Burton v Kingsbury

In assessing damages for a claimant with a shortened life expectancy, the court must avoid compensating twice for mortality. Where medical experts have already made a clinical assessment of impaired life expectancy, a term-certain multiplier may be appropriate rather than a further mortality discount.

State-funded care must generally be taken into account where the claimant will receive it, but uncertainty about future funding may justify an order requiring the defendant to meet whatever proportion of periodical care payments is not state-funded. The court may award the reasonable cost of therapeutic facilities, accommodation adaptations and professional care where supported by evidence of need. Care provided by a spouse should not be assumed merely because it is occurring in practice.

The claimant suffered catastrophic spinal injuries, including C4 quadriplegia, in a road traffic accident for which the defendant admitted liability. The trial concerned the quantum of damages, including general damages, life expectancy, future care, accommodation, medical treatment, aids, assistive technology and loss of earnings.

The principal issues included the appropriate methodology and multiplier for impaired life expectancy, whether the cost of a swimming pool and related adaptations was recoverable, how existing and future state funding of care should affect the award, and whether future care should be paid by lump sum or periodical payments.

The claim succeeded. The court assessed gross damages and interest at £6,320,434.49 and net lump-sum damages at £5,531,568.93, subject to the separate periodical-payments order for future care and case management.

1. Life expectancy and multiplier. The experts’ clinical assessment compared epidemiological evidence with the claimant’s individual positive and negative factors. The court accepted a total life expectancy of 66 years. Because mortality had already been considered in that assessment, using Table 1 of the Ogden Tables again would impose a double discount. Table 28 was therefore appropriate, producing a multiplier of 25.78 for the 41-year term.
2. Future care. The court preferred a flexible team of directly employed carers, including two carers for lifting and personal care, over resident carers and reliance on the claimant’s wife. Professional night care was recoverable. Waking night care was allowed from age 50, reflecting the accepted evidence on the effect of ageing on skin condition and turning needs. Childcare was not recoverable as a head of loss.
3. State funding and periodical payments. Under section 2 of the Damages Act 1996, periodical payments were appropriate for future care and case management, but not generally for the award as a whole. The issue of indexation was stood over pending the Court of Appeal’s decision in the relevant appeals. Applying Crofton v NHS Litigation Authority, state-funded care had to be taken into account where it would be received. Because the extent and duration of future funding were uncertain, the defendant was ordered to pay whatever proportion of the annual care and case-management payments was not funded by the state.
4. Therapeutic and accommodation expenses. Hydrotherapy was supported by medical and physiotherapy evidence, distinguishing Cassel v Riverside Health Authority. The swimming pool, its adaptations and running costs were recoverable. The property purchased was reasonable, so the Roberts v Johnstone calculation applied to the £400,000 difference between the actual and counterfactual property costs.
5. Other losses. Future earnings were assessed at £16,800 annually with a multiplier of 20. The court allowed reasonable medical costs, aids, assistive technology, adaptations, family care and special damages, subject to the specific deductions and reductions stated in the judgment.