failure to mitigate.
  • The fact that there is a finding/agreement in relation to liability is irrelevant for the purpose of assessing damages (except insofar as it explains past decisions in relation to care/expenditure).

STATEMENT OF THE BASIC LAW OF DAMAGES

The Relevant Legal Principles
    1. The principles that govern the assessment of damages are well established and are not in dispute. The purpose of an award of damages in personal injury claims is, so far as is possible, to put the Claimant in the position he would have been in had he not been injured. In Heil v Rankin et al[2001] 2 QB 272, Lord Woolf MR giving the judgment of the Court of Appeal, said as follows at paragraphs 22, 23 and 27:
“… the aim of an award of damages for personal injuries is to provide compensation. The principle is that ‘full compensation’ should be provided… this principle of ‘full compensation’ applies to pecuniary and non-pecuniary damages alike… the compensation must remain fair, reasonable and just. Fair compensation for the injured person. The level must also not result in injustice to the Defendant, and it must not be out of accord with what society as a whole would perceive as being reasonable.”
  1. This Claimant is therefore entitled to damages to meet his reasonable needs arising from his injuries. Reasonableness always depends on the particular circumstances and it applies both to the head of loss claimed and to its amount. Disputes as to future losses will often require the court to make an assessment of the chances of various future events.
  2. In relation to expenses already incurred the Claimant and those who act on his behalf have a duty to take reasonable steps to mitigate his loss. In relation to a particular choice of treatment, for example, or transport, as arises in this case, the key is reasonableness. If the choice is unreasonable it will result in injustice to the Defendant and will not be recoverable. Provided the Claimant’s choice is within the range of potentially reasonable options open to him, he will have reasonably mitigated his loss. A Defendant cannot reduce his liability by arguing that the Claimant should have chosen a cheaper option from within that range.
  3. In determining quantum the liability compromise agreed between the parties and approved by the court is irrelevant for the purpose of calculating the appropriate award of damages under each head of claim. This is agreed save, as will become apparent, in so far as it is said to explain the conduct of the Claimant in respect of sums already received for Lamarieo’s care, and offered during the trial in respect of accommodation.”

RELATED POSTS

Advertisements

2 comments

  1. […] Gordon Exall considered the basic principles of personal injury damages in Another example of judges going back to basics with personal injury damages […]

  2. […] Exall considered the basic principles of personal injury damages in Another example of judges going back to basics with personal injury damages (August […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: