Legal Watch: Personal Injury 5th March 2015 Issue: 054
Civil procedure/interim payments In last week’s Legal Watch we commented on how relatively rare case reports had become in relation to interim payment
In this issue:
in pairs as we now have another: Gould v Peterborough &
• Civil procedure/interim payments
Stamford Hospitals NHS Foundation Trust [Lawtel 27/02/2015].
• Damages
The claimant, who was eight years old, suffered from cerebral
• Civil procedure/withdrawal of admission of
The defendant had admitted liability. There was uncertainty
• Watch this space
applications. It appears that like buses they then come along
palsy that had been caused by the defendant’s negligence.
liability
as to how the claimant’s cognitive ability would develop and
so it was agreed that the trial on quantum would be stayed
until she was 11. The interim payments paid to date totalled
£1.115m. The defendant opposed the application for a further
interim payment, arguing that a further award was not justified as the claimant had already received almost all that would be awarded at trial.
The claimant submitted that a further interim payment was necessary as it would be wrong to leave her with a care regime
in place and aspects of her lifestyle set up, but without the funds available to fund that lifestyle until the trial.
‘The judge’s first task was to assess the likely amount of the final judgment, considering that the assessment should be carried out on a conservative basis.’
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The deputy High Court judge held that under CPR 25.7(4) the court could not order an interim payment of more
than a reasonable proportion of the likely amount of the final judgment. The judge’s first task was to assess the
likely amount of the final judgment, considering that the
assessment should be carried out on a conservative basis. Applying Eeles v Cobham (2009) the interim payment would
be a reasonable proportion of that assessment, and might well be a high proportion, provided that the assessment had been conservative. The objective was not to keep the
claimant out of his money but to avoid any risk of overpayment. The court also had to be careful not to establish a
status quo in the claimant’s way of life which might have the effect of inhibiting the trial judge’s freedom of decision. The court could consider future loss in its assessment. The court
should not carry out a mini trial. It had to be conservative but realistic.
With regard to general damages, it was likely that the claimant
would receive £250,000 at trial. As to past losses, large sums had been spent to purchase and adapt a property and
£535,000 was an appropriate figure. For anticipated regular expenditure to trial, it was likely that the claimant would be awarded £247,000. With regard to capital expenditure, the
costs of a wheelchair, an adapted vehicle and a caravan would also likely be awarded at trial. The claimant was
growing and had a number of different needs and abilities. The appropriate figure was therefore £100,000. With regard
to future accommodation costs, looking at the context and circumstances of the claimant’s disability, the court should
not reduce the figures for rent which the parents would have had to pay in any event. Future accommodation costs would likely be assessed at £450,000.
That gave a total figure that was likely to be awarded at trial of £1.582m. It was reduced by 90 per cent to £1.423m.
Since £1.115 million had already been paid to the claimant, the defendant was to pay her an additional interim payment of £308,800.
02
Damages Atkinson v Pathak and another [Lawtel 2/03/2015] is on its
The deputy High Court judge held that the surveillance
of claim that will be familiar to many readers.
use a ladder in a conventional manner despite telling the
own facts but nevertheless sees a judge dealing with a type
The claimant had been working as a self-employed gardener when in December 2009 the first defendant had negligently
run over his left foot when mounting the pavement in the course of performing a U-turn. The claimant had required
various surgical interventions after the accident. He returned to work as a gardener in August 2010 but by early 2011
found it too difficult to continue to work. The claimant’s case
was that, as a result of the injuries suffered in the accident, he had been rendered permanently unfit to undertake basic
activities involved in the gardening business. In particular,
he alleged that the pain in his foot meant that he was unable to use either a telescopic ladder or a step-ladder. He argued that, but for the accident, he would have continued in his
employment generating a net annual income of £38,000
for at least another five years. As to general damages, he alleged that his injuries fell within the “severe” category and sought an award of around £40,000.
The defendants admitted liability for the claimant’s losses up
to August 2010, namely when he had returned to work, but argued that after that date the effect of the injuries resulting
from the accident had ended. They relied on surveillance footage of the claimant which showed him using a telescopic ladder and step-ladder after the accident. They also relied
on a GP record and an old version of the claimant’s CV
which both indicated that the claimant suffered from arthritis in his hands which had previously caused him to
have to give up his gardening business. The parties also relied on reports from medico-legal experts. The claimant’s expert opined that all of the claimant’s current pain had
been caused by the trauma of the accident, whereas the defendants’ expert considered that the claimant suffered from constitutional abnormalities in his foot which were the cause of his continuing pain.
footage demonstrated that the claimant had been able to experts something different. Further, it was clear from the GP
record and his own CV that he had had a significant problem with his hands before the index accident. In the context of assessing the extent to which the accident had affected his
earning capacity, in particular his ability to undertake yearon-year work, having regard to the surveillance evidence, GP record and CV, his reliability as a witness of fact was
clearly in doubt. In light of that material, it was not possible
to accept his evidence regarding the pain suffered and the effect it had had on his physical capacity.
‘...the claimant’s expert appeared to have taken the claimant’s explanation of the pain and disability he had suffered at face value and without adequate scrutiny.’ Constitutional abnormalities had had an impact on the claimant’s physical capacity. Although it was understandable that he would have initially thought that all of his foot problems had flowed from the accident trauma, in fact
constitutional abnormalities had arisen so that not all of his
problems were attributable to the accident. The evidence of the defendants’ medico-legal expert was preferable to that of the claimant’s expert. His analysis from the outset had always been broadly accurate and scrupulously fair,
whereas the claimant’s expert appeared to have taken the
claimant’s explanation of the pain and disability he had suffered at face value, and without adequate scrutiny.
03
The defendants’ methodology and approach to loss of
earnings was preferable to that of the claimant. It was
impossible to accept the claimant’s assertion that he had been completely free from any injury before the accident which would have impinged on his ability to carry out his
gardening business. There was no basis for the assumption advanced by him that his business would have continued
week-on-week for at least another five years. His period of initial recovery until August 2010 was reasonable and upon
his return to work he had substantially recovered from the
effects of the injury. Although it was fair to acknowledge that he had some continuing pain, it was not of such a
frequency, degree or intensity to be sufficiently disabling. However, it was noteworthy that the initial injury was serious
and had had significant physical and psychological effects. In those circumstances, the appropriate cut-off point for
loss of earnings was 12 months and the appropriate award was £15,000.
In all the circumstances, given the limited duration of the
symptoms and the limited effect on the claimant’s physical capacity, the appropriate award in general damages was £12,500.
04
Civil procedure/withdrawal of admission of liability Jackson/Mitchell/Denton Although it is not a personal injury case, Home Group Ltd
v Matrejek (2015) EWHC 4441 (QB) illustrates a softening of the court’s attitude in a case in which the three stage
test from Denton was applied following the dismissal of the claimant’s possession claim.
The claimant had failed to attend a directions hearing but the judge later allowed relief from sanctions and reinstated the claim. The defendant appealed.
In this case, the judge had carried out that three-stage approach. He had found that the claimant’s failure to attend the directions hearing had been a non-trivial, serious or significant default. He had found that the reason for the
default had been a misguided attempt to save costs upon an apparent misunderstanding of an earlier court order which was, on one reading, potentially partially valid. In evaluating
all the circumstances of the case, he had been entitled to
take into account the lack of prejudice to the defendant tenant, the rights of her neighbours and the limited extent
Dismissing the appeal, the High Court judge held that a
to which court time had been lost. Although the balance
in three stages. First, identifying and assessing the
of his discretion, to conclude that the just outcome of the
judge should address an application for relief from sanctions
was a fine one, the judge had been entitled, in the exercise
seriousness and significance of the failure to comply with
application was to grant relief.
CPR 3.9(1). Second, considering why the default occurred.
Comment
any rule, practice direction or court order which engaged And third, evaluating all the circumstances of the case, so
as to enable the court to deal justly with the application, including the need for litigation to be dealt with justly and at
proportionate cost and the need to enforce compliance with rules, practice directions and orders.
‘Although the balance was a fine one, the judge had been entitled… to conclude that the just outcome of the application was to grant relief.’
This case illustrates the re-emergence of the concept of doing justice between the parties, even where the default
has been serious and the reasons for the default misguided. It is interesting to see that the judges did consider the seemingly important factor of the impact of the default on court resources but found it to be limited.
05
Watch this space Multipliers in fatal accident cases In Legal Watch: Personal Injury 30 we reported the first
instance decision in the fatal accident case of Knauer v Ministry of Justice.
The claimant submitted that financial dependency up to
the date of trial should be treated as special damages, with
a small discount for the uncertainties of life but none for accelerated receipt, and that the multiplier for future loss
should be calculated from the date of judgment, not death. The High Court judge indicated that he would have followed that route had he been able to do so. However, he was
bound by Cookson v Knowles (1979) and Graham v Dodds
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(1983) to adopt the conventional approach.
We understand that the Supreme Court has granted permission for the claimant to appeal the decision. The
hearing is likely to take place late this year and if the claimant
is successful we will see the implementation of the approach to fatal accident calculations that has been advocated for many years by the Ogden working party.
Court fees The much publicised, substantial increase in court fees is
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