EAGLE V CHAMBERS [2004] EWCA Civ 1033
QUANTUM
FACTS:-
The Claimant suffered very serious injuries in a road traffic accident. Contributory negligence was set at 40% by the Court of Appeal. On the issue of quanturm, the trial judge awarded the sum of £1,499,268.13, which sum was appealed to the Court of Appeal.
HELD:-
Lord Justice Waller described the various issues for appeal:-
The cost of a care regime and accommodation
The first sub issue was whether the judge was right in finding that the Claimant needed a privately funded regime as opposed to a top up to the regime being provided by Social Services. The second sub issue was whether (if a private care regime was required) the judge was right to take the Defendant’s nursing expert’s (Tessa Gough) advice with some adjustment, or whether significantly greater adjustments were required.
The Kemsley Unit Issue
The Claimant was admitted to this unit shortly before trial. The Defendant applied to adjourn the trial as the 12 week assessment period had not been completed. This application was refused. The trial judge found that assessment at the unit would be appropriate and that it was likely that the Claimant would undergo a further nine months treatment. However on appeal the Defendant’s counsel was constrained to accept that the Defendant should pay for the cost of the assessment. Waller LJ said that the finding in relation to the nine months’ treatment was also unassailable. This aspect of the appeal would be dismissed.
Care Regime
The judge took the view that there should be a change in the Claimant’s care regime and that this fell to be funded by the Defendant, not social services. However he accepted the figures put forward by the Defendant’s expert with some modification. Waller LJ said that it would not be right to reconsider the judge’s finding of an alternative care regime in the Court of Appeal. However the Claimant’s counsel had attacked the judge’s reliance on Appendix C of Tessa Gough’s (the Defendant’s nursing expert) report. Waller LJ said that the problem here was that Tessa Gough and two carers had not been examined on this issue, and the submissions now made were not supported by any evidence. In reality, those advising the Claimant had concentrated their arguments on seeking to persuade the judge that he should adopt the private care regime of another nursing expert, Maggie Sargent. They did not challenge Tessa Gough’s figures if that failed. It was too late to do so now.
Benefits referred to in the second Schedule of the Social Security (Recovery of Benefits) Act 1997
In relation to income support, the Defendant’s solicitor had conceded that the judge should not have deducted £30,237.80 from the Claimant’s past earnings. As regards mobility allowance, the issue was whether the judge’s finding that the Claimant would be obliged to use that allowance to partake in the Mobility Scheme in order to provide herself with transport, which would provide her with a less costly transport than the Scheme proposed by the Claimant, infringed Section 17 of the 1997 Act.
Waller LJ considered the statutory scheme. This provided for a tortfeasor to obtain a certificate in relation to certain defined benefits received or to be received over a period of 5 years from the accident. These benefits were listed in Schedule 2 of the 1997 Act. The tortfeasor was then entitled to deduct from any damages payable to the Claimant the amount shown on the certificate. The scheme did not contemplate there being any reduction against claims for future loss of mobility. Section 17 provided:-
“In assessing damages in respect of any accident, injury or disease, the amount of any listed benefits paid or likely to be paid is to be disregarded.”
Essentially what this meant was that only benefits that appeared on the CRU certificate could be deducted. The right to offset them against the Claimant’s award was exclusively defined by Section 8 of the 1997 Act, not by any common law rule of double recovery.
The Defendants had obtained a Compensation Recovery Unit certificate which stated that the amount of received benefits was NIL, even though it was common ground that the Claimant had received benefits identified in Schedule 2 of the 1997 Act. The amount received (£30,237.80) was only notified to the court in the closing submissions at trial.
The trial judge had deducted the amount of these listed benefits, but the Defendant’s counsel now conceded that this was wrong. There could be no deduction because of the wording of Section 17 of the 1997 Act.
There was then the issue of the Claimant’s claim for loss of mobility in the future i.e. outside the five year period during which the 1997 Act applied. Therefore this was not a claim, to which the provisions, which might have allowed for the obtaining a CRU certificate and a reduction of the damages by reference to that certificate applied.
The Defendant’s expert, Tessa Gough advocated the Motability Scheme, but such a scheme only applied to someone in receipt of mobility allowance. This was a benefit identified as a listed benefit in Schedule 2 of the 1997 Act.
The question was whether a ruling that the Claimant was obliged to use her mobility allowance and invest it in the Motability Scheme was the correct approach, or whether Section 17 of the 1997 Act forbade the court from making such a ruling.
Waller LJ said that Section 17 precluded an insistence that any of the benefits set out in Schedule 2 to the 1997 Act should be used in any way to mitigate loss.
Section 17 had already been construed by the House of Lords in Wisely v John Fulton (Plumbers) Ltd [2000] 1 WLR 820. In that case the Lords ruled that so far as interest was concerned, Section 17 meant that it had to be calculated by reference to a figure which ignored the fact that benefits had been received and ignored the fact that the Defendant was paying the benefits to the Secretary of State.
Prima facie a rule as to mitigation could be said to be a rule relating to the assessment of damages. Section 17 precluded an insistence that any of the benefits in Schedule 2 to the 1997 Act should be used in any way to mitigate loss.
Travelling expenses
The judge deducted 15% from the Claimant’s past earnings as travelling expenses. He made no such deduction in respect of future earnings. The Claimant argued that no such deduction should have been made. The Claimant’s counsel had objected and referred to a passage from a case Dew v National Coal Board [1988] 1 AC where it was said that there was no caselaw to suggest that travelling expenses should be deducted from a weekly wage.
Waller LJ said that the judge had not been directed to the relevant passage from this case. Even if he had been, the passage did not lay down any rule of law. The idea behind the passage in Dew had been to prevent inordinate time being spent on not very significant items. The judge’s finding would not be disturbed.
Individual items available on the NHS or from social services
The judge found that certain items would be available from the NHS or Social Services.
Section 2(4) of the Law Reform (Personal Injuries) Act 1948 provided:-
“In an action for damages for personal injuries…..there shall be disregarded, in determining the reasonableness of any expensees, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 1977….”
Waller LJ said that the question was whether on the balance of probabilities the Claimant would obtain the required services from the NHS or social services. The Defendants could not say that there was no evidence that the services would not be available from the NHS or social services. They had to prove that to the court. The Defendant’s evidence came no where near to establishing that the three items would be available to the Claimant under the regime favoured by the judge. Consequently these items should be allowed.
Cigarettes
After the injury, the Claimant began to smoke excessively and to waste some of the cigarette she was contemplating smoking. The judge had awarded a sum of cigarettes wasted in the past, but not for the cost in any increased number of cigarettes smoked. No award was made for the future.
Waller LJ said that there was something deeply unattractive in the notion that a Claimant should recover damages to cover the increase in cigarette consumption either for the past or future. Only if the medical evidence were to convince the court that the accident had caused such injury to the brain that the victim had no real choice but to increase her consumption of cigarettes, could the extra consumption be a valid head of damage.
Waller LJ said that the medical evidence did not support the submission that it was the Claimant’s brain injury which left the Claimant no choice but to increase her smoking habit. He would not disturb the judge’s award.
Receiver
The Claimant was a patient subject to the Court of Protection. The judge refused to award costs of £280,710 for the costs of her solicitor to act as a receiver, but instead awarded the sum of £30,000 to enable her mother to act.
There was no issue as to whether a receiver was needed. The issue related to whether a professional was required as a receiver. Master Lush of the Court of Protection had made his submissions.
The evidence of the Claimant’s solicitor (who was already her receiver) could not be disinterested, given that he had a direct interest in the fees that would be charged. The case had taken 14 years to come to trial and the judge was right in thinking that the solicitor was not appropriate. Master Lush had said that a professional receiver was not the only option. A professional receiver’s costs were bound to exceed £3,500 plus VAT per year.
Waller LJ would not to disturb the decision of the judge to award the costs of a lay receiver.
Panel Brokers
Whether the judge was right to conclude that Panel Brokers’ fees, which would be charged by the Court of Protection on advice would be awarded by way of damages.
Waller LJ referred to the key authorities prior to the case of Wells v Wells [1999] 1 AC 345:-
In the case of Page v Plymouth Hospital NHS Trust [2004] EWHC 1154, Davis J said that it was plain from Wells v Wells that investment costs were contemplated as arising in respect of the investment advice anticipated to be obtained by a Claimant. Waller LJ said that he found Davis J’s reasoning extremely convincing. The same reasoning applied to a patient as it did to a non patient. Therefore the trial judge was correct not to award the panel brokers’ fees.
Interest
The judge took the view that there was seven years of delay, which was the fault of the Claimant’s legal representatives.
The judge rightly took the view that this should have been tried by the end of 1996. The accident occurred in 1989 but no writ was issued until limitation had practically expired. There was no explanation as to why it had taken so long to bring the matter to trial.
GEWA Central Control Unit
This Unit enables a disabled person to operate housing functions such as opening windows and doors. The judge refused to award any sum for this.
The Claimant’s injuries were such that she required 24 hour care. She probably did not have the capacity to decide for herself whether windows should be opened or not. The judge was not bound to accept the evidence of experts and his finding on this point would not be disturbed.
Cleaning
The judge had decided that the carers would do the cleaning. Waller LJ could find no support in the evidence for this, and he would allow the appeal on this item.
Driver over 25
The issue here was whether the Claimant should be allowed to hire only drivers over 25 for the purposes of the Motability Scheme. Waller LJ said that it seemed likely that the judge took the view that it was unlikely that carers between the ages of 17 and 25 would be looking after the Claimant at all. The present members of the existing care team were over 25 and the serious condition of the Claimant meant that she was likely to require experienced carers. Therefore the judge’s assessment on this aspect should not be disturbed.
Lord Justice Buxton said in relation to the panel brokers’ fees and the recovery of costs of investment, he felt that the patient Claimant was in a different position to that of the non-patient Claimant. Because of what the tortfeasor had done to him, he had no control over his affairs, but was in the hands of the Court of Protection. The Court of Protection fees and brokers’ fees were inescapable and the patient Claimant could not choose his agent.
In relation to interest, Lord Buxton made the point that in the post CPR era, the Defendant was not permitted simply to stand by, but should progress the case or secure its dismissal.
Lord Justice Scott-Baker said that in relation to the panel brokers’ fees, he was convinced by the reasoning of Waller LJ.
QUANTUM
FACTS:-
The Claimant suffered very serious injuries in a road traffic accident. Contributory negligence was set at 40% by the Court of Appeal. On the issue of quanturm, the trial judge awarded the sum of £1,499,268.13, which sum was appealed to the Court of Appeal.
HELD:-
Lord Justice Waller described the various issues for appeal:-
The cost of a care regime and accommodation
The first sub issue was whether the judge was right in finding that the Claimant needed a privately funded regime as opposed to a top up to the regime being provided by Social Services. The second sub issue was whether (if a private care regime was required) the judge was right to take the Defendant’s nursing expert’s (Tessa Gough) advice with some adjustment, or whether significantly greater adjustments were required.
The Kemsley Unit Issue
The Claimant was admitted to this unit shortly before trial. The Defendant applied to adjourn the trial as the 12 week assessment period had not been completed. This application was refused. The trial judge found that assessment at the unit would be appropriate and that it was likely that the Claimant would undergo a further nine months treatment. However on appeal the Defendant’s counsel was constrained to accept that the Defendant should pay for the cost of the assessment. Waller LJ said that the finding in relation to the nine months’ treatment was also unassailable. This aspect of the appeal would be dismissed.
Care Regime
The judge took the view that there should be a change in the Claimant’s care regime and that this fell to be funded by the Defendant, not social services. However he accepted the figures put forward by the Defendant’s expert with some modification. Waller LJ said that it would not be right to reconsider the judge’s finding of an alternative care regime in the Court of Appeal. However the Claimant’s counsel had attacked the judge’s reliance on Appendix C of Tessa Gough’s (the Defendant’s nursing expert) report. Waller LJ said that the problem here was that Tessa Gough and two carers had not been examined on this issue, and the submissions now made were not supported by any evidence. In reality, those advising the Claimant had concentrated their arguments on seeking to persuade the judge that he should adopt the private care regime of another nursing expert, Maggie Sargent. They did not challenge Tessa Gough’s figures if that failed. It was too late to do so now.
Benefits referred to in the second Schedule of the Social Security (Recovery of Benefits) Act 1997
In relation to income support, the Defendant’s solicitor had conceded that the judge should not have deducted £30,237.80 from the Claimant’s past earnings. As regards mobility allowance, the issue was whether the judge’s finding that the Claimant would be obliged to use that allowance to partake in the Mobility Scheme in order to provide herself with transport, which would provide her with a less costly transport than the Scheme proposed by the Claimant, infringed Section 17 of the 1997 Act.
Waller LJ considered the statutory scheme. This provided for a tortfeasor to obtain a certificate in relation to certain defined benefits received or to be received over a period of 5 years from the accident. These benefits were listed in Schedule 2 of the 1997 Act. The tortfeasor was then entitled to deduct from any damages payable to the Claimant the amount shown on the certificate. The scheme did not contemplate there being any reduction against claims for future loss of mobility. Section 17 provided:-
“In assessing damages in respect of any accident, injury or disease, the amount of any listed benefits paid or likely to be paid is to be disregarded.”
Essentially what this meant was that only benefits that appeared on the CRU certificate could be deducted. The right to offset them against the Claimant’s award was exclusively defined by Section 8 of the 1997 Act, not by any common law rule of double recovery.
The Defendants had obtained a Compensation Recovery Unit certificate which stated that the amount of received benefits was NIL, even though it was common ground that the Claimant had received benefits identified in Schedule 2 of the 1997 Act. The amount received (£30,237.80) was only notified to the court in the closing submissions at trial.
The trial judge had deducted the amount of these listed benefits, but the Defendant’s counsel now conceded that this was wrong. There could be no deduction because of the wording of Section 17 of the 1997 Act.
There was then the issue of the Claimant’s claim for loss of mobility in the future i.e. outside the five year period during which the 1997 Act applied. Therefore this was not a claim, to which the provisions, which might have allowed for the obtaining a CRU certificate and a reduction of the damages by reference to that certificate applied.
The Defendant’s expert, Tessa Gough advocated the Motability Scheme, but such a scheme only applied to someone in receipt of mobility allowance. This was a benefit identified as a listed benefit in Schedule 2 of the 1997 Act.
The question was whether a ruling that the Claimant was obliged to use her mobility allowance and invest it in the Motability Scheme was the correct approach, or whether Section 17 of the 1997 Act forbade the court from making such a ruling.
Waller LJ said that Section 17 precluded an insistence that any of the benefits set out in Schedule 2 to the 1997 Act should be used in any way to mitigate loss.
Section 17 had already been construed by the House of Lords in Wisely v John Fulton (Plumbers) Ltd [2000] 1 WLR 820. In that case the Lords ruled that so far as interest was concerned, Section 17 meant that it had to be calculated by reference to a figure which ignored the fact that benefits had been received and ignored the fact that the Defendant was paying the benefits to the Secretary of State.
Prima facie a rule as to mitigation could be said to be a rule relating to the assessment of damages. Section 17 precluded an insistence that any of the benefits in Schedule 2 to the 1997 Act should be used in any way to mitigate loss.
Travelling expenses
The judge deducted 15% from the Claimant’s past earnings as travelling expenses. He made no such deduction in respect of future earnings. The Claimant argued that no such deduction should have been made. The Claimant’s counsel had objected and referred to a passage from a case Dew v National Coal Board [1988] 1 AC where it was said that there was no caselaw to suggest that travelling expenses should be deducted from a weekly wage.
Waller LJ said that the judge had not been directed to the relevant passage from this case. Even if he had been, the passage did not lay down any rule of law. The idea behind the passage in Dew had been to prevent inordinate time being spent on not very significant items. The judge’s finding would not be disturbed.
Individual items available on the NHS or from social services
The judge found that certain items would be available from the NHS or Social Services.
Section 2(4) of the Law Reform (Personal Injuries) Act 1948 provided:-
“In an action for damages for personal injuries…..there shall be disregarded, in determining the reasonableness of any expensees, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 1977….”
Waller LJ said that the question was whether on the balance of probabilities the Claimant would obtain the required services from the NHS or social services. The Defendants could not say that there was no evidence that the services would not be available from the NHS or social services. They had to prove that to the court. The Defendant’s evidence came no where near to establishing that the three items would be available to the Claimant under the regime favoured by the judge. Consequently these items should be allowed.
Cigarettes
After the injury, the Claimant began to smoke excessively and to waste some of the cigarette she was contemplating smoking. The judge had awarded a sum of cigarettes wasted in the past, but not for the cost in any increased number of cigarettes smoked. No award was made for the future.
Waller LJ said that there was something deeply unattractive in the notion that a Claimant should recover damages to cover the increase in cigarette consumption either for the past or future. Only if the medical evidence were to convince the court that the accident had caused such injury to the brain that the victim had no real choice but to increase her consumption of cigarettes, could the extra consumption be a valid head of damage.
Waller LJ said that the medical evidence did not support the submission that it was the Claimant’s brain injury which left the Claimant no choice but to increase her smoking habit. He would not disturb the judge’s award.
Receiver
The Claimant was a patient subject to the Court of Protection. The judge refused to award costs of £280,710 for the costs of her solicitor to act as a receiver, but instead awarded the sum of £30,000 to enable her mother to act.
There was no issue as to whether a receiver was needed. The issue related to whether a professional was required as a receiver. Master Lush of the Court of Protection had made his submissions.
The evidence of the Claimant’s solicitor (who was already her receiver) could not be disinterested, given that he had a direct interest in the fees that would be charged. The case had taken 14 years to come to trial and the judge was right in thinking that the solicitor was not appropriate. Master Lush had said that a professional receiver was not the only option. A professional receiver’s costs were bound to exceed £3,500 plus VAT per year.
Waller LJ would not to disturb the decision of the judge to award the costs of a lay receiver.
Panel Brokers
Whether the judge was right to conclude that Panel Brokers’ fees, which would be charged by the Court of Protection on advice would be awarded by way of damages.
Waller LJ referred to the key authorities prior to the case of Wells v Wells [1999] 1 AC 345:-
- Francis v Bostock 8th November 1985 Unreported
- Anderson v Davis [1993] PIQR Q87
In the case of Page v Plymouth Hospital NHS Trust [2004] EWHC 1154, Davis J said that it was plain from Wells v Wells that investment costs were contemplated as arising in respect of the investment advice anticipated to be obtained by a Claimant. Waller LJ said that he found Davis J’s reasoning extremely convincing. The same reasoning applied to a patient as it did to a non patient. Therefore the trial judge was correct not to award the panel brokers’ fees.
Interest
The judge took the view that there was seven years of delay, which was the fault of the Claimant’s legal representatives.
The judge rightly took the view that this should have been tried by the end of 1996. The accident occurred in 1989 but no writ was issued until limitation had practically expired. There was no explanation as to why it had taken so long to bring the matter to trial.
GEWA Central Control Unit
This Unit enables a disabled person to operate housing functions such as opening windows and doors. The judge refused to award any sum for this.
The Claimant’s injuries were such that she required 24 hour care. She probably did not have the capacity to decide for herself whether windows should be opened or not. The judge was not bound to accept the evidence of experts and his finding on this point would not be disturbed.
Cleaning
The judge had decided that the carers would do the cleaning. Waller LJ could find no support in the evidence for this, and he would allow the appeal on this item.
Driver over 25
The issue here was whether the Claimant should be allowed to hire only drivers over 25 for the purposes of the Motability Scheme. Waller LJ said that it seemed likely that the judge took the view that it was unlikely that carers between the ages of 17 and 25 would be looking after the Claimant at all. The present members of the existing care team were over 25 and the serious condition of the Claimant meant that she was likely to require experienced carers. Therefore the judge’s assessment on this aspect should not be disturbed.
Lord Justice Buxton said in relation to the panel brokers’ fees and the recovery of costs of investment, he felt that the patient Claimant was in a different position to that of the non-patient Claimant. Because of what the tortfeasor had done to him, he had no control over his affairs, but was in the hands of the Court of Protection. The Court of Protection fees and brokers’ fees were inescapable and the patient Claimant could not choose his agent.
In relation to interest, Lord Buxton made the point that in the post CPR era, the Defendant was not permitted simply to stand by, but should progress the case or secure its dismissal.
Lord Justice Scott-Baker said that in relation to the panel brokers’ fees, he was convinced by the reasoning of Waller LJ.