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Willbye v Gibbons, Court of Appeal, 19 March 2003

25 March 2003
The issues

RTA – road traffic – loss of congenial employment – cost of care and special accommodation.

The facts

The Claimant was born in 1979 and had been run down by the Defendant’s car. She had been 12Ω when the accident had happened. The driver (after Appeal to the Court of Appeal) had been found 25% to blame. The Claimant had suffered serious injuries to her head, chest, right arm and left leg. She had developed epilepsy as a result of the head injury and the condition was not fully under control. She suffered mood swings, lack of concentration, forgetfulness and some speech impediment. She was described as “to some extent disorganised, vulnerable and dependent upon her partner. The Claimant and Defendants appealed and cross-appealed the award under the particulars headings of Pain, Suffering and Loss of Amenity, Care to Date, Loss of Congenial Employment, Future Care and Accommodation.

The decision

1. Pain, Suffering and Loss of Amenity – The Recorder had awarded £80,000.00. The award was not generous but was within the range of awards open to the Recorder. Applying Housecroft -v- Burnett, the Court of Appeal would not interfere.

2. Care to Date – The Defendant had argued that this was not a case where nursing was required, but rather someone who could cope with the Appellant’s moods, to be on hand when the Appellant fitted and to be able to check day to day details of the Claimant’s life, such as for example her not having gone off leaving the oven on. The important point was to provide a voluntary carer with proper recompense for his or her services – see Hunt -v- Severs. In Evans -v- Pontypridd Roofing, the Court had emphasised the importance of not putting first instance Judges into too restrictive a straight jacket in respect of care claims, on the basis that circumstances varied enormously and what was appropriate in one case might no be so in another. Whilst it was appropriate to have regard to the cost of services on the open market, adjustment would need to be made. It was inappropriate to bind first instance Judges to a conventional formalised calculation. The Recorder had taken the rate of £5.33 as claimed and discounted it by 25%. This was an admissible approach and the conclusion was acceptable.

3. Loss of Congenial Employment – The Claimant had been awarded £15,000.00 for loss of congenial employment. This was on the basis that she hoped to be a Nursery Nurse. She had never embarked on that career, so this was really an award for a particular disappointment. The sum should not exceed £5,000.00 and that sum would be awarded in place of the Recorder’s £15,000.00. It was important to keep awards in respect of loss of congenial employment in proportion and the Court of Appeal noted that Counsel had been unable to find an award above £10,000.00.

4. Future Care – The situation in respect of future care was not the same as in relation to care to date. The circumstances might change. The Claimant might have children and that might make it necessary for her to pay commercial rates for additional support. It was an unknown factor however and it would be inappropriate to make a separate award to allow for that contingency. The Recorder had awarded £45,000.00 as a lump sum to reflect the Court’s informed guess as to the Claimant’s future child care costs and £60,000.00 in respect of possible future assistance, should the Claimant in the future be left to live alone. The Recorder rejected a claim of £31,120.00 for the cost of a paid companion on holidays for the remainder of her life.

The Claimant had a contingent need for care but quantifying it was problematic and all that could realistically be done was to increase to some extent the fund available to satisfy her need for assistance in the future. It was inappropriate to try to evaluate separate types of potential demand. The separate awards of £45,000.00 and £60,000.00 would be set aside, however the Court would take into account the need for extra assistance if the Claimant had children or found herself living alone and to take account of those factors, the award in respect of future care would be increased from £136,932.16 to £181,129.60.

5. Accommodation – the Recorder had rejected the claim for accommodation costs put at just over £60,000.00 on the basis that there would be an element of double recovery, having regard to the Recorder’s attitude to care. More importantly, it was clear that the Claimant did not regard the bungalow type accommodation recommended as essential, because she had recently purchased a 3-bedroomed semi-detached house. There was however force in the modified claim for adaptation costs and a sum of £10,000.00 would be awarded.

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