Doyle v Wallace

In assessing damages for future loss, the court must distinguish between causation and the valuation of a lost chance. Where loss depends on the hypothetical response of a third party, a substantial chance of that response may be valued even though it was less than probable. A judge may reflect that chance by applying a percentage to the relevant loss.

Future earnings must also reflect the duration for which each proposed career path would probably have continued. Awards for family care and case management must be grounded in evidence, proportionate to actual need and, where appropriate, reduced to reflect diminishing need over time.

The claimant, who had suffered brain damage in a road traffic accident, appealed against a High Court assessment of damages. The appeal challenged awards for special damage, past and future loss of earnings, family care, accommodation, rehabilitation and case management. The defendant cross-appealed on the discount rate.

The Court of Appeal determined the issues which it considered unlikely to be affected by pending appeals in Wells v Wells and related cases. It reduced the awards for past loss of earnings, future loss of earnings and future case management, while leaving other determined heads undisturbed. The remaining issues and the cross-appeal were deferred.

1. Disposition. The court upheld the awards for special damage, family past care, travelling expenses, accommodation and future rehabilitation. It reduced past loss of earnings to £34,955, future loss of earnings to £167,996 and future case-management costs to £80,000. The determined awards were therefore reduced by £95,822 before the one-third deduction for contributory negligence. Grounds 6, 7 and 12, concerning pension rights, future care and attendance, and future investment services, together with the cross-appeal on the discount rate, were deferred. No order was drawn.
2. Past loss and lost chances. The distinction in Davis v Taylor between proof of a past event and valuation of a future chance was applicable. Hotson v East Berks HA concerned causation and liability for an existing injury, not the quantification of a chance. The claimant therefore did not have to prove that qualification and employment as a drama teacher were probable. The loss depended on the hypothetical conduct of a third party and fell within the third category identified in Allied Maples v Simmons and Simmons. A percentage assessment was an appropriate method of quantification.
3. The judge’s 50 per cent assessment was open to him on the evidence and was not an error of principle, although the arithmetic required correction. The calculation of future earnings could use the same chance-based approach, but the evidence did not justify applying a 16-year multiplier to drama-teacher earnings throughout the claimant’s working life. The court applied a 16-year multiplier to clerical earnings and a 14-year multiplier to drama-teacher earnings.
4. Care and case management. The award for family care was supported by the evidence and reflected the line of authority flowing from Hosecroft v Burnett. The case-management award was unsustainable because it greatly exceeded ordinary awards and failed to reflect the tendency of costs to be higher in the early years and diminish later. A pragmatic award of £5,000 per annum with a 16-year multiplier, producing £80,000, was sufficient.

• Court of Appeal (Civil Division): Reduced certain heads of damages, deferred the remaining issues and the cross-appeal, and directed that no order be drawn.
• High Court judgment under appeal: HH Judge Young, sitting as a deputy High Court judge, awarded £1,010,162 after the agreed one-third deduction for contributory negligence.