Tate v Ryder Holdings Ltd & Anor

Damages must reflect the consequences of the injury proved, rather than speculative assumptions about an injured child’s possible future without the injury. Where an organic brain injury directly causes incapacity and the need for lifelong personalised care, the cost of that care should not be reduced merely because the claimant might otherwise have had a difficult life. A deduction may nevertheless be made for a significant, evidence-based risk that the claimant will fail to comply with the proposed care regime. The deduction must be fair and proportionate. Loss of earnings may be assessed on a loss-of-chance basis where the claimant’s counterfactual career is uncertain. A claimant may choose private care without proving that public provision would be inadequate, provided the choice is reasonably justifiable.

The claimant sustained a severe brain injury in a road accident when aged 11. Liability had previously been apportioned 70:30 in his favour. He was a protected party and claimed damages for lifelong cognitive, behavioural and care needs, together with loss of earnings and other consequential losses.

The principal disputes concerned whether his personality disorder was caused by the brain injury, how far damages should reflect the possibility of an equally troubled life without the accident, the appropriate future care regime, the risk of non-compliance with that regime, and the assessment of loss of earnings. The court also considered claims for private care, deputyship, case management and other related costs.

1. Nature and causation of the condition. The evidence established that the claimant suffered an organic personality disorder caused by the brain injury. His resulting lack of capacity required a regime of 24-hour personalised care, to continue indefinitely even if his condition improved with age.
2. Counterfactual life. It would be wrong in principle to discount the cost of care required directly because of the organic brain injury by speculating that the claimant might otherwise have lived a difficult or chaotic life. The future course of an 11-year-old child with learning difficulties was too uncertain to support the proposed broad discount. The same reasoning did not prevent a loss-of-chance approach to earnings.
3. Future care and compliance. Appropriate accommodation could involve specialist residential care or supported living at home. The court allowed £170,000 annually before adjustment for the risk of custody, and then applied a 20 per cent discount to reflect the significant risk that the claimant would not comply with the care regime. That discount was a fair and proportionate balance between the claimant’s incapacity and the defendants’ legitimate concern that substantial risks should not be ignored.
4. Private provision and other heads. The claimant was entitled to claim privately funded care without justifying that choice, and the choice was reasonably justifiable on the evidence. Loss of earnings was assessed on a loss-of-chance basis, using a discounted net annual figure and an appropriate multiplier. Other claims, including deputyship, case management, holidays, therapy, equipment and gratuitous care, were assessed conservatively to reflect uncertainty and likely compliance.
5. The court resolved the outstanding issues to facilitate settlement of a final order.

First-instance decision. The judgment records that liability had previously been apportioned 70:30 in the claimant’s favour. It determined the outstanding assessment of damages issues.