Benjamin Scarcliffe v Brampton Valley Group Ltd

Damages must compensate only for loss caused by the defendant’s breach. The court must compare the claimant’s actual position with the position that would probably have existed without the accident, including pre-existing conditions, family circumstances and likely future events. Where employment or care losses depend on numerous imponderable factors, a lump-sum assessment may be preferable to a multiplier-and-multiplicand calculation. Care and assistance must be reasonably necessary, additional to what would have been provided in any event, and proportionate to the benefit obtained. Expert evidence must remain objective. Any material change of opinion arising during the litigation or trial must be communicated promptly to the other parties and, where appropriate, to the court.

The claimant had already obtained judgment on liability following an accident at work in which a tree trunk struck his back. The trial concerned only the assessment of damages. He claimed substantial sums for chronic pain, loss of earnings, care, rehabilitation, equipment and future losses.

The defendant accepted that the accident caused stable spinal fractures and a chronic pain condition, but contended that much of the claimant’s disability arose from pre-existing degenerative spinal disease and psychosocial factors. The central issue was the claimant’s counterfactual position had the accident not occurred, including the likely effect of his degenerative symptoms and extensive family care responsibilities.

1. Causation and the counterfactual. The accident caused stable transverse-process fractures and disproportionate chronic pain in the left lumbar region. The claimant’s serious left-leg symptoms, rectal pain and urological symptoms arose from pre-existing degenerative spinal changes and would have occurred in any event. His family circumstances, psychological vulnerability, health anxiety and litigation-related factors were relevant to the biopsychosocial assessment of both the actual and counterfactual positions.
2. The claimant would probably have developed a serious pain syndrome in any event, although later and with a less acute onset. The accident accelerated or brought forward that development by approximately 7.5 years. His pre-existing symptoms and family responsibilities meant that he would have left heavy arboricultural work and moved towards limited or part-time work, followed by a stay-at-home carer role.
3. Assessment of loss. The court rejected the claimed employment and care calculations as overstated. Past and future employment losses were assessed globally because the multiplicity of uncertain factors made a precise calculation artificial. Future care was assessed by reference to the reasonable rehabilitation package and a limited contingency for relapse or residual loss.
4. Damages for care must reflect only additional care caused by the accident. The assessment had to allow for care that the claimant could still provide, care that family members would have provided in any event, statutory care, gratuitous-care deductions and realistic rates. A future dog walker was not a reasonably necessary expense and any loss of ability to walk a dog was reflected in loss of amenity.
5. Experts. An expert must notify the parties and court promptly of a material change of opinion. Legal representatives must draw relevant new evidence to the expert’s attention and obtain a properly considered written response before the expert gives evidence.
6. The court awarded total damages of £275,063.03, including £37,500 for future employment-related losses and £75,000 for future care.

First-instance assessment of damages following judgment on liability. No appellate decision is stated in the judgment.