XP v Compensa Towarzystwo SA & Anor

Where successive torts contribute to psychiatric injury and the separate effects cannot be identified with precision, the court may adopt a broad-brush apportionment reflecting each tortfeasor’s causative potency. A claimant’s pre-existing vulnerability does not prevent a later tort from causing compensable exacerbation.

Under Polish law, IVF costs may be recoverable where they are a normal consequence of a traumatic miscarriage and are necessary to restore the claimant’s position, even though fertility has not been physically destroyed. Future earnings loss may be assessed by a lump-sum award where a multiplier-and-multiplicand calculation would be too uncertain.

The claimant sustained two road accidents. The first occurred in Poland in 2011 and caused a traumatic miscarriage, physical injury and psychiatric injury. The second occurred in England in 2013 while she remained psychiatrically vulnerable. Liability was admitted by both defendants, but the parties disputed causation, apportionment and quantum.

Damages arising from the first accident fell to be assessed under Polish law pursuant to Rome II. Damages arising from the second accident fell to be assessed under domestic law. The central issues included the duration and causative significance of each accident, the recoverability of fertility treatment, the allocation of past earnings loss, and the appropriate method for assessing future losses.

1. Judgment for the claimant. The court awarded £447,380 against Compensa and £25,080 against Mr Bejger, as set out in the appendix.

2. The first accident caused PTSD, followed by an ongoing depressive illness. The second accident caused an exacerbation of the PTSD lasting approximately two years, with diminishing intensity. By 2015 the continuing depression was attributable to the first accident alone. The claimant’s abusive relationship was a relatively small contributing factor.

3. It was impossible to separate neatly the effects of the two accidents in relation to past earnings loss. The case fell within the category identified in Rahman v Arearose Ltd [2001] QB 351, where each tortfeasor caused some damage, neither caused the whole damage, and precise attribution was impossible. A broad-brush percentage allocation was therefore appropriate. Seventy-five per cent of the relevant loss was attributed to Compensa and 25 per cent to Mr Bejger. The court distinguished Reaney v University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 1119, because that case provided a clear pre-injury baseline.

4. Applying Polish law, the IVF claim was a normal consequence of the physical injury caused by the miscarriage. The treatment was necessary to restore the position the claimant should have occupied, given her diminishing fertility and the accident-related psychiatric and social difficulties which prevented mitigation through a new relationship. The claim for £18,150 was allowed.

5. A multiplier-and-multiplicand approach was inappropriate for future earnings because of uncertainty concerning pregnancy, treatment, employment and relapse. A lump-sum award was made under the approach recognised in Blamire v South Cumbria HA [1993] PIQR Q1. The claimant received £150,000 for future earnings loss.

6. Interest on the Polish-law damages was assessed by reference to Polish law. The court accepted that interest ran from 30 days after the first notification of the claim.