SCHEDULES OF SPECIAL DAMAGE AND FUTURE LOSS IN PERSONAL INJURY CASES

Transcription

1 SCHEDULES OF SPECIAL DAMAGE AND FUTURE LOSS IN PERSONAL INJURY CASES

2 A. Introduction 1. The importance of Schedules of Special Damage and Future Loss cannot be overestimated. 2. They provide the framework of the parties case in respect of financial loss. In many cases, particularly high value cases, pecuniary loss represents the greater part of the claim. Yet all too frequently both Schedules and Counter Schedules are poorly drafted, inadequate, incomplete, incorrect, untenable and in some cases nonexistent. 3. In addition to defining the respective parties case, a properly drafted Schedule provides a template for a Claimant's witness statement upon the issue of quantum and a signpost for the judge to follow when assessing the claim. 4. The sums claimed within the Schedule may be determinative of the issue of jurisdiction and the track to which the claim is allocated. Such matters may have implications to the issue of costs. 5. Because of the breadth of the subject matter and the complexity of some of its components, in particular the determination and application of multipliers to claims for future financial loss, this lecture cannot provide a complete or definitive analysis of all headings of loss that might be incorporated within a Schedule. Instead, it is designed to identify the procedural requirements relating to Schedules, the content of Schedules and a brief analysis of the

3 computation of various headings of loss. In examining these issues, common failings will be identified. B. Procedural Requirements 1. Pre-Action (i) Paragraph 3.14 of the Personal-Injury Pre-Action Protocol requires: "The claimant will send to the defendant as soon as practicable a Schedule of Special Damages with supporting documents particularly where the defendant has admitted liability." (ii) A failure to comply with this requirement is likely to prevent an early and fair resolution of the claim without recourse to litigation. (iii) It may also give rise to adverse cost implications. 2. Statement of Case (i) Paragraphs 4.2 of the Practice Direction to Part 16 of the Civil Procedure Rules requires that: "The claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims."

4 (ii) By the use of the word "must", this provision is mandatory. Therefore, a failure to comply with this requirement could result in an application to strike out the Statement of Case or the part thereof relating to pecuniary loss pursuant to CPR 3.4(2)(c). This is something that should be borne in mind by both parties, particularly where pressures of limitation exist. It is not uncommon for Claimants, facing an impending expiration of the limitation period, who have either not assimilated or not had the opportunity to assimilate headings of loss, to simply issue Particulars of Claim and endorse under the heading 'Particulars of Special Damage and Future Loss', words to the effect that Particulars of Special Damage and Future Loss will be served on a separate Schedule in due course or after discovery. Such an approach is noncompliant with the rules. 3. Statement of Truth (i) Paragraph 1.4(3) of the Practice Direction to Part 22 of the Civil Procedure Rules requires that a schedule or counter schedule of expenses and losses in a personal injury claim, and any amendments to such a schedule or counter schedule must be verified by a statement of truth. Moreover, this requirement applies whether or not it is contained in a statement of case. (ii) This requirement is frequently overlooked and a Schedule that is noncompliant is liable to attack

5 4. Counter Schedules (i) Unlike in respect of Schedules, there is no requirement for a Defendant to serve a Counter Schedule. (ii) Paragraph 12.2 of the Practice Direction to Part 16 of the Civil Procedure Rules merely provides that where the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attached to his defence a counterschedule. It will be noted that this provision uses the word "should" rather than the word "must" which is used in the rules in relation to Schedules. (iii) Although the rules do not impose an absolute requirement upon a defendant to serve a counter schedule they clearly give rise to an expectation that he will do so. Moreover, a failure by a defendant to serve a counter schedule is likely to prejudice his case significantly. C. Format of a Schedule 1. The Civil Procedure Rules merely state that a claimant must attach to his Particulars of Claim a schedule of details of any past and future expenses and losses. It does not provide for the format of such a schedule or its content.

6 2. Ordinarily, a Schedule will contain and be set out in three or four parts: (i) (ii) Narrative Pain and Suffering and Loss of Amenity (iii) Special Damage (iv) Future Loss D. Content of a Schedule 1. Narrative The narrative sets out that the underlying facts and explanations upon which the claim is founded and advanced. Typically the narrative will include: i. The Claimants date of birth. ii. iii. iv. The date of the accident. The Claimants age at the time of the accident. The date of the Schedule. v. The date of trial or notional date of trial. vi. The Claimants marital status and details of any dependants (if applicable). vii. The Claimants educational attainments and career progression (if applicable). viii. An explanation of the Claimants expected future career progression but for the accident (if applicable).

7 ix. The Claimants expected retirement age but for the accident (if applicable). x. The Claimants life expectancy or changes thereto (if applicable). xi. The Claimants interests, sports and activities (if applicable). 2. Pain and Suffering and Loss of Amenity (i) In some respects this aspect of a claim is missed placed in a Schedule of Special Damage and Future Loss as pain and suffering and loss of amenity are general damages. Nevertheless, a practice has developed, particularly in more serious cases, where reference is made to this heading of claim in the Schedule, either as a separate heading or within the narrative. (ii) Ascribing a value for pain and suffering and loss of amenity is frequently done by reference to the Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases. These provide a range of values for injuries of a particular type and severity. The Schedule may make reference to the bracket into which it is suggested the claimed falls. (iii) Reference in the Schedule to awards in comparable cases in support of the ascribed value of the claim is, however, inappropriate. The

8 practice is to refer to such sources in the course of opening and closing submissions. (iv) In addition to paying and suffering and loss of amenity, other headings of general damage are frequently included either under this separate heading or within the narrative. These include handicap upon the labour market (Smith v Manchester award), loss of congenial employment, loss of use of vehicle or other benefit and loss of marriage or marriage breakdown. The difficulty that frequently arises in respect of these headings of general damage is ascribing a value to them in the Schedule. Unlike pain and suffering and loss of amenity where one has the Judicial Studies Board's Guidelines, there is no standard publication to provide a starting point or bracket into which the case fits. Awards in respect of these general damage claims are case sensitive. Moreover, Smith v Manchester awards in particular, who may overlap other headings of claim within the schedule. 3. Special Damage (i) These represent the Claimants past losses and expenses. The claim may, however, include recognized categories of claim on behalf of third parties, e.g. a loss of wages claim where an employer has continued to pay the Claimants wages.

9 (ii) The headings of past loss and expense that are recoverable are numerous, and it is impossible to provide a definitive list, let alone a definitive analysis, of each of these within this seminar. The most common categories include: i. Loss of earnings or other income. ii. iii. iv. Medical expenses. The provision of aids and equipment. The provision of care, whether paid for or gratuitous. v. Inability to care for others. vi. vii. viii. ix. Accommodation. Increased household charges. Gardening and maintenance costs. Increased costs in relation to holidays and leisure activities. x. Damaged items. (iii) A number of these are relatively straightforward in their content and application. The constraints of this seminar dictate that I focus upon the most important and often the most contentious of claims. (iv) Loss of Earnings i. Where the Claimant was in secure employment and remunerated by salary or wages at the time of injury his loss of earnings claim will be relatively easy to calculate.

10 He will be entitled to recover his net salary and other emoluments for the period he was absent from his employment as a consequence of his injuries or until the date of trial, if he had not resume work. Care should be taken to ensure that all lost emoluments, and not simply obvious items such as loss of earnings and use of a company car, are included within the claim. These may include loss of concessionary travel and loans, private healthcare and insurance and various allowances. ii. There is a presumption that the Claimant's earnings would have continued at the same rate as at the date of accident. However, such an approach may be inapplicable in a number of cases. For example, the Claimant may have received pay rises, changes to his pay grade, or promotion. In such cases, evidence will be required to establish when and by how much his remuneration have changed. Ordinarily, the best source for this evidence will be his employer or a comparable employee. iii. Account also has to be taken where a Claimant's earnings are affected by overtime, bonuses or other irregular payments. Such payments cannot be assessed purely upon an historical basis. It does not follow that because payments of this type have been previously received they

11 will necessarily continue throughout the period of absence. The court must look at what payments the Claimant would have received but for the accident. Again, the best source for this type of evidence is likely to be the employer or a comparable employee. iv. Establishing loss of earnings on behalf of the selfemployed Claimant can create particular difficulties. Historical accounts and tax returns may provide some assistance. However, in many cases, there is uncertainty as to what work there were would have been available to the Claimant had he not been injured. This problem may be adequately answered where the Claimant has preexisting contracts for work. Where such certainty of work does not exist historical records are likely to be more important, although inevitably court will have to use an element of judgement in assessing what the Claimants income would be but for the accident. v. The courts judgement is even more likely to be necessary in a case where the Claimant has little or no documentation or that documentation does not disclose his true earnings. Given the uncertainties in such cases, the court may make a global or 'Blamire' award -- see Blamire v South Cumbria Health Authority [1993] PIQR

12 Q1. Such an award, or indeed any award, is less likely where there has been deliberate concealment of income. Although where there are good reasons for doing so a court may be persuaded to go behind a Claimants tax return or accounts, it is usually illegitimate to do so -- see Phillips v Holliday [2001] EWCA Civ (v) Medical Expenses i. This heading of loss encompasses a wide range of treatments and medications including operative costs, dentistry, physiotherapy, psychotherapy and even some alternative medicines and treatments such as acupuncture. The test to their recoverability is whether they were reasonably undertaken. In determining that question the court will consider the nature and severity of the injuries incurred. ii. A question that arises is whether it is a reasonable for a Claimant to incur private charges in respect of medical care that would have been available for free under the National Health Service. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 states that in an action for personal injuries the possibility avoiding expenses by taking advantage of facilities available under the National Health Service shall be disregarded in determining the

13 reason was of any expense. Therefore, the Claimant cannot be held to have acted unreasonably by having treatment undertaken privately rather than under the National Health Service. (vi) Gardening and Maintenance Costs i. A Claimant is entitled to recover damages where he has incurred expense where he has been unable, due to his injuries, to undertake domestic activities that he had hitherto undertaken himself. Such activities include housekeeping, gardening and home maintenance. ii. Such claims are frequently advanced in schedules, even where there is no evidence that the Claimant has actually paid someone to undertake these tasks. There is authority for the proposition that damages are only recoverable where the Claimant has actually paid for the works to be done or members of his family have given up paid employment to carry out such work -- see Daly v General Navigation Steam Co Ltd [1981] 1 WLR 120. iii. Even where evidence is available of someone being paid to carry out the work, the Claimants sometimes seek to claim elements of the work that are irrecoverable.

14 Ordinarily, recovery is only permitted in respect of the cost of labour on the premise that the cost of materials and tools would have been incurred in any event. (vii) Provision of Care i. Claims in respect of the provision of care are becoming increasingly common even in relatively minor cases. A claim for the provision of care is dependent upon it being considered reasonable by the court. In assessing this question the latter is likely to consider, amongst other case specific factors, the nature and severity of the Claimants injuries, the nature and extent of the care regime, and the cost of the care and the availability of cheaper alternatives. ii. Claims for care fall into two broad categories: a). Commercial Care Subject to the issue of reasonableness, if a Claimant has paid for a carer the expense is recoverable. b). Gratuitous Care

15 The courts have long recognized the principle that a Claimant could recover damages for the value of care provided freely to them by friends and relatives -- see e.g. Hunt v Severs [1994] 2 AC 350. The issue of gratuitous care is invariably contentious. This is due to a number of factors, not least its inclusion almost as a matter of course in even relatively minor cases and the lack of extraneous evidence -- such as invoices -- to establish what has been undertaken. Although the Court of Appeal declined to limit such awards to only "very serious cases" -- see Giambrone v JMC Holidays Ltd [2004] EWCA Civ 158, to sustain a claim for gratuitous care the assistance provided must be 'well beyond the call of duty'. Accordingly, in practice, awards for gratuitous care largely restricted to such cases. 4. Future Loss

16 (i) In pecuniary terms, the major headings of future loss comprise of loss of earnings, loss of pension, the provision of future care, the provision of future domestic assistance, the provision of future medical treatment, and the provision of future accommodation needs. In relation to the first four categories of loss these are primarily calculated by reference to a multiplicand and the application thereto of a multiplier. (ii) The Multiplicand The multiplicand is calculated by reference to the net annual loss in respect of earnings or the annual cost of providing care or other expenses. In many cases, the multiplicand will remain fixed at the date of trial. However, in some cases, in particular claims for loss of earnings where the Claimant s income was likely to have changed significantly, i.e. due to promotion, it is necessary to apply a number of multiplicands. (iii) The Multiplier i. Once the multiplicand or multiplicands are established a multiplier or multipliers are applied thereto in order to calculate the appropriate lump sum. The multiplier to be applied is derived from a set of actuarial tables known as

17 Actuarial Tables with explanatory notes for use in Personal Injury and Fatal Accident Cases. The tables are universally referred to as "The Ogden Tables" in recognition of the contribution made by Sir Michael Ogden QC as chairman of the working party responsible for the compilation of the first four editions. ii. The current edition is the 7th Edition. The latter do not involve any significant changes in methodology and merely update the 6th Edition to allow for changes in mortality rates. The significant change in methodology was introduced by the 6th Edition. Therefore, it is worth considering the explanatory notes to the 6th Edition as well as the 7th edition. iii. Under the present methodology the basic multiplier (derived from Tables 3 to 14) is to be the subject of adjustment to allow for contingencies other than mortality, in particular: a. Whether a person is disabled or not. b. Whether the person was employed or unemployed at the outset. c. The educational attainment of the person

18 iv. The methodology is essentially a three stage process: a. Calculation of the Claimants ' but for' earnings, i.e. the earnings the Claimant would have received had he not had the accident. b. This is arrived at by applying a multiplier to retirement age (derived from Tables 3 to 14, Ogden Tables) to the Claimant's net annual pre-injury earnings. The multiplier is discounted by a factor derived from either Table A (for men) or Table C (for women) to account for contingencies other than mortality. The discount factor to be applied is dependant upon the age of the Claimant at the date of trial, his educational attainment and employment status. c. Where however the Claimant was suffering from a pre-existing disability then Table B (for men) or Table D (for women) are respectively applicable. The resulting discount applied in such cases is significantly higher than in respect of non-disabled persons. v. A person is classified as being disabled if they have:

19 Either a progressive illness or an illness which has lasted or is expected to last for over a year. Satisfies the Disability Discrimination Act definition that the impact of the disability substantially limits the person's ability to carry out normal day-to-day activities Their condition affects either the kind or the amount of paid work they can do. vi. The second stage involves the calculation of the actual earnings (if any) the Claimant is likely to receive in the future. a. Having established the multiplicand, a base multiplier derived from Tables 3 to 14 is applied. In practice, this is often the same basic multiplier applied in stage one, ie where a person's injuries only impact upon the type of work they can engage in and thus their level earnings rather than their ability to continue in employment to their expected retirement age. Where, however, a Claimant will have to retire prematurely as a consequence of his injuries, the base multiplier to be

20 applied to stage two of the calculation will be reduced. Where future earnings are unlikely to remain constant a split of the overall multiplier is usually necessary using the "apportionment method". b. As in the first stage, the base multiplier is discounted. Where the Claimant suffers from a work affecting disability at the time of settlement or trial either Table B or Table D to be used vi. The third stage simply involves the deduction of the sum calculated under the second stage from the sum calculated under the first stage. The resultant figure is the sum claimed. vii. The ' Ogden Tables' do not, as often appears to be the perception, have universal application nor are they immune from challenge. As Lord Lloyd stated they are a starting point. Furthermore, the Explanatory Notes make it clear that they are subject to case-sensitive evidential features and, accordingly, there are instances where the methodology is appropriate but must be adjusted or is not appropriate at all.

21 viii. As the working party acknowledge the methodology does not take into account the pre-accident employment history of the Claimant. Such a consideration may be of great significance where the latter has a chequered work history or the nature of the work in which he was engaged at the time of the accident is insecure. Tables A to D only consider the age of the Claimant, his education and whether or not he is employed or disabled. Whilst there may be a correlation between the level of education and security of employment, not all those who are highly educated enjoy the latter particularly in the present economic climate. Accordingly, where job insecurity exists a significant increase in the level of discount may be appropriate. However, where a Claimant can establish a long history of employment with the same employer, the courts have been persuaded to increase the discount factor (ie reduced the discount applicable) suggested by the tables -- See for example, Fleet v Fleet [2009] EWHC 3166 (QB). ix. The Tables by the definitions they adopt or age parameters do not encompass significant parts of society. They exclude children under 16 and those aged over 54 years of age.

22 x. The Explanatory Notes explain that the reason for excluding those over the age of 54 is that their future employment status will be particularly dependent upon individual circumstances, and the level of discount applied is case sensitive. In such cases evidence relating to employment type and history, average retirement ages within the industry and/or Company and the security of the employment is likely to be important. As far as child claimants under the age of 16 concerned the most relevant factor according to Paragraph 41 of the Explanatory Notes is that the level of education the child would have been expected to have attained. Such an approach bears some correlation to the methodology contained within Tables A to D where one of the determinative factors is the level of education. However, it does create difficulties where the Claimant is a baby or very young. In such cases, reference may be made to any indicators of intelligence levels such as IQ tests or school reports and reference to family history, in particular parents and siblings. xi. Students present another class of society, where because they do not fall within the definition of employed as defined in Paragraph 35 of the Explanatory Notes the application of the methodology of Ogden 6 would cause

23 injustice. For example, a student in his final year of study, who has a training contract offered at a 'magic circle' firm of solicitors would be deemed to be "not employed" and thus subjected to a higher discount factor. xii. The working committee also recognized that there are cases where a multiplier/multiplicand approach is inappropriate and that a Smith v Manchester or Blamire approach is an alternative to the methodology of Ogden, rather than an additional claim, where a multiplier/ multiplicand approach is inapplicable. Nicholas Mason New Park Court Chambers 16 Park Place, Leeds. 12 th September 2012