A v Powys Local Health Board

In assessing damages for catastrophic personal injury, the court must identify the claimant’s reasonable needs and apply available actuarial evidence wherever possible. A claimant’s reasonable choice of treatment, care, aids or equipment is not defeated merely because a cheaper alternative would also meet the need. Future earnings should generally be assessed by an averaged multiplicand where the claimant has never worked and career prospects cannot be predicted reliably. Actuarial guidance should be used for contingencies rather than impressionistic discounts. Periodical payments require consideration under section 2 of the Damages Act 1996, but a lump sum may be appropriate where it best meets the claimant’s needs and the risk of under-compensation is limited.

Liability for injuries sustained at birth had been admitted, and judgment had been entered for damages to be assessed. The claimant suffered severe dyskinetic cerebral palsy, required lifelong care and was expected to live in Ireland. The remaining dispute concerned the assessment and form of damages, including general damages, future earnings, care, aids and equipment, accommodation, transport, and management of the award.

The court considered whether the claimant required two carers, whether a resident-carer model was lawful, how future earnings and contingencies should be assessed, and which proposed services and equipment were reasonable.

1. General damages. The claimant’s injuries were serious but did not, viewed in isolation, justify the very highest bracket in the JSB Guidelines. Her long life expectancy and retained intellect, which gave her acute insight into her disability and its social consequences, justified an award of £225,000.
2. Form of award. Section 2 of the Damages Act 1996, as amended by the Courts Act 2003, required consideration of periodical payments for future pecuniary loss. The purpose of the indexation provisions was to preserve the real value of care payments without over-compensation. In this case, the absence of a suitable Irish earnings index for carers, the claimant’s preference for a lump sum and the relatively certain life expectancy made a conventional lump sum appropriate.
3. Future earnings. Since the claimant had never worked, a single assessment based on average earnings over her working life was preferable to predictions for separate career stages. The multiplicand was adjusted to reflect her ability, family background, likely professional career and employment benefits. The retirement age was assessed at 68. Following Wells v Wells [1999] 1 A.C. 345 and Herring v Ministry of Defence [2004] 1 All ER 44, the court applied the sixth-edition Ogden guidance and allowed a 13% discount for contingencies other than mortality.
4. Care. The evidence established that the claimant’s functional mobility had already begun to decline and that her involuntary movements created material risks to her and her carers. Two carers were reasonably required throughout the day from age 18. A resident full-time carer was unlawful under the Organisation of Working Time Act 1997 because the proposed arrangement exceeded statutory daily and weekly working limits.
5. Aids and equipment. Applying Rialis v Mitchell, Sowden v Lodge [2005] 1 WLR 2129, Massey v Tameside and Glossop Acute Services NHS Trust [2007] EWHC 317 (QB) and Taylor v Chesworth and MIB [2007] EWHC 1001 (QB), the claimant was entitled to reasonable provision meeting her reasonable needs. The claimant’s proposed provision was reasonable where it met those needs, even if a cheaper alternative was also reasonable.
6. Management of the award. Investment advice, investment-management costs and accountancy costs were not recoverable as losses caused by the injury. A professional trustee or personal assistant was not justified on the evidence, although an allowance for enhanced banking services was reasonable.
7. The court assessed the damages and approved the agreed settlements. Further submissions were to be heard on the terms of the final order.

First-instance decision. Liability had been admitted before the assessment of damages.