Dixon v Were

In assessing future losses, the court must select a realistic baseline career model and use the conventional multiplier and multiplicand approach. A percentage-chance assessment is appropriate for a distinct claim that the injury deprived the claimant of a substantial chance of exceptionally high earnings, but not for the baseline claim merely because future employment is uncertain. Discounts must reflect genuine contingencies and should not become mechanistic or speculative.

Capacity is issue-specific. An adult may have capacity to conduct litigation while lacking capacity to manage a large damages fund. The court must assess insight and understanding on the assumption that appropriate advice is available, including the ability to form a balanced view and act on that advice. In valuing care, the court should fund reasonable lifetime needs on a practical, broad-brush assessment of likely care and its uncertainties.

The claimant sought damages for severe physical and brain injuries suffered in a road traffic accident. Liability was admitted, subject to an agreed 27.5% deduction for contributory negligence. The trial concerned quantum, including future earnings, employment benefits, patient status, care, case management and related expenses.

The defendant challenged the claimant’s status as a patient for conducting the litigation and managing the damages fund. The court also had to determine the appropriate career model, whether there was a compensable chance of very high earnings, and the reasonable lifetime cost of care.

1. Future earnings. The court applied the approach summarised in Herring v Ministry of Defence [2003] EWCA Civ 528. The baseline claim required a realistic career model and conventional multiplier/multiplicand calculation. The percentage-chance approach was inappropriate for that claim, but appropriate for a separate claim based on a substantial chance of very high earnings.
2. The claimant was likely to have entered the financial-services sector, but the evidence did not establish a sufficiently real, rather than speculative, chance of exceptionally high earnings. That head of claim was therefore rejected. Employment benefits, insurance and pension losses were assessed without speculative discounts, subject to the agreed employment-contingency adjustment and avoidance of double recovery.
3. Patient status. Applying Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889, the court treated capacity as issue-specific and assessed it with appropriate advice available. The claimant lacked the necessary insight and balanced understanding to manage the damages fund. He also lacked capacity to conduct the litigation because his apparent understanding was superficial and he could not appropriately understand, instruct upon or act on advice concerning the litigation as a whole. The agreed litigation settlements therefore required court approval.
4. Care and case management. The court had to identify a fund targeted at reasonable lifetime needs, without prescribing a rigid blueprint for its use. It could take account of the probability that the fund would not be used exactly as intended and could make broad allowances for uncertainty. Applying s.2(4) of the Law Reform (Personal Injuries) Act 1948, private treatment was recoverable where its future use was probable.
5. The court preferred the evidence supporting trained support workers, substantial case management, periodic private hospital admissions, and continuing neuropsychiatric and neuropsychological care. It allowed rounded figures reflecting an average six-hour day for support workers, £17,000 per year for case management, £9,500 per year for hospital admissions, and the principal treatment costs claimed. The agreed losses and awards produced total damages of £4,183,157 before the 27.5% deduction, and £3,032,279 after it.