Hay v Konig & Anor

In assessing damages for future care, the claimant’s likely country of residence may affect the reasonable cost and available form of care, but not the nature or extent of the claimant’s needs. Where future care requirements are uncertain, the court must do its best on the available evidence to award reasonable compensation, bearing in mind that the claimant bears the burden of proving loss on the balance of probabilities. An appellate court may revise a multiplier where the trial judge’s assessment rests on an interpretation of evidence that the appellate court can properly reassess. A substantial discount may be required where the evidence indicates that support will reduce over time or will no longer be needed for particular purposes.

The claimant suffered serious brain and other injuries when struck by an uninsured driver. Liability had been apportioned 75 per cent to the driver and 25 per cent to the claimant. Gibbs J assessed the damages payable by the Motor Insurers Bureau at US$1,405,159, including US$1,204,500 for future support based on a multiplier of 22.

The claimant’s case was that he required a continuing supported mentor programme in the United States. The Motor Insurers Bureau contended that his needs could be met by an intensive rehabilitation programme followed by limited periodic supervision. The appeal challenged the assessment of future support on three grounds: the relevance of the claimant’s likely residence in the United States, the evidential basis for the level of support awarded, and the adequacy of the discount applied to the multiplier.

1. Appeal allowed in part. The first two grounds failed. The third succeeded to the limited extent that the multiplier for future support was reduced from 22 to 17, reducing the total award from US$1,513,159 to US$1,307,846.
2. The judge had correctly distinguished between the claimant’s needs and the cost and form of services available to meet them. The fact that the claimant was likely to live in Massachusetts could not affect assessment of the nature or extent of his injuries, disabilities or needs. It was, however, relevant to the reasonable cost of meeting those needs and to the care arrangements reasonably available there.
3. The judge was entitled to accept Dr Deutsch’s evidence that the claimant required a continuing and structured support system, including the mentor programme and emergency support. The evidence that the claimant had achieved periods of employment did not demonstrate that the proposed support was unsustainable, since his employment and daily life had often involved structured settings, family assistance or parental intervention.
4. The assessment of future damages in an uncertain case is necessarily impressionistic. The court must do its best on the available material to compensate the claimant for future costs reasonably incurred, but the claimant bears the burden of proving the loss on the balance of probabilities. The approach in Goldfinch v Scannell [1993] PIQR 143, involving an award based on care certainly required with an allowance for contingencies, was useful in some cases but was not a general principle governing all uncertain care claims.
5. The trial judge had made an insufficient discount. The evidence indicated that support might be reduced after 12 to 18 months, that periods of approximately two hours’ daily care might be sufficient, and that employment-related support would cease on retirement. A substantial reduction was therefore required. The court reduced the multiplier to 17 years.

• Court of Appeal (Civil Division): Appeal from the assessment by Gibbs J dated 10 November 2000. The appeal succeeded only on the adequacy of the multiplier discount, and the total award was reduced.