Practice and Procedure

REBECCA CLAIRE WILLBYE (By her mother and next friend) v BRIAN GIBBONS (2003)

PUBLISHED March 19, 2003

The Court of Appeal allowed in part an appeal and cross-appeal from a Recorder's decision on the quantum of damages in relation to a personal injuries claim arising out of a road traffic accident.Claimant's appeal and defendant's cross-appeal from the decision of Ms Recorder Harman in a disposal hearing in relation to a personal injuries claim arising out of a road traffic accident. The claimant ('W') was born in 1979 and in November 1991 was involved in a collision with a car driven by the defendant ('G') who was found to have been 25 per cent to blame. W sustained serious injuries to her head, chest, right arm and left leg. Her orthopaedic injuries had healed well but she had developed epilepsy as a result of the head injury. The head injury had also affected her personality. W had been accepted as a patient by the Court of Protection and her solicitor acted as receiver. The Recorder found that because W received such excellent support from her mother and her partner that her disability was to some extent masked. The Recorder awarded damages: (i) for pain, suffering and loss of amenity, (ii) for losses and expenditure to date, and (iii) for anticipated future losses and expenditure. W appealed and G cross-appealed. The issues on appeal were the amounts of the awards for (i) pain, suffering and loss of amenity; (ii) past care; (iii) loss of congenial employment; (iv) future care; (v) accommodation; and (vi) Court of Protection costs.HELD: (1) The award of ?80,000 for pain, suffering and loss of amenity was not generous but it was not manifestly too low and no error of principle had been demonstrated. (2) W's family and her partner were entitled to be compensated for their services. The Recorder's method of calculating that claim, by reference to a specified number of hours at a commercial rate which was then discounted by 25 per cent, was a permissible approach which took relevant matters into account and arrived at an acceptable conclusion. (3) The award of £15,000 for loss of congenial employment was too high. Such awards rarely exceeded £5,000 and that sum should be substituted for that awarded by the Recorder. (4) Future care and assistance was claimed for 21 hours per week at the same rate as past care, namely £5.33 per hour, for the rest of W's life. Applying the appropriate multiplier produced a claim for £181,129.60. The Recorder reduced that figure to reflect the non-commercial source of the care and made separate awards of £45,000 for child care costs and £60,000 to allow for the possibility that at some time in the future W might need further assistance because she would be living alone. The day to day care that W received from her family and partner would be required for the rest of her life. Everything else was speculative. The Recorder was wrong to make separate awards which, may lead to duplication or compensation for contingencies that never have happened. The separate awards should be set aside. The way to take account of the possibility of W having children, living alone or wanting to go on holiday alone, when assessing her need for future care, was to raise the overall award to the original figure claimed. (5) The Recorder was right to reject a claim of £60,000 for special accommodation but W was entitled to £10,000 for the costs of adapting any property in which she lived to meet her needs. (6) There would be no interference with the Recorder's award of £88,653.10 for Court of Protection costs, being the annual costs of the remuneration of W's solicitor acting as receiver multiplied by the appropriate multiplier, even though W would only recover 25 per cent of that amount so that if the solicitor continued to act as receiver the balance would have to be met out of the award under other heads.Appeal and cross-appeal allowed in part.

[2003] EWCA Civ 372