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Personal injury bulletin - quantum

    • Personal injury claims litigation - Personal Injury Bulletin

    06-03-2014

    Haxton v Philips Electronics [2014] EWCA Civ 4

    The Claimant was the widow of en electrician employed by the Defendant. Her husband had contracted Mesothelioma as a result of exposure to asbestos during the course of his employment.  The Claimant brought a claim following the death of her husband.  As part of the claim the value of her dependency was calculated in accordance with her own life expectancy.

    However, before the case came to Trial the Claimant herself was diagnosed with Mesothelioma due to secondary exposure as a result of washing her husbands work clothes.  Her life expectancy as a result had dramatically reduced.  The parties agreed that this reduced the value of the dependency claim by £200,000.00.

    The Claimant brought a second action seeking damages for her own injuries, including a claim for the diminution in value of her first action.  This claim was dismissed in the first instance.  The Judge stated that although the loss had been suffered it was contrary to principal to allow the Claimant to recover in her own right.  It was agreed however, that causation was established, this loss arose as a result of the Defendant's  negligent exposure of the Claimant to asbestos.

    The Claimant appealed and the only issue to be decided was whether this was a recoverable head of damage in law.

    The Defendant had argued that the Claimant was seeking wrongly to import the dependency loss into common law.  The Court held that the principals governing the Compensation Act were unaffected, and that there was nothing to suggest parliament intended to deny a Claimant in this situation the right to recovery. 

    Secondly it was argued that the Claimant ought not to be able to recover dependency for a period when she would not in fact be dependent.  However, it was held that it is possible to recover losses when a Claimant is no longer living (Pickett v British Rail Engineering [1980] AC 136 and fox v British Airways [2013] EWCA Civ 972) However, the Claimant had actually suffered the loss at the point the first action was settled.

    Finally, the notion the loss might be too remote was rejected.  The Defendant must take the Claimant as they find her.  It was reasonably foreseeable that the reduction in her life expectancy would lead to a diminution in value of the litigation claim.  

    Coles & Others v Hetherton & others [2013] EWCA Civ 1704

    The case concerned 13 small claims which had arisen out of minor traffic accidents.  In each case the Claimant's were insured by RSA and the Defendants by Provident and Allianz. 

    In each case the Claimant's insurance contained an option whereby the Claimant could have the vehicle reinstated if the cost of repair was judged to be less than the value of the vehicle.  If the option was taken there were two further options, either to engage their own repairer or elect to use RSA's system for repairing vehicles.  If the policy holder chose the latter the policy also gave the option of a courtesy car. In all 13 cases the Claimants chose to use the RSA repair system option.

    The RSA repair system key facts were:

    1. a company in the RSA group called MRNM (trading name of RSA Accident Repairs Ltd) owned six garages (called QRC's) staffed by its own employees, 
    2. if the insurer elected the RSA option the car would be repaired in one of the garages or , independent sub contractor  who would be part of the PRN (Priority Repair Network);
    3. there was a service agreement between RSA and MRNM;
    4. the amount charged by MRNM was designed not to exceed what an individual would be charged if they had gone into the market to get the same repairs done.  In some cases the Claimant's had exercised the right to a courtesy car.  In all cases RSA was exercising its right of subrogation and brought the claims in question. 

    The main question was whether the Claimant could recover the full cost of repairs when the vehicle had been repaired using the RSA  repair system. There was also a subsidiary question regarding the recovery of cost of the courtesy car.

    In January 2012 it was ordered there be a determination of three preliminary issues:

    1. where a vehicle was damaged as a result of negligence and was reasonably repaired, whether the measure of the Claimant’s loss would be taken as the reasonable cost of repair;
    2. if a Claimant’s insurer had arranged repair, whether the reasonableness of the repair charged could be judged by reference to:

      (a)        what a person in the position of the Claimant could obtain on the open market; or
      (b)        what his or her insurer could obtain on the open market
    3. where a vehicle was not a write off and an insurer indemnifies the insured by having repairs performed and paying charges for those repairs, and where the amount claimed was no more than the reasonable cost of repair, whether that amount was recoverable.

    In May 2012 the judge heard argument on the above. The Defendant appealed the decision. 

    The appeal was dismissed:

    1. It was established law that where a chattle was damaged by the negligence of another the proper level of that loss was the diminution in value of that chattle, if it could be economically repaired the Claimant was entitled to have the repair costs.  Only if the sum claimed appeared to be clearly excessive would the Court be justified in investigating whether the sum exceeded that which would have been incurred by having the repairs carried out by a reputable repairer.  It is not the cost of the repairs which constitutes the loss, but the diminution in value of the chattle.
    2. The Defendants had to accept that the Claimant’s insurance arrangements were irrelevant and could not be prayed upon to aid a reduction in their liability.  The Claimant is entitled to recover losses, whether such a claim is brought directly, or by the insurer who has indemnified the Claimant and brings a subrogated claim.
    3. If the Claimant’s insurer has arranged the repair, the reasonableness of the repair charge was to be judged by reference to what a person in the position of the Claimant could obtain on the open market.
    4. The position of the courtesy car was different.  It cannot be part of the repair costs.  if the Claimant is deprived of a chattle he could recover a sum for that deprivation.  There are cases which show that it is established that a Claimant can recover these costs provided he has reasonably mitigated his loss, and the costs contains no element which is not legally recoverable.
    5. The Defendant’s arguments on specific charges included in the invoices for repairs all missed the point.  The question was not whether each charge was reasonable, but whether the overall cost is reasonable.
    6. The issue between the parties regarding the courtesy car centred on whether that insurance policy would indemnify the Claimant for his loss of use of the vehicle by supplying a replacement.  This was a contractual benefit under the insurance policy  Mitigation concerned actions taken to reduce the loss after the tort had occurred.  here the Claimant was exercising contractual right.  The reasonable cost of the courtesy car (£11 a day) was recoverable.

    Large v Norfolk County Council

    The Claimant was involved in accidents at work in her capacity as a carer. On the first occasion in June 2004, she was assisting a patient getting out of bed when the patients legs gave way and she fell, dragging the Claimant with her.  On the second occasion in September 2004, the Claimant was assisting a patient to the toilet, when again the patients legs gave way, causing the patient to fall onto the Claimant twisting her back in the process.

    Liability was determined at 70:30 in favour of the Claimant.

    As a result of her injuries, the Claimant developed fibromyalgia and was no longer able to work and required round the clock assistance and adapted accommodation.

    The Claimant’s medical evidence from a rheumatologist and orthopaedic expert noted that the Claimant was at the severe end of the spectrum and was unlikely to get better.

    Damages were settled on the basis that the Claimant would continued to receive her assessed local authority care package which amounted to approximately £40,000.00 per annum, and her compensation was all paid in to a personal injury trust.

    Damages were settled in the sum of £1,500,000.00 following the 30% reduction for contributory negligence.

    The bulk of the damages related to future care costs which on a 100% liability basis was in excess of £1,400,000.00.

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