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12.3 Remedies Lecture - Hands on Examples

Question:

Gregory, 22, is involved in a cycling accident. He was hit by a driver who was drunk and speeding, and came across onto Montgomery’s side of the road, hitting him. This is his third drunk driving offence. The accident resulted in the loss of Gregory’s left leg. The defendant admits liability, and so the only question facing the court is that of damages. Gregory comes to the court citing a number of costs he has incurred.

Before the accident, Gregory was a keen cyclist, and paid dues to a local velodrome. He is advised by his doctor that cycling will be a good way to rehabilitate the remaining tissue in his leg – something which he should continue to do for the rest of his life, if possible. He thus claims for his velodrome dues, and the cost of adapting his velodrome bicycle to work with his new prosthesis.

Gregory’s new prosthesis was purchased privately. It is a middle-of-the-range model – the company he has used offer cheaper models (with significant drawbacks) and more expensive models (which are built for increased longevity and comfort.) The same prosthesis is available on the NHS, for free.

Greg works from home, and cycles everywhere that he needs to go. Nonetheless, he purchases a car adapted to work with his prosthesis.

Gregory used to enjoy jogging, and is told by his doctor that this is something that he will no longer be able to do, owing to his injury.

Advise Gregory on the calculation of his damages. Assume he has a valid claim.

Answer:

Gregory’s claim will be constructed of a number of different categories of damages. The first will be special damages – those which can be specified at the time of the judgement. Gregory will have a claim for loss of limb, as a permanent one-off ‘cost’ under this heading. The precise value of this will be calculated using the Ogden tables. Also included in special damages will be those medical expenses which he has incurred as a result of his injury. This will include any hospital fees he might have incurred, and will include his new prosthesis. As per Donnelly v Joyce [1973] QB 454, Gregory will be able to claim for any reasonably incurred medical expenses. His middle-of-the-range prosthesis fits into this category. Whilst it is not the cheapest available, Gregory is not obliged to use the cheapest option: merely one which is not unreasonably excessively expensive. Thus in Rialas v Mitchel [1984] 128 SJ 704 the claimant was able to receive damages for a more expensive, yet still reasonable treatment option. Whilst the same prosthesis is available for free on the NHS, this will not have a bearing on the court’s judgement of reasonableness, as per s.2(4) of the Law Reform (Personal Injuries) Act 1948. 

Regarding the cost of adapting Greg’s velodrome bicycle, this will be a valid claim – without the injury, Greg would not have to adapt his bicycle, and thus it is a result of the accident and Greg will be able to claim for it. It is unlikely that Greg will be able to claim for the cost of his new car. There is nothing to indicate that its use is medically indicated, and so it cannot be considered a reasonable cost. However, Greg will be able to claim for any extra cost incurred in buying a vehicle which is adapted to his leg. Also included in special damages will be the cost of any damage to Gregory’s bicycle which occurred as a result of the accident.

The second category of damages will be general damages, including those prospective costs that Gregory will incur. This will include any reasonable medical expense that he will have to pay in the future, as in Lim Poh Choo v Camden and Islington AHA [1980] AC 174. This will be predicated on Gregory demonstrating that he intends to use private medicine, although this is unlikely to form much of an obstacle to his claim, as in Woodrup v Nichol [1991] PIQR 104.

Although cycling in the velodrome is linked to Gregory’s rehabilitation, these fees will not be recoverable. Since Gregory was paying the fees before the accident, and there is nothing to indicate that he would have stopped paying them, this cannot be described as an additional cost. This is in line with the precedent set in Cassell v Riverside Health Authority [1992] PIQR Q168. Gregory will also be able to claim for loss of amenity, as in H West & Son Ltd v Shepherd [1964] AC 326. Since Gregory appears to be a relatively active person, he will have lost significant amenity because of the accident, and will be able to claim for this. As well as the loss of amenity associated with loss of limb, Gregory is now prevented from enjoying a favourite pastime of jogging – similar to the loss of ability to fish, in Moeliker v A Reyolle & Co Ltd [1977] 1 All ER 9. This will thus be something Gregory can claim for.

Allowances will be made for any future cost is one which will occur over the course of his lifespan (so Greg will need to adapt all future bicycles and cars, for example). General damages which fit this description will be multiplied based on the predicted lifespan that Gregory has left. Since he is relatively young (and fit) and his injury has not affected his lifespan, this will be on the longer, rather than the shorter, side.

Finally, there is a slight possibility that exemplary damages might be awarded, as per Thompson v Metropolitan Police Commissioner [1998] QB 498. The driver who injured Gregory was acting exceedingly irresponsibly, and so the court might opt to provide Gregory with an additional award to reflect the defendant’s poor conduct. This is at the discretion of the court however, so is by no means guaranteed.


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