Guernsey Law Reports 2009-10 GLR Note 16
HELMOT v. SIMON
ROYAL COURT (Collas, Deputy Bailiff and Jurats): January 14th, 2010
Tort—personal injuries—damages
The plaintiff (“P”), previously an exceptionally fit and healthy individual, who had represented Guernsey at the Commonwealth Games in cycling, was involved in a head-on collision with a car driven by the defendant. He was not wearing a helmet. On admission to hospital, the injuries were deemed so serious that a priest was summoned to administer the last rites, and his relatives could only identify him by a distinguishing scar. An emergency CT scan revealed, amongst many other injuries, severe brain haemorrhages, complex cranio-facial fractures, a fractured wrist, pleural effusion, pneumothorax, and skin loss on his hand. He was in hospital (both in Guernsey and Southampton) for a considerable amount of time, several weeks of which were spent in an induced coma, during which his treatment included several bouts of surgery, a tracheostomy, fitting of a gastrostomy tube, physiotherapy, speech and language therapy and psychological advice. He suffered extensive paralysis (including facial palsy and a brachial plexus injury), receptive and expressive dysphasia, partial loss of vision, memory deficit, permanent disfigurement, and blackouts as a result of being in constant, often severe, pain. The injuries also contributed to his depression and other psychological disturbances (e.g. paranoia and social disinhibition). As a result of the accident, P became permanently unable to work and required round-the-clock care. He became obese as a result of a lack of exercise and taking certain medication. He attended adult literacy classes, which were eventually held privately as the tutor could not cope with his behaviour in class. P claimed both general and special damages.
In respect of general damages, P claimed £250,000, based on reference to English case-law and the guidelines of the Judicial Studies Board as to damages for moderately severe brain injuries.
P also claimed for, inter alia, the cost of purchasing and adapting a house; loss of past and future employment income, including the loss of a future professional cycling career; gratuitous care provided by his family; the losses to his mother as a result of her having given up employment to be with P in Southampton and to care for him in Guernsey; the costs of providing 24-hour paid care (including social insurance contributions in respect of the carers’ employment, and their travel costs); adult literacy classes; case management costs (rendered necessary partly by P’s mother becoming ill and being admitted to hospital); a private cycle track and swimming pool because of his social problems; and holiday expenses.
Held, awarding damages of £9,337,852.27 (plus interest):
General damages
The Jurats awarded P £235,000 for pain, suffering and loss of amenity. In order to ensure consistency in awards, and to encourage cases to settle out of court, the English Judicial Studies Board guidelines would, and should in future cases, be followed. The reduction from £250,000 reflected the fact that P fulfilled all but one of the criteria listed in the Judicial Studies Board guidelines as constituting a moderately severe brain injury, and it also made P’s claim consistent with English personal injury case-law. In determining the award, the Jurats also took into account P’s other injuries, the severe pain suffered over many years, the psychological disturbances and the loss of his amateur cycling career.
Special damages
(a) Loss of professional cycling career
Special damages were claimed for the loss of P’s professional career, but the court was not persuaded that P would have developed beyond his previous amateur status, and special damages were therefore not awarded in this respect.
(b) Gratuitous care
P could recover the fair and reasonable value of gratuitous care provided by family members, as long as it was a necessary consequence of his injuries (Hunt v. Severs, [1994] 2 A.C. 350, followed). There would be no compensation for mere companionship (Tagg v. Countess of Chester Hospital Foundation Trust, [2007] EWHC 509 (QB), followed)—for instance, as was given when P was in a coma—the care had to go distinctly beyond ordinary family life (Crofts v. Murton, [2009] EWHC 3538 (QB), followed). The value of the care could be based on the net loss of earnings, if reasonable to do so, but a more common starting point was to use the commercial value of the care, discounting for specific factors (e.g. non-incidence of tax and national insurance contributions). It was reasonable for P’s mother to have given up work, as P was in hospital in Southampton, and P’s recovery was helped by her care. For the period from when P was no longer comatose until his return to Guernsey, damages would be awarded for his mother’s care commensurate with the income she would have received had she remained in employment. After his return to Guernsey, his mother’s help was still required. Damages would be awarded so as to cover the pay rises she had given herself, which were in line with RPI inflation, but not her Christmas bonus. Whilst she was ill in hospital, the burden of care was shared, and for that period damages would be awarded of half the amount awarded when she was at home and caring for P.
(c) Past paid-for care and assistance
In assessing quantum, the Jurats were concerned with the loss flowing from the injuries, but the fact that P had been partially reimbursed by the Social Services Department would be considered when deciding the question of what would be a reasonable amount to be awarded. P was awarded damages for previous paid-for care, but where his carers and domestic assistants had been paid above a reasonable rate, damages would only cover such care up to a reasonable hourly rate. The award would include social security contributions made on behalf of the employed carers, but would only extend to 50% of their travel costs, since it was unreasonable to have one carer fly regularly from the north of England and for the carers to use taxis all the time—they should have had the use of P’s car.
(d) Past case management costs
As the case management duties had been executed reasonably, P would be awarded the amount claimed.
(e) Future case management costs
The damages awarded reflected the fact that a complete case management package was needed, without requiring supervision by P’s mother.
(f) Future care
The Jurats accepted that 24-hour care would be required. The damages awarded included the costs of a sleeping-in carer during the night, a daytime carer and a domestic assistant. Given P’s complex needs, the award would also include the costs of employing a team leader, who would provide supervision and training, as well as helping P. Occasionally, P would require 2 carers, for example, when swimming; provision was therefore made for a second carer to be present for 6 hours per week. In awarding the carers’ pay, the rate had to take into account the nature of the work, the loneliness and isolation felt by the carers, the challenges and difficulties posed by the work, the need to cope without the support of similar carers alongside, and the fact that no pension or benefits would be payable.
(g) Accommodation
The starting point was to follow English authorities in respect of accommodation costs (Morton v. Paint (1996), 21 GLJ 61, followed; Roberts v. Johnstone, [1989] Q.B. 878, applied). Damages were awarded for the cost of a four-bedroom house (including extra costs, e.g. agency and legal fees, running costs and the cost of purchasing household equipment), together with the cost of building an extension to the house comprising an en-suite bedroom for P. A deduction would be made equivalent to the rent P would have paid for housing had he not been injured. Such a house was deemed necessary to provide suitable accommodation for carers and sufficient storage space. If the court had simply awarded the cost of purchasing and converting a house for P’s use, his realty heirs would unjustifiably stand to gain a significant windfall, more than compensating for the financial loss suffered as a result of his accident.
(h) Swimming pool and cycle track
In spite of P’s social problems, it was felt that the local leisure facilities had not been properly investigated by P; damages to cover the cost of providing a private swimming pool had therefore not been proved to be reasonable and would not be ordered, since local facilities would be adequate. P would not be awarded the cost of a private cycle track, as, although he had learned to cycle again, there had been no attempt to cycle in the last 7 years, and it would not be reasonable to provide for a private track. It was, however, relevant in considering whether to award damages in this regard, that P had been an accomplished and passionate cyclist prior to the accident.
(i) Adult literacy classes
These were of questionable academic worth, and the tutor who gave P lessons at home was effectively providing care, rather than tuition. The amount she charged for private tutoring was not commensurate with carers’ pay, and P would therefore only receive 60% of the amount claimed.
(j) Holiday expenses
As the cost of going on holiday was now substantially greater for P than before the accident, damages would be awarded for holiday expenses, less the amount P would have spent on holidays in any event, had the accident not happened.
(k) Trust administration expenses
The court was not persuaded that a trust company would be required, and it was not a valid argument to suggest that one would be needed simply because wealthy individuals were advised to employ a trust company’s services.
Multipliers and discounts
The court would generally follow the English authorities in determining multipliers and discounts, recognizing, however, that they were not bound to do so in every case, especially if there were to be a conflict with Guernsey customary or statute law. The fundamental principle to be applied in determining both multipliers and discounts was that P should be compensated as fully as possible for his losses (Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25, followed). A discount rate of 1.0% would be applied, reflecting a starting point of 2.5%, in accordance with the English case-law (Wells v. Wells, [1999] A.C. 345, followed), deducting 0.5% for the difference between UK and Guernsey RPI, and a further 1.05% deduction for the reduction in the return on index-linked securities. The whole-life multiplier at a 1% discount rate would be 33.0, which was worked out following the Ogden actuarial tables.
2010
Law Report
None
Guernsey Law Reports 2009-10 GLR Note 16