Patel v Wright & Anor

In assessing damages for catastrophic personal injury, the court must make the best estimate reasonably available of the claimant’s life expectancy. Clinical and statistical evidence must be evaluated against the claimant’s actual abilities and disabilities, and material errors in the underlying comparisons may reduce its weight. Future losses should ordinarily be calculated using a multiplicand based on prices current at trial. The court should not speculate about future price reductions without supporting evidence. Where future medical treatment is claimed, recovery depends on whether the treatment is probable, rather than merely possible. Different future events may require separate probability assessments.

The claimant suffered severe permanent brain injuries in an accident at work. Liability had been admitted subject to a 25 per cent reduction for contributory negligence, leaving damages to be assessed. Most heads of loss had been agreed, but disputes remained concerning life expectancy, care and case management, assisted conception and video telephone charges.

The court had to determine the appropriate life expectancy and multiplier, the reasonable care package, whether treatment to assist conception should be allowed for one or two children, and the appropriate annual allowance for telephone charges.

1. Life expectancy. The court rejected the claimant’s proposed life expectancy as too optimistic. The claimant’s expert had materially misunderstood and misapplied the Harrison-Felix study, including the significance of the claimant’s Disability Rating Scale and the severity and age profile of the study cohort. The defendants’ evidence also required adjustment because it failed fully to allow for the claimant’s improved, though limited and supervised, mobility.
2. The court made its best estimate in the light of the totality of the clinical and statistical evidence and assessed life expectancy to age 70. Applying Ogden Table 28, fifth edition, at a 2.5 per cent discount rate, the multiplier was 23.9.
3. Care and case management. The reasonable care package comprised 16 hours’ waking care and 8 hours’ sleeping care daily. The Team Leader’s 20 hours per week included 12 hours of supervisory work and 8 hours of hands-on care. Two months, rather than three, of 24-hour waking care was allowed after discharge from the transitional living unit. No additional five hours per month for case management during the first year at home was allowed.
4. Assisted conception. The court found it probable that the claimant and his wife would undertake treatment directed to having one child. A second cycle was too remote and depended on contingencies arising after the first cycle. The award was therefore limited to the agreed reasonable figure of £17,500 for one child.
5. Video telephone charges. Following Cooke v United Bristol Healthcare NHS Trust [2004] 1 WLR 251, the annual multiplicand was fixed by reference to current prices. In the absence of evidence that future charges would fall, the court declined to speculate and allowed £633.33 per annum.
6. All sums were subject to the agreed 25 per cent reduction for contributory negligence. The parties were to translate the rulings into agreed figures for approval.

This was a first-instance assessment of damages. Liability had previously been compromised before Mr Justice Hughes, subject to a 25 per cent reduction for contributory negligence.