Barry v Ablerex Construction (Midlands) Ltd

Courts applying the discount-rate guidance in Wells v Wells should use the prescribed rate for a significant period, unless circumstances particular to the case justify adjustment. The rate should not be changed merely because investment returns have fluctuated. Certainty in settlement and avoidance of extensive economic evidence are important considerations pending a rate being set under the Damages Act 1996.

In assessing care damages for a severely brain-injured claimant, the court must address the reality of the claimant’s needs. Care cannot be reduced to a mathematical calculation of formal tasks where continuous supervision, motivation, stimulation, safety and protection against deterioration are required.

The claimant suffered catastrophic brain and multiple physical injuries in a construction accident. Liability was agreed at 90 per cent in his favour. The High Court assessed damages on a full-liability basis at £1,392,503.70 and entered judgment for £1,235,253.30.

The defendant appealed against the discount rate used to calculate future losses and against the assessment of past and future care. The High Court had used a 2 per cent discount rate rather than the 3 per cent guidance in Wells v Wells, and had allowed for substantial continuing supervision and support at home.

1. Discount rate. The appeal was allowed on the discount-rate issue. Wells v Wells provided guidance intended to operate for a significant period, although it was not an immutable principle. The Court of Appeal’s decision in Warren v Northern General Hospital Trust established that the court could not substitute a 2 per cent rate for the 3 per cent rate before the Lord Chancellor set a rate under the Damages Act 1996. The reduction in investment returns was not, by itself, a sufficient economic change. Certainty and the avoidance of costly expert evidence supported retaining the guideline.
2. The future-loss multiplier was therefore reduced from 18 years to 16 years. The future-care multiplier was reduced from 27 years to 22 years, with the long-term period reduced from 14 years to nine years. The Headway-cost multiplier was reduced from 27 years to 22 years.
3. Care assessment. The challenge to the care award failed. The judge was entitled to prefer the claimant’s factual evidence and the supporting expert evidence, while recognising weaknesses in some reports. The evidence established that the claimant required continuing supervision, prompting, motivation and protection, including because of epilepsy, medication requirements, impaired judgment, vulnerability and the risk of deterioration.
4. In such a case, care cannot be assessed solely by counting hours of formal assistance. The assessment must reflect the claimant’s actual quality of life and the need for reliable support throughout the day and night. The findings that full-time support was necessary were findings of fact with which there was no proper basis to interfere.
5. The appeal was allowed in part. The agreed judgment figure was to be lodged, and the specified costs order was made. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): appeal allowed in part. The discount rate and consequent multipliers were adjusted, but the care assessment was upheld.
2. High Court, Queen’s Bench Division: Mr Justice Latham assessed damages on a full-liability basis and entered judgment reflecting the agreed 90 per cent/10 per cent apportionment.