MANUEL MATHIEU v TONY MARTIN HINDS & Anor

In assessing substantial personal-injury losses, the court must make the best assessment reasonably available on the evidence. Uncertainty does not, by itself, require a broad-brush award instead of the conventional multiplier and multiplicand method.

A claimant is required to take reasonable steps to mitigate loss, but refusal of medical treatment is unreasonable only where the defendant proves that conclusion and the likely effect on loss. The burden remains on the defendant.

Where the future tax treatment of damages is uncertain, damages should not be reduced under the Gourley principle unless it is clear beyond peradventure that the damages will not themselves be taxed.

Provisional damages require a measurable, more-than-fanciful chance of a serious and sufficiently clear-cut, severable deterioration. Epilepsy met that threshold; possible post-traumatic dementia did not.

The claimant suffered a severe brain injury after being struck by a stolen moped. Liability had been admitted, and the trial concerned quantum.

The principal disputes concerned the continuing effect of headaches, fatigue and cognitive symptoms on the claimant’s artistic productivity; mitigation by proposed medical and psychological treatment; the tax treatment of income-related damages; the appropriate method for calculating past and future loss; and provisional damages for epilepsy or dementia.

The court assessed general damages, past and future losses, and other heads of damage, and determined whether the statutory criteria and discretionary requirements for provisional damages were satisfied.

1. Mitigation. The claimant had not failed to mitigate his loss. The governing principles required reasonable conduct, assessed as a question of fact, with the defendant bearing the burden of proof. The claimant’s refusal of preventative headache medication was understandable because of the feared effects on creativity, drowsiness and cognition. The medical evidence was divided, success was not guaranteed, and the defendant had not shown what reduction in loss treatment would produce. The further fatigue-management argument had not been fairly pleaded and was unsupported by sufficiently clear evidence of likely benefit.
2. Taxation. The court applied the principle in Stoke-on-Trent City Council v Wood Mitchell and held that the Gourley netting exercise should not be undertaken unless it was clear beyond peradventure that the damages would not themselves be taxed. There was no adequate evidence of the claimant’s Canadian or other future tax position. Income-related damages were therefore awarded gross.
3. Loss calculation. Increased productivity and income after the accident did not preclude loss. The claimant could establish a continuing shortfall caused by symptoms. The court used a conventional multiplier and multiplicand approach, modified by percentage assessments of lost chance. It declined to adopt a Blamire award because the evidence permitted a more structured assessment, despite substantial uncertainty.
4. Provisional damages. Under section 32A of the Senior Courts Act 1981 and CPR 41.2(1), the court applied the three-stage approach in Willson v Ministry of Defence: a chance of the condition, seriousness, and whether discretion should be exercised. Epilepsy presented a measurable 5–8% risk, was serious, and was a clear-cut and severable condition. A lifetime provisional award was made. The claimant failed to establish a more-than-fanciful chance that his brain injury would cause dementia on the current scientific evidence. Further, dementia was insufficiently clear-cut and severable from the existing injury, so provisional damages would have been inappropriate in any event.
5. Judgment was entered for the claimant in the sum of £3,178,741.64, with a lifetime provisional damages award for epilepsy and no provisional award for dementia.