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Dixon v Were, High Court, 26 October 2004

4 November 2004
The issues

Loss Of A Chance – Future Loss Of Earnings Claim For University Student Rendered Unemployable As A Result Of Accident – Basis For Assessment

The facts

The Claimant was born in 1976 and was a student at Newcastle University when in September 1994 he suffered a road traffic accident. He and five friends had gone for a drive all having had a good deal to drink. No seatbelts were worn. The car collided with a tree. Two passengers were killed and the Defendant was subsequently convicted of causing death by careless driving.

The Claimant was gravely injured sustaining severe physical injuries and brain damage. Liability was not in issue, contributory negligence having been agreed at 27.5%.

Two matters in particular were in issue at Trial: –

1) Loss of earnings.
2) The Claimant’s status as a patient.

The Claimant had remained in hospital until 4 months after the accident. From November 1997 until February 1998 he was in hospital for rehabilitation. Thereafter he was at home and being cared for by parents until September 1998 when he returned to University. He spent a term there but did not return in January 1999 remaining at his parent’s home instead. He had a first psychiatric crisis in December 1998. He returned to Newcastle University between September 1999 to December 2000.

Between December 2000 and August 2002 although he had left University he continued to live in Newcastle. In April 2002 he took a tenancy of a property in Henley. In June 2002 he was seen by a psychiatrist and in August voluntarily admitted himself to the Priory in Roehampton.

In late September 2002 the Claimant was sectioned under Section 3 of the Mental Health Act 1983 and compulsorily returned to the Priory. In November 2002 the Section was revoked and the Claimant was discharged.

Between November 2002 and May 2003 he lived in the Henley property. Between May and October 2003 he was an in-patient in the specialist brain injury rehabilitation unit at St Andrews – Kemsley South East. In August 2003 he began a relationship with an auxiliary Nurse at Kemsley. On 22nd October 2003 he discharged himself from Kemsley staying at his parents and with Lianne’s mother at Kettering, with a friend in London and with his brother.

In December 2003 Lianne became pregnant and it was assumed that the Claimant was the father. In January 2004 he obtained a rented flat in Putney and had lived there ever since intermittently with Lianne and under the care of a psychiatrist as an outpatient and a caseworker.

The decision

Issue 1 – Loss of Earnings

a) It was necessary to consider future loss of earnings; “the base line claims”
b) Loss of chance of high earnings.
c) Loss of renumeration package benefits.

Following Herring v Ministry of Defence, a decision of the Court of Appeal, in a situation of assessing the future earnings of a young Claimant not yet in employment the Court would have regard to the Claimant’s previous performance, his expressed intentions and ambitions, opportunities reasonably open to him and any steps he had already taken to pursue a particular path. A “loss of a chance” approach would be appropriate where the chance assessed had been the chance that the career of the Claimant would take a particular course leading to significantly higher overall earnings than those which it was otherwise reasonable to take as the baseline figure.

In the light of this guidance the percentage chance approach would not be adopted when considering the base line claim but would be adopted when considering the loss of a chance of high earnings and might be adopted when considering the loss of renumeration packages.

a) The Base Line Claim

The Claimant was described as lively and good-natured at school but not the hardest working student in the class. His University tutor described him as a student of average academic ability expecting him to graduate with a lower second. There was the possibility that he had had a drink and drugs habit at University, perhaps greater than his parents were willing to accept. However, the Court believed that it had been put behind him by his third year.

In addition to the academic record there was evidence of the Claimant’s charisma, confidence and energy. The Judge accepted evidence which described him as “gregarious”, an all rounder whose ambition was to get into the City and make a lot of money.

The Judge noted the Claimant’s contacts in city circles and Radley’s buoyant old boys network. On the basis of the evidence the Court found that it was doubtful that the Claimant would have qualified as an Accountant. It was likely that he would have been employed in the financial services sector. He might have had either a career in stock broking or the insurance sector. It is likely that he would have begun work in London but difficult to say whether he would have remained there.

The Claimant’s attractive personality and very considerable charm together with his background and his degree and his contacts would have secured entry into a good job with above average national figures. Although the Defendants had pointed out that part of the Claimant’s charm likely lay in the fact that his work ethics were not his foremost characteristic it had to be recognised that the Claimant was young and that many a successful commercial career had been built on the basis of force of personality notwithstanding an unpromising academic record. Accordingly the multiplicands would be £45,000.00 as at the date of the Trial, £50,000.00 from October 2005, £55,000.00 from October 2011 and £65,000.00 from October 2021. A Multiplier of 22.99 would be adopted reduced by 0.97 to take account of the fact that in the current employment climate it could not be assumed that the Claimant’s employment would have been continuous and unbroken.

b) Loss of Chance of High Earnings

The right approach was to take the percentage chance approach – see Herring. The Defendant had argued that the claim was speculative and against the weight of the evidence since the Claimant could not be described as a high flyer.

The Defendant’s submissions would be accepted. There was nothing in the evidence as to the Claimant’s academic record that lead to the likelihood of very high earnings. As to his application the weight of the evidence was against the Claimant.

Luck could never be underestimated but it could not provide the foundation for a claim of this nature.

c) Loss of Remuneration Package Benefits

An award would be made for a loss of a company car of car allowance and for health insurance. The Defendant had argued that a percentage chance approach should be applied but the Court found that there was an overwhelming probability that the Claimant’s level of earnings that such benefits would have been provided.

Issue 2 – The Claimant’s status as a patient/Fund Management

The Defendant’s challenged the Claimant’s lack of mental capacity relying on Masterman-Lister v Brutton. The Claimant lacked the requisite insight and understanding to undertake fund management for himself. This was not withstanding the admission of one of the Claimant’s expert that he had the necessary understanding provided that he was in receipt of appropriate assistance or advice.

The Defendant was therefore liable in respect of investment Court of Protection and Receivership costs.

Comments

Another interesting, or some might say questionable, example of the manner in which Courts will be influenced by background social factors in their assessment of future loss claims.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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