Loss Of Earnings Compensation Claim

Simon Nicholas Dixon (By His Mother & Litigation Friend Pauline Dixon) V John Were (2004)

[2004] EWHC 2273 (QB)

QBD (Gross J) 26/10/2004

Personal Injury - Damages

Measure Of Damages : Future Loss : Loss Of Earnings : Care Expenses : Financial Management : Mental Incapacity : Loss Of Benefits : Career Projection For University Student : Mental Capacity For Conduct Of Litigation And Fund Management : Loss Of Chance : Remuneration Package Benefits : Patients : Personality Disorders : Psychiatric Affective Disorders : Brain Damage : Case Management : Motor Vehicle Accidents : Passengers

A university student who had been rendered unemployable due to a personality disorder developed from injuries he sustained in a road accident was awarded loss of earnings on the basis that he would have secured a good job in the financial services sector. As it was overwhelmingly likely that his employment would have included a range of additional benefits, damages for the loss of those benefits would not be reduced for a percentage chance that he would not have received those benefits.

The claimant (D) sought damages for personal injuries and related losses sustained following a road accident. The defendant (W) had been the driver of a vehicle and D a passenger when it had crashed into a tree. D had been a 20 year old university student at the time of the accident. He had suffered severe physical injuries and had sustained brain damage resulting in lasting mental health consequences, in particular an organic personality disorder that rendered him unemployable. D had been made a patient and a litigation friend appointed.

Liability had been admitted subject to an agreed deduction of 27.5 per cent for contributory negligence. D had made a baseline claim for loss of earnings as an accountant, as well as a claim for loss of remuneration package benefits. D submitted that there was a substantial chance that he could have achieved earnings significantly higher than the top of the range of the baseline claim.

W submitted D's claims for remuneration package benefits should be reduced to allow for a percentage chance that he would not have received those benefits and that D did not need to be a patient and therefore could not support his claims for the costs of the Court of Protection and the Receiver and the costs of managing the fund that he was to receive by way of damages.

HELD: (1) The "percentage chance approach"

(i) should not be adopted when considering D's baseline claim for future loss of earnings;

(ii) should be adopted when considering the claim for loss of a chance of very high earnings;

(iii) could be adopted when considering loss of remuneration package benefits, Herring v Ministry of Defence (2003) EWCA Civ 528 , (2004)

(1) All ER 44 applied. D's likely career path would have led to employment in the financial services sector, at least initially in London. D's attractive personality and charm, his background and contacts would likely have secured entry into a good job at above national average figures. Staged future multiplicands would reflect the likelihood that D would have achieved a relatively high salary early but that rapid progression from a high base figure could not be assumed. The agreed multiplier of 22.99 would be reduced by multiplying it by 0.97 to reflect possible periods of unemployment.

The proposition that D lost the chance of achieving significantly higher earnings was entirely speculative, Davies v Taylor (1974) AC 207 applied. It was overwhelmingly likely that D would by now have obtained employment that gave him a car or car allowance, private health insurance, life insurance and loss of pension benefit. It was not appropriate to discount those claims for a percentage chance that D would not have received those benefits.

(2) D lacked the necessary mental capacity for the purpose of fund management and W was accordingly liable for the costs of the Court of Protection and the Receiver, Masterman-Lister v Brutton & Co (No2) (2003) EWCA Civ 70 , (2003) 1 WLR 1511 applied. D also lacked the necessary mental capacity for the conduct of the litigation.

(3) The prognosis for the improvement in D's personality disorder was bleak. The fund for D's future care was calculated on the basis that D would more likely than not accept care, which would include trained live-in care. It was unlikely that he would reject case management for any significant periods of time, but there could well be periods when he rejected support workers.

Damages assessed.
Counsel:
For the claimant: Susan Rodway QC, William Audland
For the defendant: Richard Davies QC, James Bell

Solicitors:
For the claimant: Hodge Jones & Allen
For the defendant: Greenwoods
LTL 28/10/2004 (Unreported elsewhere)
Judgment Approved
Document No. AC0100978