Abbs v Somerfield Plc

In assessing damages for personal injury, the court must evaluate the claimant’s actual disability, pain, recovery period and future risks against the appropriate damages bracket. A claimant’s failure to seek alternative employment will not necessarily amount to a failure to mitigate loss. The court must consider the claimant’s physical and psychological capacity, skills, motivation, prospects of retraining, and the availability and suitability of work. Where these matters show no realistic prospect of suitable employment, the loss may be recovered in full or in the proportion established by the evidence.

The defendant admitted liability for a road traffic accident in which the claimant suffered serious fractures and dislocation of the right hip. Judgment had previously been entered for the claimant, with quantum to be assessed. The trial concerned general damages, future hip replacement surgery, loss of earnings and mitigation, care, assistance, equipment, holidays and interest.

The principal dispute was whether the claimant, a self-employed plumber aged 56 at the accident, should have obtained alternative sedentary or supervisory employment after his injury, and the extent to which future losses and care-related expenses were reasonably foreseeable.

Judgment for the claimant on the assessed quantum.

1. The claimant’s hip injury fell within the severe category in the Judicial Studies Board Guidelines. Its complex reconstruction, continuing pain, permanent restriction of mobility and significant prospect of hip replacement justified an award of £30,000 for pain, suffering and loss of amenity. Hamley v Leicestershire County Council was distinguished because it involved materially less serious injury, no complex reconstructive surgery and only a 10 per cent prospect of further surgery.
2. The medical evidence established an 80 per cent probability of a hip replacement in about ten years. The future operation and associated care costs were therefore assessed on that basis. The claimant’s further claim for a second replacement was unsupported and was rejected.
3. Causation, mitigation and employment opportunities were closely connected. The relevant assessment included the claimant’s capabilities and aptitude, employment history and future prospects, motivation and attitudes, retraining prospects, and the availability of suitable work. Although physically capable of light desk, office or supervisory work in principle, the claimant had no realistic prospect of acquiring the required computer or vocational skills or obtaining suitable employment, having regard to his age, disability, entrenched working preferences, psychological difficulties, pain and the evidence about available jobs. His refusal to seek alternative employment was therefore reasonable and did not reduce the recoverable loss.
4. The claimant recovered all agreed past loss of earnings and one half of the agreed future loss to age 65, reflecting the likely reduction in his uninjured earnings. No earnings loss was established after age 65.
5. Claims for care, gardening, decorating, window cleaning, equipment, additional holiday travel costs and Glucosamine were allowed to the extent proved and reasonably necessary. The claim for future handyman costs failed for want of proof. The parties were directed to agree the appropriate interest.

The judgment was a first-instance assessment of quantum following an earlier judgment for the claimant on liability and an order that damages be determined. No appellate decision is stated.