Sarwar v Ali & Anor

A court assessing damages for serious personal injury may make provisional damages where the claimant faces a measurable, non-fanciful risk of a serious disease or deterioration and the statutory discretion is otherwise satisfied. Under section 2 of the Damages Act 1996, the court has a broad discretion to modify RPI indexation for periodical payments. The assessment is fact-sensitive and must seek full compensation without over-compensation. The court may compare available indices, use different indices for different heads of loss, and consider the claimant’s needs, the accuracy and reliability of the index, and its practical workability. In this case, periodical payments were appropriate for future earnings and care. They were linked respectively to aggregate ASHE male full-time earnings at the 90th percentile and ASHE 6115 at the 90th percentile.

The claimant, aged 17 when seriously injured in an uninsured road accident, claimed damages for catastrophic spinal and brain injuries. Liability had been admitted, subject to a 25% reduction for contributory negligence. The hearing concerned quantum and the form and indexation of the award.

The court determined provisional damages, future earnings, care, transport, holidays and accommodation. It also considered whether future earnings and care should be paid as a lump sum or by periodical payments, and whether any periodical payments should be linked to RPI or an earnings-based measure.

1. Provisional damages. Section 32A of the Supreme Court Act 1981 required proof of personal injury, a measurable rather than fanciful chance of serious disease or deterioration, and an appropriate exercise of discretion. The statutory criteria were satisfied for epilepsy and syrinx, but not for heterotrophic ossification.
2. Quantum. The claimant had no residual earning capacity. His likely professional career justified a gross average multiplicand of £55,000, retirement at 68, a 7.5% pension contribution and a 10% contingency deduction. An additional 0.5 was added to the multiplier for pension loss during the claimant’s lost years. Care was assessed on a 58-week year, with eight hours’ daily double-up care and waking night care from the last anniversary before the claimant’s 47th birthday. The purchase of Purbeck Lodge was reasonable, but the hydrotherapy-pool extension was not reasonably required.
3. Indexation. Section 2(9) of the Damages Act 1996 conferred a wide discretion. Exceptional circumstances were not required before RPI could be modified. The court had to seek to preserve the real value of payments while avoiding over-compensation. It could compare competing measures, adopt different measures for different heads of loss, and should consider accuracy, reliability, accessibility, continuity and practical workability.
4. The appropriate measure for future earnings was aggregate ASHE for male full-time employees at the 90th percentile. For future care and case management it was ASHE 6115 at the 90th percentile. RPI would risk substantial under-compensation for both heads.
5. Applying CPR 41.7, periodical payments best met the claimant’s needs for future earnings and care despite his preference for a lump sum. The remaining damages were awarded as a lump sum. The total net lump sum was £1,216,329, with periodical payments for earnings and care calculated after the 25% reduction for contributory negligence.