Thursday, 25 October 2012

Serious Injuries - The Search for a Governing Principle

A quick look into the courts' approach to the fundamental question of the the right approach to determining damages awards in serious injury cases with some comments on two High Court decisions in the last 18 months: Whiten and AC.

In such cases it is common for the court to be faced with two sets of proposals from the parties' respective experts. The claimant's Occupational Therapist might suggest a particular kind of wheelchair costing £9,000, the defendant's expert a different kind costing £6,000. The claimant's care expert might say that a carer is required to be present ten hours per day, the defendant's care expert advises that the claimant's needs could be met by a carer attending eight hours per day.

The basic restitutionary principle governing damages in tort is well known - the aim being to put the claimant into the position, so far as money can, which he or she would have been in but for the injury caused by the tort. But what are the limits to that? Is there a limit to the amount of money which should be awarded to make even small improvements to the injured claimant's quality of life? And where there are differing proposals to provide restitution to the claimant, both of which meet the reasonable needs of the claimant, how do the courts determine which set of proposals should be adopted?

In Heil-v-Rankin [2001] 2 QB 272 at paragraphs 22, 23 and 27 Lord Woolf in the Court of Appeal held that:

".. 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".

Yet in other cases the principle of "full compensation" has been interpreted in a way which has suggested that provided that the court is satisfied that the Claimant's proposals are reasonable then it matters not what the Defendant's proposal is. So in A-v-Powys [2007] EWHC 2996 (QB) Lloyd Jones J held:

"The basis of assessment is the test of reasonableness as stated in Rialis v Mitchell, (Court of Appeal, 6th 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 Sowden were 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), Teare J. at para. 59; Taylor v Chesworth and MIB [2007] EWHC 1001 (QB) Ramsay J. at para 84.)

So, once the claimant's proposal has been found to be reasonable, the defendant's proposal becomes irrelevant, or so that passage (and later parts of the judgment) would suggest. The question of doing justice to the defendant which was said by Lord Woolf to be relevant, seems marginalised or perhaps even ignored.

Interestingly in Rialis Stephenson LJ said "A judge must resist the temptation to make the wrongdoer pay for the best possible treatment regardless of whether the injured party will in fact receive such treatment or whether it is reasonable for him to receive less expensive treatment."  Thus the subsequent reliance on Rialis to support the approach set out in A-v-Powys is open to challenge.

In two more recent cases, High Court Judges have given different statements of the principle to be applied to such claims.

In Whiten-v-St George's Healthcare NHS Trust [2011] EWHC 2066 (QB) Mrs Justice Swift stated that "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."

The claimant's reasonable needs are to be identified but the damages awarded must take into account the requirement of proportionality (which includes the question of justice to the defendant). Did this judgment, first instance though it was, herald a return to the Heil-v-Rankin approach and away from the the A-v-Powys approach?

Well, in AC-v-Farooq and MIB [2012] EWHC 1484 (QB) King J appeared to revert to the A-v-Powys approach.

"I accept that the Claimant is entitled to damages to meet her reasonable support needs arising from her injury for the rest of her life, and as far as possible to give her the quality of life which she would have had but for the accident. I also accept the proposition that where there are a range of 'reasonable options' to meet the Claimant's needs, the question is not in the first instance whether some other provision is reasonable, but whether the provision chosen or claimed for on behalf of the Claimant is reasonable (see Rialas v Mitchell, The Times 17 July 1984, per Stephenson J at pp 24-6; Sowden v Lodge [2004] EWCA Civ 1370. [2005]1 WLR 2129). "

It might be pointed out that King J used the phrase "in the first instance" as a qualification which might have allowed a second stage consideration of whether some other provision is reasonable. However, his statement of principle does not sit easily with that of Mrs Justice Swift.

Claimant representatives will seek to persuade the court of the Rialis/Massey/Sowden/Powys statement of principle: the claimant and those acting for the claimant are entitled to choose the care, equipment etc which suits him or her. The question for the court is not whether the proposals are in the claimant's best interests. The damages are designed to achieve restitution. If the claimant's reasonable needs are identified and the choices for meeting those needs are reasonable (not excessive) and achieve restitution, then it is no answer for the defendant to point to a cheaper choice, even if that choice is also reasonable. 

Defendant representatives will emphasise the Heil and Whiten approach - there is a balance to be struck and if there are two reasonable proposals then the court should consider whether the additional cost of the claimant's proposal is proportionate to any additional benefit to the claimant from that proposal. Once a reasonable need is identified, there remains a question of the reasonable cost of meeting that need. If there are two beds which each meet the claimant's reasonable needs and one is significantly cheaper than the other, why should the defendant be ordered to pay for the more expensive one?

Whichever approach you prefer, it seems surprising to say the least, that there is no consistent formulation of such a fundamental principle.

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