Davison v Leitch

Damages for personal injury must place the claimant, so far as money can, in the position she would have occupied without the injury. Lost earnings are assessed on the balance of probabilities, rather than as a loss of a chance, and are reduced by expenditure necessarily incurred to earn them.

Childcare costs are deductible only to the extent that they were necessary to enable the claimant to work. Costs attributable to lifestyle choice are disregarded. The issue is fact-sensitive and depends on the claimant’s circumstances, working pattern and available domestic support.

Part 36 consequences remain discretionary. The court must consider all the circumstances, including the offer, timing, available information, conduct and the likely costs and personal consequences of proceeding to trial.

The claimant suffered a serious obstetric injury during the birth of her first child while under the care of the defendant consultant obstetrician. Liability was admitted before trial. The trial therefore concerned quantum only.

The principal disputes concerned past and future loss of earnings, the deduction to be made for childcare and domestic assistance, residual earning capacity, loss of congenial employment, and the consequences of the claimant’s Part 36 offer.

The court assessed the career the claimant would probably have pursued in London and Hong Kong, the effect of subsequent pregnancies and family relocations, the work she might have undertaken after the birth of her third child, and the necessary cost of childcare.

1. The claim succeeded on quantum. The court assessed the claimant’s past and future losses, residual earning capacity and loss of congenial employment. The claimant had beaten her Part 36 offer.

2. Damages are compensatory. The claimant was entitled to the earnings she would probably have received without the injury, after tax and other deductions. Consistently with Dews v National Coal Board [1988] AC 1, expenditure saved because of the injury was not deductible unless it represented expenditure necessarily incurred to earn the lost income.

3. The cost of childcare required a factual assessment. The court distinguished necessary childcare from domestic assistance adopted as a lifestyle choice. The relevant question was what had to be spent to enable the claimant to work, regardless of which spouse paid the expense. An allowance of £650 per month was made for the additional helper, but no allowance was made after 1 March 2013 because the evidence did not establish that a further helper was necessary.

4. Loss of earnings was assessed on the balance of probabilities. Difficulty in finding employment was one factor in determining when work would have begun; the claim was not assessed as a loss of a chance. The court found that the claimant would probably have obtained comparable employment after moving to Hong Kong and would have progressed within the banking sector, but that after the birth of her third child she would probably have moved to a less stressful role.

5. For loss of congenial employment, Evans v Virgin Atlantic Airways [2011] EWHC 1805 and Dudney v Guaranteed Asphalt Ltd [2013] EWHC 2515 demonstrated the usual range and relevant factors. An award of £6,500 was appropriate.

6. Under CPR 36.14, the court exercised its discretion after considering all the circumstances. The claimant received interest on recoverable costs at 2% above base rate from expiry of the offer to judgment, the full prescribed additional amount of £75,000, and standard-basis costs. No enhanced interest on damages was awarded. The defendant received the costs of the 3 October hearing, subject to set-off and detailed assessment if not agreed.