West Law Report

ROWE v DOLMAN

Posted in Westlaw Reports by mrkooenglish on August 1, 2008

Court of Appeal (Civil Division) Lord Phillips of Worth Matravers CJ, May, Hallett LJJ July 23, 2008

Last Updated: 8:57PM BST 30 Jul 2008

Damages – Life expectancy – Lump sum payments – Periodical payments -Assessment of correct life expectancy

FACTS

The appellant (D) appealed against a decision on the life expectancy of the respondent (R) and an award of a lump sum made when assessing damages for personal injury. R had been knocked down by D whilst using a pedestrian crossing. R, who suffered brain and spine injuries, was left severely disabled, was confined to a wheelchair and was entirely dependent on others. It was agreed that D was 80 per cent liable. At the hearing to assess damages, the only issues were R’s life expectancy and whether to award a lump sum or periodical payments. Three experts gave evidence of a life expectancy figure of between 15 and 18 years and one expert (H) gave a figure of three to five years. The judge ruled that life expectancy was 15 years, and held that H was unable to explain how he reached his figures and was overly pessimistic. The judge further ordered a lump sum payment rather than periodical payments. D contended that (1) the judge’s decision on life expectancy was unreasoned; (2) the judge failed to have sufficient regard to an equity release scheme to release money from R’s property and, if he had, he might have ordered periodical payments.

ISSUES

(i) Whether the judge’s decision on life expectancy was unreasoned.

(ii) Whether the judge failed to have sufficient regard to an equity release scheme to release money from R’s property.

HELD (appeal dismissed)

(1) The judge’s decision on life expectancy was a finding of fact based on, and justified by, his acceptance of the evidence of three experts. H was unable to show how he reached the figure of three to five years and the judge was entitled to disregard his evidence.

(2) The award of a lump sum was not based on any error of law. If an award of periodical payments had been made it would have been insufficient to cover R’s care costs. On the evidence, equity release would only cover the shortfall of the care costs for a period of approximately three years. In those circumstances, it was perfectly rational to opt for a lump sum, which had the prospect of keeping R in his home for approximately 10 years.

Timothy Horlock QC (instructed by Greenwoods, Knaresborough) for the appellant. Elizabeth-Anne Gumbel QC and Henry Witcomb (instructed by Irwin Mitchell) for the respondent.

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