West Law Report

TRAIN & SONS LTD v FLETCHER

Posted in Measure of damages, Westlaw Reports by mrkooenglish on May 15, 2008

Last Updated: 11:45PM BST 14/05/2008
Court of Appeal (Civil Division) Sir Mark Potter P, Hooper and Moses LJJ April 24, 2008
Court of Appeal (Civil Division)

Sir Mark Potter P, Hooper and Moses LJJ

April 24, 2008

Awards – Dependency claims – Fatal accidents – Interest rates – Calculating interest on damages for loss of financial dependency

FACTS

The appellant (T) appealed against an award of interest to the respondent (F) in respect of her fatal accident claim arising from the death of her husband (H). H had died from the effects of a malignant mesothelioma resulting from his exposure to asbestos in the course of his employment with T. The parties had agreed the amounts in respect of the past loss of financial dependency from date of death to date of trial, further loss to the date of retirement and loss after retirement. In relation to interest on damages for loss of financial dependency, it was agreed that the full rate from the date of death to trial was 14.75 per cent. The judge rejected T’s argument that the award of interest should be at half, rather than the full, rate and limited to the past loss of financial dependency. The judge made an award of interest from the date of death to date of trial upon the whole of the damages claim including future loss. T argued that the judge was bound by the decision of the House of Lords in Cookson v Knowles [1979] AC 556 and so should have awarded interest only on that part of the loss of dependency that related to the period between death and trial, and, in departing from that case, the judge had gone outside the scope of his statutory discretion. F submitted that the observations in Cookson in relation to the award of interest on damages for loss of financial dependency constituted a guideline, which was neither a rule of law nor a binding principle but a rule of practice that was open to the court to revise. F argued that the application of the guidelines in Cookson could lead to under-compensation where a multiplier calculated as at the date of death was used to include both pre-trial and post-trial losses.

ISSUE

Whether the judge was bound by the decision of the House of Lords in Cookson v Knowles [1979] AC 556.

HELD (appeal allowed)

(1) The judge was bound to follow the guidelines in Cookson, which left no room for doubt that the nature of the award of that part of the damages claim that related to post-trial losses was a claim for future loss upon which an award of interest was inappropriate. Furthermore, an award of more than half the short-term interest rate on the total pre-trial loss led to over-compensation. To depart from the method of calculation prescribed in respect of the award of interest in Cookson would be to depart from the clearly stated principle underlying and integral to it. With regard to the multiplier, it was clear that in a fatal accident case the multiplier had to be selected at the date of death, Cookson and Graham v Dodds [1983] 1 WLR 808 applied, Wells v Wells [1999] 1 AC 345 considered.

(2) The alteration of the guidelines in Cookson was not a course properly open to their lordships’ court. The appropriate forum for such reconsideration was the House of Lords.

Patrick Limb QC (instructed by DWF, Manchester) for the appellant. Peter Cowan (instructed by Thompsons) for the respondent.

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Shit happens

Posted in cause of action, Measure of damages by mrkooenglish on May 14, 2008

Professor Slapper explains what kind of accidents can be compensated:

In 1993, the Court of Appeal ruled in a case about an assistant nurse who had been injured when she bashed into a bedside locker at Winwick hospital in Warrington. Lord Justice Hoffmann said that just because she was injured in a bad accident while on her employer’s premises didn’t mean she would automatically win. She had to show that the accident was caused by the fault of the hospital. Hoffmann said: “Not every accident is somebody’s fault”, adding, “In my judgment there was no evidence to show that the hospital’s arrangement of the furniture was negligent.”

Supervening event effect

From The TimesMay 14, 2008

Supervening event effect
Whitehead and Another v Hibbert Pownall & Newton (a Firm) in the Court of Appeal
Court of Appeal

Published May 14, 2008

Whitehead and Another v Hibbert Pownall & Newton (a Firm)

Before Lord Justice Laws, Lord Justice Rix and Lord Justice Rimer

Judgment April 4, 2008

Where solicitors had negligently failed to prosecute a claim for damages for clinical negligence on behalf of a mother in respect of future losses for a wrongful birth, those losses were curtailed by the death of the mother; the solicitors were not liable in a subsequent claim for professional negligence brought on behalf of the mother’s estate for what amounted to a windfall in that, had her claim been brought to a successful conclusion before her death, the recoverable damages would have not have been curtailed by her death but would have extended to cover the costs of care into the future.

The Court of Appeal so held allowing the appeal of the defendant, Hibbert Pownall & Newton, formerly a firm of solicitors in Ashton-under-Lyne, and dismissing the cross-appeal of the first claimant, Eric Whitehead, suing on his own behalf and as administrator of the estate of Paula McLeish, deceased, from Mr Justice Griffith Williams who, on May 9, 2007, awarded damages to Mr Whitehead in his capacity as administrator, and dismissed the claim in his personal capacity.

Mr Bernard Livesey, QC and Mr Michael Harrison for the solicitors; Mr Gordon Bebb, QC and Mr James Counsell for Mr Whitehead.

LORD JUSTICE LAWS said that the Court of Appeal in Charles v Hugh James Jones & Jenkins ([2000] 1 WLR 1278, 1290) left open the question what should be done when, after the date of the notional trial, some entirely new event supervened which, if taken into account in the later professional negligence claim, would have enlarged or lowered the damages in comparison with the award which the judge would have made in the original action.

That further question had arisen in the present case. It was important not to take too narrow a view of the guidance afforded by the principle restitutio in integrum so as to leave out of account events relevant to the ascertainment of just compensation, on the ground only that they happened since the notional original trial and so were by definition unknowable at that time.

Lord Justice Rix delivered a judgment concurring in the result; Lord Justice Rimer delivered a concurring judgment.

Solicitors: Davies Arnold Cooper; Donns LLP, Manchester.

JONES v ROYAL DEVON & EXETER NHS FOUNDATION TRUST

Posted in Clinical negligence, Measure of damages, Psychiatric harm, Westlaw Reports by mrkooenglish on May 2, 2008

Last updated: 7:12 PM BST 09/04/2008
Queen’s Bench Division
King J
March 20, 2008

Clinical negligence – Measure of damages – Psychiatric harm – Death of newborn baby – Prolonged pathological grief reaction – Recoverable damages – Fatal Accidents Act 1976 – s. 3(1) Fatal Accidents Act 1976

FACTS

The court was required to determine the quantum of damages to be awarded to the claimant (J) in respect of her claim for damages for bereavement and psychiatric injuries with consequential loss arising from the death of her daughter (B) through the admitted negligence of the defendant NHS trust (D). B had suffered from hypoxic ischemic encephalopathy at birth, which meant that she could only survive on life support and the outlook for her was hopeless. The life support was withdrawn the day after B’s birth resulting in her death. A coroner’s inquest into B’s death did not begin until two years afterwards and D did not admit liability for B’s death until three years after it occurred. The medical experts jointly agreed that J suffered from an adjustment disorder that manifested itself through a number of symptoms that included sleeping disorders, loss of concentration and anxiety. J contended that she was entitled to damages for (1) psychiatric injury she had suffered through B’s death and the prolonged investigation into that death; (2) counselling sessions and other non-medical therapies that she had completed; (3) the cost of a wake following B’s death.

ISSUES

(1) Whether J was entitled to damages for psychiatric injury she had suffered through B’s death and the prolonged investigation into that death.

(2) Whether J was entitled to counselling sessions and other non-medical therapies that she had completed.

(3) Whether J was entitled to the cost of a wake following B’s death.

HELD (damages assessed)

(1) J suffered from the effects of a prolonged pathological grief reaction exacerbated by the effects of trauma, guilt and self-blame, and regardless of whether J’s mental health symptoms warranted a diagnostic term she continued to be affected in a negative way by her experiences. Applying the Judicial Studies Guidelines, that psychiatric injury fell within the moderately severe category and J was entitled to recover general damages of £20,000 in respect of it.

(2) There was no strict test that, for the cost of non-medical therapies to be recoverable they had to have been recommended by a medical practitioner, McMahon v Brett [2003] EWHC 2706 (QB) considered. The appropriate test was whether such treatment was reasonable, not remote and was proportionate. That assessment included a consideration of whether the alternative therapies were akin to medical expenses in that an individual had shown that he obtained positive benefit from them in the relief of his condition, whether for physical or psychological reasons. J had undoubtedly obtained real benefit from the counselling that she received from various therapists and she was entitled to damages of £2,000.

(3) J was entitled pursuant to the Fatal Accidents Act 1976 to bereavement damages of £10,000 and a further £2,763 in respect of the costs of B’s funeral and the erection of a headstone. However, the cost of a wake was not a recoverable expense within the meaning of s. 3(1) of the Act.

Simon Readhead QC (instructed by Parlett Kent, Exeter) for the claimant. Abhijeet Mukherjee (instructed by in-house solicitor) for the defendant.