Willbye v Gibbons

An appellate court should not alter a first-instance award for pain, suffering and loss of amenity unless it is manifestly too high or too low, or an error of principle is shown. Gratuitous-care damages require a flexible global assessment. Commercial rates may guide the valuation, but they do not impose a rigid formula.

Future needs arising from uncertain events, such as having children or living alone, should ordinarily be reflected in one global care award rather than separately quantified heads. Necessary receiver costs remain recoverable, although economical alternatives may be considered.

This was the claimant’s appeal and the defendant’s cross-appeal from a disposal hearing before Ms Recorder Harman in Nottingham County Court. The claimant had suffered serious brain and orthopaedic injuries after being struck by the defendant’s car as a child. Liability had been apportioned 75% to the defendant.

The challenges concerned the award for pain, suffering and loss of amenity, past and future care, loss of congenial employment, accommodation adaptations and ongoing Court of Protection costs. The central issues were how uncertain future care needs should be assessed and whether the Recorder had applied permissible principles when valuing gratuitous care and receivership costs.

Disposition. The claimant’s appeal and the defendant’s cross-appeal were each successful in part. The overall damages were reduced by £14,950.64.

1. The award of £80,000 for pain, suffering and loss of amenity was within the range open to the Recorder. Applying Housecroft v Burnett [1986] 1 All E R 332, there was no manifest undervaluation and no demonstrated error of principle.
2. For gratuitous care, the court must assess reasonable and proper care and enable reasonable recompense to the relative. The commercial rate is a useful starting point and a ceiling, but the assessment is global and flexible. The examples in Nash v Southmead Health Authority [1993] PIQR Q156 and Fairhurst v St Helen’s and Knowsley Health Authority [1995] PIQR Q1 did not create a tariff. The approaches in Hunt v Severs [1994] 2 AC 350, Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1657 and Newman v Foulkes [2002] EWCA Civ 591 supported a case-sensitive assessment. The 25% reduction in the past-care award was permissible.
3. Future care should be assessed as a single global fund where its extent and timing depend on uncertain contingencies. Possible additional needs if the claimant had children, lived alone or required holiday companionship were to be taken into account in the overall award, rather than as separate heads, to avoid duplication and awards for contingencies that might never arise. The separate awards of £45,000 and £60,000 were set aside and the future-care award was increased to £181,129.60.
4. The award for loss of congenial employment was reduced from £15,000 to £5,000. The head compensated for disappointment in being unable to pursue a desired career and had to remain proportionate where the claimant had never embarked on that career and financial loss was otherwise compensated.
5. The claim for ground-floor bungalow accommodation was rejected because it did not reflect the claimant’s actual needs and choices. An allowance of £10,000 was appropriate for reasonable adaptations, including adaptations that might be required after a future move.
6. Under Cassel v Riverside Health Authority [1994] PIQR Q168, necessary receiver costs were recoverable as damages. Although it was uneconomic for a relatively small fund to bear substantial professional costs, the existing award remained recoverable in the absence of evidence of another workable arrangement. The court suggested that less costly options could be considered.

The claimant was ordered to repay the reduction to the respondent’s solicitors by 14 May 2003, to pay the respondent’s costs, and to have her costs assessed in accordance with the Civil Legal Aid (General) Regulations 1989.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 372, the claimant’s appeal and the defendant’s cross-appeal were each allowed in part, with the damages reduced by £14,950.64.
2. Nottingham County Court: Ms Recorder Harman gave judgment on 22 April 2002 and made a further order after a hearing on 12 June 2002. Both parties were given permission to appeal.