Swift v Carpenter

Compensatory damages must meet the claimant’s reasonable needs arising from the injury. The court assesses both the reasonableness of the claimed loss and its amount, having regard to whether substantially the same result could be achieved more cheaply. The claimant may reasonably select between functionally suitable prostheses where personal preference and clinical evidence support that choice; there is no single universally correct artificial limb. An Ogden reduction factor is not double recovery merely because injured earnings are already lower. It may be adjusted to reflect the claimant’s particular disability and circumstances. A first-instance court remains bound by the Roberts v Johnstone approach to additional accommodation costs, even where the current negative discount rate produces no award.

The claimant suffered severe lower-limb injuries in a road traffic accident caused by the defendant, whose liability was admitted. Her left leg was amputated below the knee and her right foot remained damaged. The trial concerned quantum only, including prosthetics, care, equipment, holidays, transport, earnings and accommodation.

The principal disputes included the reasonable choice and duration of prosthetic provision, the assessment of future earning capacity, and the recoverability of the additional capital cost of accommodation. The court also considered whether the negative discount rate made it permissible to depart from the established accommodation-cost formula.

1. Quantum. The court assessed the claim on the basis of reasonable needs and full compensation. Proportionality required consideration of whether substantially the same result could be achieved by less expensive means, but did not require selection of the cheapest option where the claimant’s choice was reasonable.
2. Prosthetics. There was a range of functionally suitable limbs and no single right artificial limb. The claimant’s preference for the Meridium, because it provided useful ankle movement and flexibility in footwear, was reasonable. The costs of both the Meridium and a cosmetically acceptable Elation limb were therefore allowed for life. The sports activity limb was allowed to age 70.
3. Care and equipment. The court made period-based findings on the reasonable amount and form of additional care. It allowed commercial and gratuitous care in differing proportions, live-in care during the last two years of life, contingency case management, and specified aids and equipment. It rejected unsupported or excessive claims, including an electric bike and certain vehicle costs.
4. Earnings. An Ogden reduction factor reflected the risk of periods of non-employment and longer unemployment caused by disability. Applying a factor was not double recovery. The tables were a starting point or ready reckoner, and adjustment was permissible for the claimant’s particular disability and circumstances. A factor of 0.7 was appropriate.
5. Accommodation. The claimant reasonably required special accommodation, assessed at about £2.35 million, but no award was made for the additional capital cost. The court was bound by Roberts v Johnstone, notwithstanding the negative discount rate and the acknowledged anomalies of the formula. The claim for adaptations and alterations was allowed at £260,000, with annual additional running costs of £9,100.
6. The total damages were £4,098,051, comprising £290,000 for general damages and past loss and £3,808,051 for future loss.

First-instance quantum judgment. Liability for the accident had been admitted before the hearing.