Quantum update Stuart Hardy Partner, BLM Manchester. Helen Grimberg Partner, BLM London. Matthew Ford. Daniel Verow. Written and presented by

Transcription

1 Quantum update 2008 Written and presented by Stuart Hardy Partner, BLM Manchester Helen Grimberg Partner, BLM London Additional contribution by: Matthew Ford Associate, BLM London Daniel Verow Associate, BLM London November 2008

2 The 6 th edition of the Ogden Tables one year on Ogden Tables general overview The 6 th edition of the Ogden Tables was published in May It introduced a new method of calculating future loss of earnings, based upon research conducted by Dr Wass and Professor Verrall and analysis of the Labour Force Survey. Key factors were identified which revealed that some claimants were being over compensated and some under compensated, for loss of earnings, depending upon their own personal circumstances. The previous editions of the Ogden Tables led to a disparity in how the courts applied the provisions, which often resulted in Judges effectively pulling a figure out of the air. The 6 th edition intended to create a greater degree of clarity and certainty, whilst at the same time balancing any perceived inequality in the application of the previous editions. Before the 6 th edition of Ogden, the conventional approach for calculating future loss of earnings utilised a single working life multiplier. This was then adjusted to factor in contingencies such as geographic location, economic activity, and the occupational status of the claimant. This multiplier was then applied to the multiplicand (the pre-accident earning capacity less the residual earning capacity) producing the future loss of earnings figure. The research introduced by Wass and Verral revealed that non-disabled people spend more time out of work than previously anticipated, whilst the disabled have greater employment risks than was originally believed. The new tables mean that claimants disabled by accidents could be awarded substantially more compensation than under the previous editions. The definition of disability is wide (see Disability Discrimination Act 2005 and paragraph 35 Ogden Explanatory Notes Facts & Figures). The 6 th edition of the Ogden Tables envisages three key factors in determining the appropriate level of compensation to be awarded: 1. The employment status of the claimant. 2. The disability status of the claimant, and for the first time. 3. The educational attainment of the claimant. A reduction factor (see Tables A to D) is now applied to the baseline working life multiplier (also taken from Tables A to D) to reflect these factors. The full loss of earnings is calculated using a multiplier/multiplicand based on the claimant s pre-injury earning capacity, with reference to gender, age, educational attainment, disability status and employment status. A further calculation is then made using a multiplier/multiplicand to establish the residual earnings capacity, again with reference to gender, age, educational attainment, disability status and employment status. The figure produced by the second calculation is deducted from the first calculation to produce the actual loss figure. So, a year on, how have the new tables been applied in practice? Case law, as usual provides us with the best review of application by the courts. Quantum update 2008_HED_SKH_1108 1

3 Connor v Bradman & Co (2007) EWCH 2789 (QB) The claimant (aged 45 at date of injury and 50 at date of trial) suffered an injury to his knee. At the time of the accident the claimant was employed as a mechanic working for a vehicle dealership, and he remained so at the date of the trial. However it was accepted by all parties that the claimant would imminently require a total knee replacement, after which time he would be unable to continue working as a mechanic. The claimant intended to become a taxi driver. The primary argument between the parties was whether the claimant was disabled as a result of his injuries. The claimant argued that he was disabled and that Table B should apply, producing a reduction factor of The defendant argued the claimant was not disabled and Table B was therefore not relevant. It was argued that Table A should apply, which would produce a reduction factor of The claimant argued that the Ogden Tables (6 th ) are based on actuarial evidence and should not therefore be subject to tinkering by the court. HHJ Coulston QC did not accept the claimant s submission and cited that the explanatory notes to Ogden 6 make it clear that the Tables are not inviolable and can be adjusted to reflect the claimant s circumstances. The expert medical evidence supported the argument that the claimant would continue working as a taxi driver for more than half of his remaining working life. The court accordingly applied a reduction factor of which was the mid point between the respective arguments. The claimant received an award for future loss of earnings of 86, as opposed to the sum sought of 113,935. In conclusion, therefore, the judge used the Ogden Tables as a point of reference, but was not bound to apply them. Hunter v Ministry of Defence (2007) NIQB 43 The claimant (aged 30 at date of injury and 36 at trial) suffered a knee injury. He was left with permanent weakness and instability. The claimant had not worked nor had he looked for work since his injury. The court held that the claimant was capable of working. Similarly to the Conner decision above, it applied a mid point reduction factor, between whether the claimant is disabled and whether he were not. It then increased the factor to reflect that the claimant was aged 36 at trial, as opposed to aged 30 at the date of injury, on the basis that the claimant could have secured work before the trial but had elected not to do so. The judge adjusted Table B from a disabled unemployed man with no qualifications to that of a disabled employed man with no qualifications. The reduction factor applied was 0.60 as opposed to 0.20 as had been claimed. In conclusion therefore it seems the courts have adopted a flexible approach, and will consider all issues and facts of a claim when calculating the reduction factor. When a court is unsure if a claimant is disabled, the judge has a wide discretion on how to assess this disability by reference to the Ogden Tables. Quantum update 2008_HED_SKH_1108 2

4 Leesmith v Evans (2008) EWHC 134 (QB) The claimant (aged 24 at date of injury and 28 at trial), was a lighting technician and sustained injury to his knee resulting in an above knee amputation. He also sustained an injury to his dominant hand, resulting in reduced grip strength. The claimant had returned to work, but in a limited capacity with lower pay, to reflect his lower performance capacity due to his injuries. The claimant s pre-accident reduction factor was His post-accident reduction factor was 0.54, to reflect that he is now disabled. The defendant argued that some disability had already been taken in to account when determining the post-accident multiplicand, and as such a reduction factor of 0.92 to 0.54 should apply. The court partially agreed and applied a reduction factor of This decision indicates that a manual worker amputee with a reduced grip in the dominate hand is likely to be found to be less disabled than the average employed disabled person. Whether a different court at a different time would agree remains uncertain. It seems the courts are approaching claims subjectively, but so far there appear to be wide variations in possible compensation levels. Hopkinson v Ministry of Defence & VT Services Ltd (2008) EWHC 699 (QB) The claimant (aged 43 at date of injury and 52 at trial) sustained serious fracture injures to both legs. He experienced significant medical complications which hampered, delayed and ultimately prevented a full recovery. By the date of trial the claimant had undergone no less than 20 corrective operations to his legs, all with very limited or partial success. Despite surgery the claimant s legs remain deformed, resulting in permanent pain and limitation of mobility. The court varied the reduction factor for the non-disabled multiplier to reflect the fact that the claimant had a good work history which meant that he was likely to have remained in full time employment until he retired. The multiplicand was then reduced by 10% to reflect the possible risk of unemployment. The disabled reduction factor was not applied, but the residual earnings multiplicand was reduced by 50%. The award was the same as it would have been with a direct application of the Tables. This decision demonstrates that the courts are now prepared to adjust and apply the Tables subjectively to reflect each claimant s individual circumstances. Peters v East Midlands Strategic Health Authority & Others (2008) EWCH 778 The claimant (aged 20 at trial) was born with a congenital rubella condition because of the negligent failure to administer her mother with a rubella vaccination. The claimant was severely disabled with autism, severe learning difficulties, impaired vision, behavioural difficulties, and a disfigured spine. The claimant s family was dysfunctional with low intelligence and a poor employment history The claimant argued that a reduction factor of 0.68 should be applied and sought a future loss of earnings claim of 215,706. The defendant argued that the claimant only ever had a limited earning capacity due to both her genetic and dysfunctional family back ground. The defendant argued that a reduction factor of 0.32 should apply, which would produce an award in the region of 100,000. Quantum update 2008_HED_SKH_1108 3

5 The court accepted some of the defendant s arguments, namely that the claimant s employment prospects were speculative and any employment was likely to be sporadic throughout her working life. The court applied a reduction factor of The claimant received an award of 158,600. This decision demonstrates the application of the academic attainment element of Ogden. The courts will permit speculation as to what that attainment level might have been, but for the intervening tortious act, particularly where the claimant has been unable to embark upon his or her educational career, or the injuries have effected the claimant s educational performance. Henderson v Sutherland (2008) COSH 158 The claimant (aged 48 at trial) suffered multiple injuries which had required her to terminate her employment with the Prison Service. The claimant had since secured alternative employment in a factory, but for a lower wage. The claimant also argued that upon her scheduled retirement with the Prison Service at aged 60 she would have then worked for 5 years in an alternative role. The court was not minded to apply Ogden 6, citing that the Tables provided no useful assistance and that to consider the claimant s submissions involved considerations which do not reduce to a level of arithmetical or statistical precision. In essence the court was not happy to address the claimant s pre-scheduled retirement earnings and post-retirement earnings (aged 60 onwards) with reference to Ogden 6 because more than one calculation would have been required. This would have been to reflect the good job security, with minimal risk of redundancy in a job with the Prison Service, and the different risks in any private sector employment. The court ruled that the Ogden tables are of course only guides. It preferred to adopt a broad axe approach. As such it seems that whilst the courts are prepared to be flexible when considering Odgen 6, there are circumstances in which Odgen 6 will not be applied at all. Crofts v Murton (Queen's Bench Division - 5 September 2008) Mr Crofts was injured in a road traffic accident while riding his motorcycle to work in June As a result of the injuries, he was left incapable of independent living and was cared for largely by his wife. Expert evidence was adduced as to the reduction in life expectancy of Mr Crofts caused by the injuries and the court accepted his life expectancy had been reduced by five years. This was then subtracted from the government actuary's expectation of life figure for a man of his age (31.7 years - 5 years = 26.7 years). A major argument in the case then focused on which of the Ogden Tables should be used to calculate the multiplier for Mr Croft's annual losses - table 1 (multiplier for loss for life where life expectancy is impaired) or table 28 (multiplier for future loss over a fixed period). The claimant submitted that table 28 was appropriate, stating that Mr Crofts' expectation of life was a term certain (26.7 years). The defendant considered using table 1 appropriate because the court had decided only how much his pre-injury life expectancy had been shortened when compared to the average male of his age, rather than assessing exactly how long Mr Crofts would live. The court agreed with the defendant, adding the reduction in life expectancy to his real age and then using table 1 to calculate the multiplier. Quantum update 2008_HED_SKH_1108 4

6 Comment This case provides important guidance for insurers on the application of the Ogden Tables. It is fair to assume that, where medical evidence gives a reduction in life expectancy as against the average male, table 1 is appropriate. However, where medical evidence goes further and assesses how long an individual in a particular case can be expected to live, table 28 is applicable. Conclusions 1 The definition of disability is very wide (see DDA 2005) and is therefore open to interpretation by the courts. There is presently no measurement in the severity of a disability. It seems that an employed manual worker amputee, with a reduced hand grip, in the dominant hand (Leesmith above), will be treated less favourably and less disabled than the average employed disabled person 2 The courts are approaching claims subjectively, but there remains wide variations in the application of Ogden 6, and in some situations the court can refuse to apply Ogden 6 at all 3 At this early stage the intended clarity, certainty and fairness; which the revised tables were designed to achieve, have yet to materialise. In time, once the courts have fully comprehended, understood and uniformly applied Ogden 6, then we can expect to see trends developing which might enable a degree of predictability as to what decisions the courts will make 4 It is apparent that the courts are taking a proper flexible approach to how Ogden 6 will be used, underlining the court s wide discretion. 5 There is no requirement for the court to strictly adhere to the tables. A degree of flexibility exists and the published figures within the tables represent a starting point only The way ahead Are there any tactical arguments defendants can use to adjust the reduction factor? 1 In the context of the residual earnings capacity, defendants could argue that the pre-injury reduction factor should be adjusted downwards to reflect the uninjured claimant s risk of experiencing future periods of unemployment, or not reaching normal retirement age on such grounds as poor employment history, poor medical history, or relatively insecure previous employment. It is important to gather as much evidence on these factors as possible, such as medical opinions, medical notes, school reports, qualification certificates, appraisal documentation, etc. A successful argument will reduce what the claimant s future earnings expectations would have been, but for the injury 2 Conversely, always consider whether a new career path is open to the claimant, subject to training and qualification. If so, then argue that the disabled and unemployed reduction factor should be adjusted upwards to reflect the claimant s probable return to work in the future, and by reason of the same, the increased employment prospects than those envisaged by Tables A D 3 Defendants should always consider raising an argument of failure to mitigate in claims where the claimant has failed to return to work. As was demonstrated in Hunter v Ministry of Defence the application of Ogden is discretionary and the court will adjust the reduction Quantum update 2008_HED_SKH_1108 5

7 factor as it deems to be reasonable, and conduct of the claimant will be considered as a factor 4 The age group of the claimant is always a relevant factor. Defendants should argue for an upwards adjustment of the post injury reduction factor where it appears that the claimant s disability might be modest in the relative context of his/her age group. For example it would be more common for an average 58 year old to suffer from permanent, niggling back pain, than an average 18 year old. If you had a 58 year old claimant and an 18 year old claimant with the same symptoms, it could be deemed to be a disability for the 18 year old, whilst this may not be so with the 58 year old claimant 5 Defendants must argue the relevance of the disability in the context of the claimant s likely field of work. For example, any disability is going to be of less relevance to a sedentary career role as opposed to manual handling work Quantum update 2008_HED_SKH_1108 6

8 Chronic pain Definition of chronic pain Chronic pain means long-term pain. This is sometimes described as an unpleasant emotional experience, which is usually associated with distress, anxiety and depression. When a claimant continues to complain of pain symptoms for a long period after an accident in the absence of any organic explanation for the symptoms, it is important to try and understand what might be causing these complaints. Chronic pain symptoms can have a great impact on a patient s day-to-day functioning, and their ability to do ordinary every-day activities, leisure activities, go to work, and maintain satisfactory relationships with friends and family. Example: An apparently minor incident, such as a rear end shunt occurs. On clinical examination, MRI and X-ray investigations reveal no broken bones, torn ligaments or any evidence of structural damage. The orthopaedic or neurological diagnosis is one of soft tissue injury and the clinical prognosis is that pain symptoms will resolve within a few weeks or months of the event. However, the claimant continues to complain of pain symptoms and sometimes of deterioration in their condition. The claimant s symptoms subsequently extend beyond the site of original injury and become widespread throughout the claimant s body. Orthopaedic or neurological doctors report that there is no organic explanation for it. JSB Guidelines The JSB Guidelines list the following as chronic pain disorders: Chronic Pain Syndrome Fibromyalgia Chronic Fatigue Syndrome Reflex Sympathetic Syndrome Somatoform Disorder Chronic Pain Syndrome is described as a psychiatric disorder and is split into two classifications. Firstly, as a pain disorder and secondly, as a persistent pain disorder. Quantum update 2008_HED_SKH_1108 7

9 Both are regarded as somatoform disorders, which are the presentation of physical symptoms with no demonstrable organic basis to all intents and purposes, somatoform disorder and chronic pain syndrome are the same thing. The obvious psychiatric conditions identified in the JSB Guidelines are: Chronic Pain Syndrome Chronic Fatigue Syndrome Somatoform Disorder The guidelines place Complex Regional Pain Syndrome in the psychiatric damage section of the guidelines. However, medically it is considered to be a physical manifestation and it is suggested a rheumatologist would be an appropriate expert to comment upon this. Fibromyalgia is also listed as a psychiatric disorder. Clinically it is perceived to be very similar to chronic fatigue and chronic pain syndrome, therefore patients presenting fibromyalgia symptoms may benefit from psychiatric help. Problems presented by chronic pain claims Pain is subjective in nature and is defined by the person experiencing it. The medical community's understanding of chronic pain now includes the impact that the mind has in processing and interpreting pain signals. The difficulty as far as claims assessment is concerned is that while a claimant may present physical symptoms of persistent pain, there may be no apparent ongoing physical cause. This in turn makes identifying diagnosis, causation and setting an adequate reserve very difficult. A factor that must be considered is - is the claimant genuine? It is imperative for a potential chronic pain case to be spotted early and a forensic approach applied. This will ascertain whether or not the claimant is genuine. Frequently with chronic pain claims, it is unobvious that the claim is of high value until late in the day and it may then be too late to arrest development of the condition. There may be significant disproportion between the claimant s injuries and the claimed symptoms. There may also be a degree of irrationality on behalf of the claimant, which will in turn make it difficult to distinguish genuine from fraudulent claims. Quantum update 2008_HED_SKH_1108 8

10 Practical steps 1 Consider: How severe was the initial trauma the more milder the trauma the less likely there ought to be ongoing symptoms with an organic origin. The more severe the trauma the greater likelihood of continued pain on an organic basis Which anatomical structure(s) were damaged in the initial accident were the muscoskeletal/nervous tissues badly damaged? If so, there could be an organic reason for the pain presentation Does the claimant present similar presentations of pain when in a purely clinical situation ie when not being examined for litigation purposes Is there a psychologically mediated pain disorder? If it is established after medical examination that there is no organic injury but there are complaints of chronic pain, the claimant should be referred to an anaesthetist with a special interest in the management of chronic pain, a rheumatologist or pain management expert. In cases, however, where there are clear psychological implications such as, anxiety or depression or where there is a pre-accident history of psychiatric problems, a psychiatrist with experience in chronic pain disorders should be appointed. 2 Information gathering In determining whether a claimant may be suffering from a psychiatric disorder it is helpful to identify pre-accident indications of illness. It is vital to obtain complete copies of the claimant s medical records, Social Security records, Inland Revenue records and personnel records. Cross referencing all the above records is invaluable. Employment records may show: a. A pattern of previous employment b. The accuracy of claimant s evidence regarding pre-accident work c. Job security d. Whether the claimant was struggling before the accident Department of social security records may show: a. Inconsistencies relating to the nature and extent of the claimed disability b. Pre-accident disability or application for benefits Quantum update 2008_HED_SKH_1108 9

11 c. Whether the DSS believed the claimant d. Possible inconsistent accounts as to causation Medical records may show: a. Previous problems nature, cause, degree b. Likelihood of their recurrence in the absence of the accident c. Problems after the accident which could have caused a similar problem in any event d. Pre-accident features to consider in the medical records are: i. How often the claimant visited the GP with presentations of symptoms which led to no further diagnosis ii. Whether the claimant could not be re-assured by doctors there was no physical explanation iii. If there is a history of irritable bowel syndrome, long standing tension headaches, back pain or chest pains iv. If there is a history of chronic fatigue complaints 3 Use of clinical experts There are important features when considering whether a claimant is genuine for an examining clinical expert to comment upon: a. Consistency - compare the claimant s witness statement with complaints on examination. Inconsistency could suggest a diagnosis of chronic pain syndrome in the absence of any suggestion of exaggeration b. Extreme exaggeration sometimes claimants may present with such extreme signs of exaggeration the expert may conclude the findings inconsistent with a presentation of chronic pain syndrome. The conclusion may be that extreme exaggeration is for the purpose of litigation c. Illness behaviour - grimacing, grunting and groaning. These signs, if present and genuinely caused by pain should be shown in all situations, including a non-litigation setting and not just when the claimant is examined by a medico-legal expert d. Depressed mood - there is close connection between symptoms of chronic pain and depression. Minor mood changes such as feelings of frustration, distress, snappiness and irritably are commonly found in patients with a chronic pain complaint but minor mood changes may not amount to a diagnosis of clinical depression, which may require treatment in its own right. The distinction is important since a diagnosis of depression will lead to treatment of the depression, which, may turn, alleviate symptoms of the chronic pain syndrome Quantum update 2008_HED_SKH_

12 e. Diagnostic and Statistical Manual of Mental Disorders - DMS-IV (v 65.2) Malingering This is significantly under used by insurers and defendant s solicitors. Always ask investigating psychiatric experts to have regard to DSM-IV (V65.2) which states: Malingering should be strongly suspected if any combination of the following is noted: a. Medico-legal context of presentation (example the person is referred by a lawyer to the clinician for examination) b. Marked discrepancy between the person s claim of stress of disability and the objective findings c. Lack of cooperation during the diagnostic evaluation and in complying with the treatment regiment d. The presence of an anti-social personality disorder Expert s concerns about malingering should be understood, bearing in mind it is ultimately the role of the trial judge to make that judgment. The expert is entitled to state his or her view, whether the claimant is not suffering from any recognised illness (within his or her field of medicine) and the presentation is more typical of a medico-legal claimant where compensation is an issue. The expert may also state the presentation is not seen in clinic when compensation is not an issue if this is the case. Another issue which an expert should consider is, when it is clear the claimant genuinely suffers from psychologically mediated pain, would he/she have gone on to develop the condition in any event? It appears that those patients who develop chronic pain syndrome sometimes have a psychiatric vulnerability in any event, i.e. even before the index accident the claimant was a frequent GP attendee. Ask the expert to consider if the index accident was an objectively minor event will it follow that some other seemingly minor event would equally have put the claimant into a state of chronic pain regardless of the happening of the accident. 4 Video surveillance Surveillance evidence is a vital tool in establishing whether the claimant is fraudulent. It is a worthwhile investment, as often claimant s experts will not accept allegations of fraud or exaggeration without compelling evidence. The value of video surveillance is the comparison between the claimant s behaviour in normal settings and presentation in front of examining experts. The experts should be asked to record a detailed account of what the patient can and cannot do which may be compared with the claimant s appearance on video surveillance. It is worthwhile getting surveillance evidence on more than one occasion and can be particularly helpful around the time of medical examinations. Significant discrepancies are inconsistent with a diagnosis of chronic pain disorder and may lead to the conclusion the claimant is exaggerating for gain. Quantum update 2008_HED_SKH_

13 Treatment Chronic Pain Syndrome is treatable, although not easily curable. It is important to concentrate on helping the claimant lead as normal life as possible in the circumstances. This involves the secondary incapacity instead of treating the primary symptom (the perception of pain). The main form of treatment for chronic pain syndrome is cognitive behavioural therapy (CBT) which should be undertaken by a therapist who has experience in dealing with the treatment of the condition. The treatment is focussed on functional restoration, and treating the claimant s motivation. Treatment is usually done on an out-patient basis and can be tailored to the particular needs of the claimant s specific symptoms and performed on a one to one basis. Treatment should encourage the patient to gradually undertake various activities which before they could not perform. It is therefore important to inform the claimant at the beginning that the treatment is not to take away the pain symptoms but merely to help improve their everyday lifestyle. Patients are sometimes diagnosed incorrectly with Complex Regional Pain Syndrome or Fibromyalgia when the main disorder is psychologically medicated chronic pain syndrome and these patients can be denied the possibility of effective treatment. This shows the importance of placing such patients with the psychiatrist. It is vitally important at the outset of the treatment programme to establish a good working therapeutic relationship between the patient and therapist. It is essential the patient feels that his or her complaints are being taken seriously and are not regarded as just in the mind. The treating doctor should be aware of the possibility the patient may be addicted to analgesic medication and if this is the case, appropriate treatment should be offered. Treatment is likely to take between fifteen and twenty sessions over a period of around six months. Recent case law Sandra Thorp v Alan Sharp (2007) EWCA Civ 1433 The claimant was injured and contended ongoing pain notwithstanding that the orthopaedic and psychiatric experts could not account for pain complaints after a 12 month period. The judge found the claimant to be honest, save for some exaggeration. Because the experts could not definitively state that there was a link between the accident and the ongoing pain, the claimant had not proved her case on the balance of probabilities. Kirk v Walton [2008] EWHC 1780 (QB) This case involved circumstances where the claimant claimed damages in the region of 800,000 for personal injuries in a minor road traffic accident and where the case was settled in response of surveillance footage, this did not extinguish any argument for contempt. Quantum update 2008_HED_SKH_

14 Summary - dealing with chronic pain syndrome cases 1. Rule out organic injury this is a matter for orthopaedic or neurological experts a. Focus on the initial trauma, i.e. if obvious serious orthopaedic/neurological trauma results then it is likely ongoing pain can be explained organically b. Establish whether the claimant is a typical presentation following the specific type of injury experienced by the claimant. If not, this tends to suggest, amongst other signs, psychologically mediated pain or exaggeration 2. When there is no physical reason for ongoing pain seek to have the claimant assessed by a psychiatrist specialising in chronic pain syndrome rather than by a rheumatologist or pain management expert. Ensure the psychiatrist instructed is experienced in the treatment of Chronic Pain Syndrome and is generally optimistic about treatment prospects. Resist attempts by the claimant s solicitors to rely on a pain management expert 3. Enquire of the specialist psychiatrist whether the claimant presents with chronic pain syndrome. Satisfy yourself the expert has correctly identified the condition 4. If the claimant is genuine ensure he/she receives focused Cognitive Behavioural Therapy from an experienced psychiatrist who is an expert in treatment of chronic pain syndrome 5. Ensure you have full disclosure of the entirety of the claimant s medical records, personnel and occupational health files 6. Is the claimant depressed? This may tend to suggest chronic pain syndrome 7. Establish whether there are signs of extreme exaggeration on examination and illness behaviour signs like grimacing, grunting and groaning. These may tend to suggest exaggeration rather than chronic pain syndrome 8. Ask the expert about malingering. Is there a lack of cooperation during diagnosis? Are there lots of did not attend appointments in the medical records? Is the claimant complying with the treatment? Does the claimant have an anti-social personality disorder, e.g. extreme anger? This tends to suggest malingering rather than genuine psychiatrically based pain 9. Video evidence. This can help to establish whether the claimant has good levels of functionality and on a regular basis 10. Some claimants may experience a mixture of organic injury with psychiatric involvement i.e. where there is permanent damage to nerves or other tissue. Such condition would not usually cause considerable pain, however the claimant somatises and therefore the pain feels worse. Psychiatric treatment may be able to bring relief/partial relief. It should also be borne in mind some claimants may demonstrate a mixture of genuine organic illness, with some genuine somatisation and still exaggerate! This presents the defence team and the trial judge with obvious difficulties 11. Defendants need to be involved in early discussions with the claimant s advisors. Chronic pain cases present difficulties for both parties. Early offers may be accepted given the significant risks and other problems involved in these claims Quantum update 2008_HED_SKH_

15 JSB Guidelines (9 th Edition) The 9 th Edition of the JSB Guidelines for the Assessment of Damages in Personal Injury cases was published in September The JSB has been compiling, what Lord Donaldson of Lymington describes as the distilled conventional wisdom contained in the reported cases, supplemented by the collective experience of the working party, to present [a framework for calculating general damages] in a convenient, logical and coherent form since It is described by Hon. Mr Justice Owen as 1 widely adopted as the starting point in negotiating levels of payments for general damages in personal injury cases. The working party reviews the guidelines approximately every 2-3 years to 2 update figures in accordance with our standard practice, which is to look back over the past two editions and assess the impact of inflation. Lord Justice Waller notes in the foreword of the 9 th edition, that In recent years, any change to the recorded margin of awards has been as the result of inflation, rather that because of any dramatically different awards of the courts in England and Wales. The 9 th edition has not been in force for long enough for there to be many judicial decisions which refer to it. It is therefore too early to ascertain its impact on a judge s assessment of general damages. However it is worth undertaking a comparison of some common awards in the 8 th and 9 th editions to show how the introduction of the 9 th edition may impact on reserves. Type of injury Bracket 8 th ed. Bracket 9 th ed. Increase Minor Back Injury resolving within about 5 years Less Serious Hand Injury Serious Leg Injury Moderately Severe Psychiatric Injury Moderate PTSD Moderately Severe Brain Damages Total Deafness Direct Inguinal Hernia with risk of recurrence (Ch.6)(B)(c)(i) 4,575-7,125 (Ch.6)(I)(f) 8,400-16,800 (Ch.6)(L)(b)(iii) 22,650-32,000 (Ch.3)(A)(b) 11,200-32,000 (Ch.3)(B)(c) 4,825-13,500 (Ch.2)(A)(b) 127, ,500 (Ch.4)(B)(b) 52,950-63,625 (Ch.5)(L)(b) 4,000-5,350 (Ch.6)(B)(c)(i) 5,000-8, (Ch.6)(I)(f) 9,250-18, ,700 (Ch.6)(L)(b)(iii) 25,000-35,000 2,350-3,000 (Ch.3)(A)(b) 12,250-35,000 1,050-3,000 (Ch.3)(B)(c) 5,250-14, ,325 (Ch.2)(A)(b) 140, ,000 12,750-14,500 (Ch.4)(B)(b) 58,000-70,000 5,050-6,375 (Ch.5)(L)(b) 4,500-5, Foreword to 8 th Edition JSB Guidelines 2 Introduction to 9 th Edition JSB Guidelines Quantum update 2008_HED_SKH_

16 Analysis of the updated brackets reveals that each award has increased by approximately 9% which closely reflects the increase in the Retail Prices Inflation (RPI) since the 8 th edition (June 2006 June 2008). However, it should be remembered that the guidelines are just that and are not intended to fetter judicial discretion on damages. 1 Small claims The Ministry of Justice confirmed in July 2008 that there will be no increase in the small claims limit for personal injury claims, which will remain at 1,000. The uplifts in the ninth edition therefore mean that certain categories of modest injuries now either touch or exceed the small claims limit, for example: Moderate psychiatric damage [JSB 3(A)(d)] covers a range of 1,000 3,750 (eighth edition 840 3,450) Simple undisplaced nasal fracture [JSB 7(A)(c)(iv)] covers a range of 1,100 1,600 (eighth edition 1,000 1,400) Loss of back teeth per tooth -[JSB 7(A)(f)(iv)] covers a range of 700 1,100(eighth edition 630 1,000) Trivial facial scarring [JSB 7(B), (a)(v) & (b)(v)] covers a range of 1,100 2,200 (eighth edition 1,000 2,000) At 850 (eighth edition 750), the lower figure for minor whiplash [JSB 6(A)(c)(ii)] still remains within the small claims limit. 2 Asbestos claims One of the key changes in the ninth edition is the total omission of the category of pleural plaques, following the House of Lords decision in Johnston v NEI International Combustion in October This is mentioned in very neutral terms by MacKay J in his introduction to the new edition. The substantial health warning in the last forward [sic] as to Chapter 5(C)(e) (f) is now no longer needed in light of the House of Lords decision in relation to asymptomatic pleural plaques caused by asbestos exposure. For asbestos claims generally, the uplifts in the ninth edition lie within the 10% range mentioned above. However, there are different increases in the figures for provisional awards for pleural thickening [JSB 5(C)(e)]. The new range spans 4,250 7,000, as opposed to 4,000 6,000 in the eighth. These are increases of 6.3% (lower end) and 14.7% (higher) meaning the range has both widened and increased appreciably at the top. For mesothelioma claims, the narrative describing the condition includes a new section which may apply to cases of limited life expectancy post diagnosis. The new text at 5(C)(a) reads as follows: In cases of unusually short periods of pain and suffering lasting three months or so, an award in the region of 25,000 may be appropriate. Quantum update 2008_HED_SKH_

17 3 Uplifts over 10% Uplifts in few, if any, categories are lower than the 9-10% general increase. Awards for certain injuries, however, show higher increases. Notable examples are quoted in the table below. Injury type JSB category 8 th edition 9 th edition Increase Pleural 5(C)(e) 4,000 6,100 4,250 7, % (at top) thickening (provisional) Minor whiplash 6(A)(c)(ii) 750 2, ,750 13% (at bottom) Minor wrist fracture Minor psychiatric harm Severe back injury Minor hip/pelvis injury, complete recovery Minor hand injury 6(H)(e) 2,000 2,800 2,250 3, % (at bottom) 3(A)(d) 840 3,450 1,000 3,750 19% (at bottom) 6(B)(a)(ii) 46,300 52, % 6(D)(d)(ii) 2,175 2, % 6(I)(h) 500 2, ,750 20% (at bottom) Certain injuries resulting in sterility or infertility also show increases of the order of 12%, but these are not detailed here as they are relatively uncommon. 4 Future application All practitioners should revisit their existing reserves on the basis of the 9 th edition, particularly where claimants have suffered serious injuries, in order to maintain accuracy. The impact of the 9 th edition on court assessments of damages will be reviewed next year. Quantum update 2008_HED_SKH_

18 Claims on behalf of the deceased Traditionally there are two types of claims on behalf of people who have died before the date of the trial. The first involves a claimant who dies during the course of proceedings and second is the fatally injured party whose death empowers his estate to make a claim on his behalf. The former scenario is governed by the Law Reform (Miscellaneous Provisions) Act In this case, the existing claim can be transmitted to the claimant s estate within 3 years of either the claimant s death or the personal representatives knowledge, whichever is later 3. The latter is covered by the Fatal Accidents Act 1976, which allows the deceased s estate to make a claim for the injury which occasioned the fatality. However, further to Savage v South Essex NHS Foundation Trust [2007] EWCA Civ 1375 the Court of Appeal held that there is a third route to a claim on behalf of a deceased party. The deceased, who had been detained under s.3 Mental Health Act 1983, was permitted to leave hospital, where she immediately committed suicide. The deceased s daughter did not make a claim pursuant to the 1934 Act or the 1976 Act, but instead claimed under Article 2 of European Convention on Human Rights 1950 on the basis that the claimant s right to life had been infringed. The court found that the hospital had been negligent in failing to take measures to prevent the suicide and upheld the claim. There are two heads of claim for claims involving the deceased: Bereavement award Dependency claim 1 Bereavement In respect of bereavement claims, on 1 January 2008, the statutory award for bereavement increased from 10,000 to 11, Dependency a. Who is a dependent? In Kerry Sian Jones v Royal Devon & Exeter NHS Foundation Trust [2008] EWHC 558 (QB), the court upheld a claim for dependency under the Fatal Accidents Act 1976 by a child of the deceased who was conceived by artificial insemination (using the deceased s frozen sperm) approximately one year after the date his death. In addition, the court allowed a further award of 10,000 in the event that the deceased s wife went on to conceive another child by the same method. 3 Section 11(5) Limitation Act Damages for Bereavement (Variation of Sum) (England and Wales) Order 2007 (SI/2007/3489) Quantum update 2008_HED_SKH_

19 b. What is the correct rate and period of interest? In A Train & Sons Ltd v Maxine Fletcher [2008] EWCA Civ 413 the court considered the extent to which interest can be awarded for a financial dependency claim. At first instance, the court allowed interest on the entire dependency claim, not only from date of death to date of trial, but also on all future losses, at the full special account rate. The Court of Appeal upheld the earlier decision of Cookson v Knowles (1979) AC 556 HL, which confirms that interest is only permitted on a dependency claim from the date of death to the date of trial, confirming that this rule is not subject to the judge s discretion. Furthermore, the court held that using the full special account rate led to over compensation and as such application of half of the special account rate was reasonable. c. Calculating financial and non-financial dependency The case of Welsh Ambulance Services NHS Trust v Jennifer Williams [2008] EWCA Civ 71 involved a claim under Fatal Accidents Act The deceased was killed in a road traffic accident, when an ambulance collided with his car. The deceased was a successful business man and his wife and two children assisted with the business. Prior to his death the deceased had paid remuneration shares of the business profits to his wife and children, in excess of the market value of their assistance. After the father s death, the third child became a partner in the business and it continued successfully, with profits increasing. The court considered the deceased s skills and services in relation to the business and applied a dependency ratio of 12.5% (the additional percentage by which the claimant s business acumen added to the profits of the business). The defendant appealed, arguing that there was no dependency because: The court should not focus on the deceased s individual efforts and instead should look at the amount of profit generated by the business as a whole; and The fact that the business profits increased after the accident should be taken in to account; The Court of Appeal held that the judge was right to assess the individual contribution of the deceased. It was clear that the wife and children were dependents and that the deceased s contribution to the business was significant. Furthermore, it was irrelevant that business profits increased after the accident, because dependency is fixed at the time of death. d. Did the accident cause the death? The House of Lords judgment in Corr v IBC Vehicles [2008] All ER 943 is important for defendants. Mr Corr was employed by the defendant as a maintenance engineer. As a result of an accident at work, Mr Corr required reconstructive surgery to his face, but he remained disfigured and suffered from post traumatic stress disorder. He became depressed and eventually he committed suicide nearly six years after the accident. Proceedings were commenced for the physical and psychological injuries before his death, with the claim transmitting to his wife after his death. The defendant accepted that the accident involved a breach of the duty and it was also agreed both that Mr Corr s psychiatric illness was caused by the accident and that the depression precipitated the suicide. However, the defendant argued that no liability could attach because the suicide was too remote in that: The defendant owed the claimant no duty of care to prevent him from committing suicide; Suicide was not an act which was reasonably foreseeable and therefore not one for which it should be held liable; Quantum update 2008_HED_SKH_

20 The suicide was a voluntary act on the part of the claimant which broke the chain of causation and constituted a new act ; The suicide was inherently unreasonable; In the alternative, the defendant argued that the claimant s damages should be reduced because his own negligent (or intentionally dangerous) act contributed to his death. The House of Lords upheld the Court of Appeal s view and held that the employer owed the deceased a duty to avoid causing him both physical and psychological injury. The claimant s suicide was not outside the scope of the employer s duty of care. Furthermore, the deceased s depression was a foreseeable consequence of the defendant s breach. Suicide is a common consequence of severe depression and therefore the suicide was reasonably foreseeable. With regard to suicide breaking the chain of causation, the House of Lords did not accept the defendant s argument. It found that suicide could break a chain of causation when the claimant is of sound mind and the suicide is voluntary. However, in the case of Mr Corr, his capacity to make reasoned decisions was so impaired by his severe depression that suicide was not a considered option. The House of Lords did agree that the claimant s damages should be reduced for contributory negligence, but because the Court of Appeal did not comment on this issue, it could not be formally addressed by the Lords. Testing the principle in Corr Berrymans Lace Mawer recently defended a claim where a person employed as a security guard suffered a leg fracture during the course of her employment. She returned to work on light duties approximately 4 months later and worked for 8 months. The injured party then began to complain of chronic pain symptoms and after 2 years, committed suicide, claiming in the suicide note, that she could not longer manage the pain. The claim was transmitted to the deceased s estate and a claim for dependency was made pursuant to Corr v IBC. We obtained the claimant s medical records and obtained a report from a consultant psychiatrist and a pain management consultant. The experts found that whilst the deceased was suffering from depression prior to the suicide, the chronic pain syndrome had not been caused by the accident. The medical records revealed that the claimant had suffered from flu like symptoms approximately 8 months following her return to work, which the experts believe had lead to a post-viral infection. On balance of probabilities the court found that the non-accident related infection caused the claimant s depression, which in turn lead to her suicide. The dependency claim was therefore dismissed. This emphasises the importance of establishing that the suicide genuinely flowed from the accident. Instruction of the right experts is integral in this regard. Quantum update 2008_HED_SKH_