Clarke v Maltby

In assessing damages for traumatic brain injury, a claimant’s apparently successful employment history does not necessarily demonstrate an ability to sustain demanding work. The court must evaluate the effect of cognitive impairment over time, including fatigue and the ability to maintain performance.

Future loss of earnings may be assessed using a structured lost-chance approach where alternative career outcomes have identifiable percentage probabilities. The calculation may include a baseline earning model and percentage chances of achieving higher earning scenarios.

Residual earning capacity must reflect the less demanding employment that the claimant can realistically sustain. A further disability discount is inappropriate where the disability has already been reflected in the difference between lost and residual earning capacity.

The claimant suffered multiple physical injuries, psychiatric injury and traumatic brain injury in a road accident caused by the defendant, who admitted liability. Judgment for damages to be assessed was entered on 21 August 2008.

The principal issues were whether the claimant’s continuing cognitive, emotional and behavioural symptoms were caused by traumatic brain injury or psychiatric illness, the extent to which those symptoms impaired her ability to work as a banking solicitor and partner, and the resulting past and future loss of earnings. The court also had to assess general damages and residual earning capacity.

1. Causation and continuing symptoms. The claimant had recovered from major depressive disorder and had made substantial recovery from PTSD, with residual symptoms at a sub-clinical level. The continuing genuine cognitive, emotional and behavioural symptoms therefore could not be attributed to a continuing psychiatric condition. In the absence of another satisfactory explanation, the court preferred the evidence attributing them to traumatic brain injury.
2. Occupational capacity. The claimant’s post-accident career progression did not establish that she could sustain demanding transactional banking work at partner level. Her intelligence, motivation and ability to conceal or compensate for her difficulties had enabled apparent success, but the cumulative effects of cognitive impairment and fatigue made that level of work unsustainable. She could reasonably move to less demanding employed legal work.
3. Lost chance assessment. The approach approved in Langford v Hebran and Nynex Cable Communications [2001] PIQRQ13 was appropriate. Past and future loss were assessed by adopting a 100 per cent baseline career scenario, then adding percentage chances of achieving higher career outcomes.
4. Residual earning capacity. The claimant’s residual capacity was assessed on the basis that she could work a five-day week as an employed solicitor, earning approximately £40,000 gross annually. A further Ogden discount was inappropriate because the effect of her disability was already reflected in the difference between her lost and residual earning capacity.
5. Outcome. The court assessed general damages at £60,000. The parties were directed to agree a schedule calculating past and future loss on the basis of the court’s findings, with the appendix recording a total award of £955,399.

Liability was admitted on 15 April 2005. Judgment for damages to be assessed was entered on 21 August 2008. The present judgment assessed the claimant’s damages.