Smith v LC Window Fashions Ltd

Damages for pecuniary loss must meet the claimant’s reasonable needs. Where professional advisers propose a reasonable care or treatment package, the defendant cannot insist on the cheapest reasonable alternative.

For future losses, the Ogden Tables must be selected according to the evidence. Table 1 is appropriate where medical evidence establishes a reduction in statistical life expectancy, rather than the claimant’s precise remaining lifespan. A reasonable accommodation choice may be recoverable where it responds materially to the consequences of the injury. Capacity to manage litigation damages is issue-specific and must be assessed under the Mental Capacity Act 2005.

The claimant suffered severe traumatic brain injury in an accident at the defendant’s premises. Liability was admitted. The trial concerned causation and quantum, principally future earnings, care and care management, accommodation, and the claimant’s capacity to manage his financial affairs.

The claimant sought damages for a substantial ongoing care package, care management, a move to new accommodation, future earnings and administration of his award. The defendant challenged the reasonableness and necessity of those claims and contended that the claimant retained financial capacity.

1. Reasonable needs and care. The governing question was what was required to meet the claimant’s reasonable needs. Applying Rialis v Mitchell, the court had to consider first whether the claimant’s proposed care and support package was reasonable. It did not have to approve the least-cost option where the proposed option was itself reasonable. The claimant’s severe cognitive and behavioural impairments, the successful effect of the existing support regime, the need to protect his quality of life, and the professional evidence justified thirty hours’ weekly support, ninety-one hours’ annual care management, short United Kingdom respite breaks and appropriate back-up and training.
2. Life multiplier. Table 1 of the Ogden Tables was appropriate. The medical evidence established that the claimant’s statistical life expectancy had been shortened by 6.5 years, but did not determine exactly how long he would live. Table 28 would assume a fixed period and risk an excessive multiplier.
3. Earnings and accommodation. The claimant recovered full past earnings loss and future earnings loss assessed on the basis that he would have worked to age 65, subject to the relevant contingencies. The purchase of the new bungalow was reasonable and sufficiently attributable to the injury because it provided psychologically beneficial space and reduced stress.
4. Capacity. Under sections 2 and 3(1) of the Mental Capacity Act 2005, capacity had to be assessed in relation to the particular decisions. The claimant could make ordinary financial decisions, but lacked capacity to make decisions about the damages arising from the litigation. The burden of proving incapacity was discharged.
5. Disposition. Judgment was given for the claimant, including £100,000 general damages and the assessed pecuniary losses and future costs. A contingency sum of £20,000 was allowed for possible marital breakdown, and provision was made for Court of Protection administration.