Patrick Mullarkey, Campbell Fitzpatrick Solicitors

General PrinciplesRestitutio in IntegrumNot possible where injury is severeIntention of special damages to compensate

for extra costs and lossesMinimise effect of injury, maximise quality of

lifeReasonable expenditure, not desirable

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General PrinciplesLevels of Damages

have increased - 3 factors influence value

1 Severity of injury2 Life expectancy3 Quality of legal

representation

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Heads of Damage - GeneralsPhysical pain and sufferingAwareness of accelerated deathSexual dysfunctionLoss of joy in workLoss of holidayLoss of sporting activityImpairment of housekeeping abilitiesPsychological problems

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Calculating Generals“Green book”Kemp and KempButterworth’s

Personal Injury Litigation Service

PrecedentHalsbury’sBulletin of Northern

Ireland Law

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Special losses - Past LossesReasonably easy to ascertainExtra expenditure already incurredLoss of wagesCost of care , therapies etcGratuitous care given by family - Assess?Cost care and apply discount or…Cost loss of wages incurred by carer

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General Principles - Future LossProbabilities,

possibilities and chances

Impossible taskMultiplier/multiplicand

approachMultiplicand - annual

cost or lossMultiplier - duration of

loss

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Choice of Multiplier Two principal

controversies in recent years

Use of actuarial evidence

Appropriate discount rate

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Actuarial EvidenceThe “Ogden Tables”.Formally admissible in 1995Importance of tables can be overstatedTables take account of ordinary mortality

risks in general populationTables only commence at 16yrs oldNo place for actuarial evidence where

expert evidence gives life expectancy

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The Discount RateCourt assumes net rate of return on

investment - the discount for accelerated receipt

lower rate = higher multiplierWells v Wells 1998HL held when assessing future loss ct

should assume damages invested in ILGS“No room for judicial scaling down”

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The Discount Rate£10k loss per annum for 20 yearsIf £200k awarded today pl. over-

compensated£10k for 20th year earns interest from day 1Discount eliminates over-compensationAnnuity approach5% return on capital = £124.6K3% return on capital = £148.8K

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The Discount RateILGS guarantees

rate of return therefore risk-free

HL set rate @ 3%Since reduced to

2.5%Where agreed life

expectancy no further reduction

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Future Losses and ExpenditureFuture CareTherapiesEquipmentTransportEducationHousingLoss of earnings Miscellaneous

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Future CareOften single most substantial head of claimAnnual costs can exceed £50kChoice of expert in care is essentialRegime must be internally and externally

consistentTailored to pl.’s needsExtent of gratuitous care reduces with time

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Future care

Sowden v Lodge 2004 CA - damges awarded for reasonable needs

Per Curiam - if def. asserts local authority care is adequate then must prove same

Good authority that pl. entitled to seek private domilicilary arrangement

More likely to succeed if pl. has retained cognitive function

See also A v B Hospitals and Freeman v Lockett

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TherapiesPhysiotherapy -

expert evidence required

Select expert relevant to client’s needs

Speech Therapy - speech, eating needs

Occupational therapyMusic and art

therapy

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Equipment Tailor report to

pl.’s needsMore than

standard regimeBroad spectrum of

kit.From Computers to

cutleryProvide for

replacement

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TransportSpecially adapted

vehicle may be required

Additional mileageOnly extra costs

recoverableConsider Mobility

element of DLAOT normally

advises

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EducationLegal obligation

to educate up to 16 yrs old

Can claim cost of Education assistant

Costs of education may be adjourned

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Housing and AccommodationConsider where serious and permanent

mobility problemsif injury serious level site, additional

storage and covered access requiredAdaptation of existing home possibleAlternatively purchase or buildPl. is compensated not for extra cost but for

loss of use of capital - Roberts v JohnstonGenerals can finance purchaseClaim for sundry expenditure

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Loss of Earnings1 Where pl. will never workAscertain parental and sibling employmentIf life expectancy unimpaired then

multiplier to retirement age Discount not only for accelerated receipt

but also for vicissitudes of lifee.g. ill health, unemployment, failure to

achieve careerIf life expectancy curtailed then claim lost

years but discount

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Loss of Earnings2 If Unemployed at time of InjurySeek details of work history, qualifications Merits of claim depend on length of period

out of work, reasons for same, what steps pl. took to secure work before injury occurred etc

Must determine when pl. would have returned to work

Depends on local market conditions Difficult where pl. is long term

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Loss of Earnings3 Illegal EmploymentNo tax, NICCareful consideration

to be given to this type of claim

Pl. can be prosecutedCt. may deny claim for

policy reasons See Numan v Folkes

and Dunlop Tyres

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Handicap in Labour MarketSmyth v Manchester type paymentSee also Moelicker v RayrolleEvidence must show difficulties in seeking or

retaining employment Risk of future unemployment to be assessedUnrealistic to have gross multiplier of more

than 5 years - Barstow v A.Roberts

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Residual Earnings capacityIs the pl. capable of work notwithstanding

present unemployment?Hunter v MODReference to Ogden tables Medical evidence crucial - pl. deemed

capable of work40% reduction re Residuals Multiplier

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MiscellaneousCredits to be given

to Def.Lost Years - Phipps

v Brooks Dry Cleaning Services

Interest – 8% as per S33A Judicature Act (NI) 1978

Costs of Managing awards

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Managing Quantum CasesTime consuming and difficultGet a good forensic accountant to draw

together various elements of lossExpert reports must be consistentAvoid double claimsEarly and detailed quantum consultationDevelop a detailed knowledge of the

source materials including case law , Ogden tables etc

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Patrick Mullarkey, Campbell Fitzpatrick Solicitors