Ax v A, B and C

• Jurisdiction: Cayman Islands
• Judge: (Swift, Ag. J.)
• Judgment Date: 29 July 2016
• Court: Grand Court (Cayman Islands)
• Date: 29 July 2016

Grand Court, Civil Division

(Swift, Ag. J.)

AX

and

A, B and C

J.A.D. Jones, Q.C. and K. Grandage for the plaintiff;

H. Robinson for the defendants.

Attorneys: Samson & McGrath for the plaintiff; Mourant Ozannes for the defendants.

Cases cited:

(1) Archer v. UBS (Cayman Islands) Ltd., 2009 CILR 531, considered.considered.

(2) Bodden v. Solomon, 2008 CILR 385, referred to.referred to.

(3) Brown, 2001, Kemp & Kemp, referred to.

(4) C v. W, 2011, Kemp & Kemp, referred to.

(5) Carter-Ebanks v. Jefferson's Pizza Ltd., 2004-05 CILR N [21], applied.applied.

(6) Cassel v. Riverside Health Auth. (formerly Hammersmith & Fulham Health Auth.), [1992] P.I.Q.R. Q168, referred to.

(7) Chin v. Yates, 2014 (2) CILR 196, considered.considered.

(8) Dews v. National Coal Bd., [1988] A.C. 1; [1987] 3 W.L.R. 38; [1987] 2 All E.R. 545, referred to.

(9) Eagle v. Chambers (No. 2), [2004] EWCA Civ 1033; [2004] 1 W.L.R. 3081; [2005] 1 All E.R. 136; [2005] P.I.Q.R. Q2, considered.

(10) Evans v. Pontypridd Roofing Ltd., [2001] EWCA Civ 1657; [2002] P.I.Q.R. Q5, applied.

(11) HS v. Lancashire Teaching Hospitals NHS Trust, [2015] EWHC 1376 (QB), referred to.

(12) Heil v. Rankin, [2001] Q.B. 272; [2000] 2 W.L.R. 1173; [2000] 3 All E.R. 138, referred to.

(13) Housecroft v. Burnett, [1986] 1 All E.R. 332, referred to.

(14) Lowe v. Guise, [2002] EWCA Civ 197; [2002] Q.B. 1369; [2002] 3 W.L.R. 562; [2002] 3 All E.R. 454; [2002] P.I.Q.R. Q9, referred to.

(15) M (A Child) v. Leeds Health Auth., [2002] P.I.Q.R. Q4, distinguished.

(16) Page v. Sheerness Steel Co. plc, [1996] P.I.Q.R. Q26, referred to.

(17) Sarwar v. Ali, [2007] EWHC 1255 (QB), considered.

(18) Simmons v. Castle (Practice Note), [2012] EWCA Civ 1288; [2013] 1 W.L.R. 1239; [2013] 1 All E.R. 334; [2013] C.P. Rep. 3, distinguished.

(19) Sowden v. Lodge, [2004] EWCA Civ 1370; [2005] 1 W.L.R. 2129; [2005] 1 All E.R. 581, applied.

(20) Whiten v. St. George's Healthcare NHS Trust, [2011] EWHC 2066 (QB); [2012] Med. L.R. 1, applied.

(21) Wilson v. Ebanks, 2011 (1) CILR 447, considered.considered.

(22) Yates v. Radtke, 1997 CILR 448, applied.applied.

Legislation construed:

Grand Court Rules 1995, O.80, r.12:

“(1) Where in any proceedings-

(a) money is recovered by or on behalf of, or adjudged or ordered or agreed to be paid to, or for the benefit of, a person under disability; or

(b) money paid into Court is accepted by or on behalf of a plaintiff who is a person under disability, the money shall be dealt with in accordance with directions given by the Court, and not otherwise.

(2) Directions given under this rule may provide that the money shall, as to the whole or any part thereof, be paid into the Court and invested or otherwise dealt with there.”

O.80, r.22(2): The relevant terms of this sub-rule are set out at para. 183.

Health Insurance Law (2013 Revision), s.7: The relevant terms of this section are set out at para. 177.

National Pensions Law (2012 Revision), s.25(1): The relevant terms of this sub-section are set out at para. 157.

s.26(1): The relevant terms of this sub-section are set out at para. 157.

Tort — personal injuries — damages — brain — moderately severe brain damage, causing marked intellectual impairment and epilepsy — CI$238,500

Tort — personal injuries — damages — future care costs — court to determine whether plaintiff's proposed care regime reasonable having regard to his injuries and preferences

Tort — personal injuries — damages — loss of future earnings — plaintiff, with no earning capacity, injured at school age awarded damages for loss of future earnings based on brother's salary

The plaintiff sought damages for personal injuries.

In 1998, the plaintiff, who was then 12 years old, had sustained extensive head and facial injuries in a boating accident. He suffered a severe complicated brain injury. His vision was substantially defective, he suffered from a marked impairment of intellect and personality, and required daily care and assistance. He later developed epilepsy, which was insufficiently controlled at the time of the present judgment. It was accepted that his life expectancy had been reduced by 10 years.

The defendants' liability had been established in earlier proceedings and was not disputed. The court was now required to determine the plaintiff's entitlement to damages.

The plaintiff submitted, inter alia, that (a) in respect of general damages for pain, suffering and loss of amenity, the case fell within Category 3(A)(b) of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases, namely moderately severe brain damage; (b) in respect of damages for future management of his epilepsy, even assuming his condition improved with his current treatment, it was likely that he would suffer lifelong seizures, at a rate of one or two per month, and there was a risk that further surgery would be required; (c) he had lost the capacity to earn; (d) when assessing his lost earnings, it should be assumed that, but for the accident, he would have earned a similar salary to his brother (who, when 29 years old in 2011, had been earning CI$43,200 p.a.); (e) damages for past care and assistance were agreed in the sum of CI$224,286; (f) the plaintiff claimed damages for future care and assistance for (i) the next 2½ years while he lived at home with his father, and (ii) after that time, when living independently, to covercase management, recreational therapy, agency support workers, gratuitous care, and respite/overnight care; (g) he was entitled to recover the loss of the 5% employer's contribution to his pension, up to the age of 65; (h) as he was unable to drive because of his epilepsy, he claimed the cost of taxi transport; and (i) it was proposed that a trust would be set up to administer his award, and he sought the costs of a professional trustee.

The defendants submitted in reply inter alia that (a) the plaintiff's damages for pain, suffering and loss of amenity fell within Category 3(A)(c)(i) of the Judicial College Guidelines, namely moderate brain damage; (b) in respect of damages for future management of epilepsy, the plaintiff should be expected to suffer a seizure every two to three months; (c) although the plaintiff's pre-trial loss of earnings should be assessed on the basis of total loss of earning capacity, in the future he had the capacity to work at a fairly low level; (d) in assessing lost earnings, it should not be assumed that, but for the accident, the plaintiff, who had been underachieving at school before the accident, would have followed his brother's career path; (e) damages for past care and assistance in the sum of CI$224,286 should be discounted by 25% to reflect the fact that the care and assistance had been provided gratuitously by the plaintiff's parents; (f) in respect of the plaintiff's claim for damages for future care and assistance, his proposed care plan was unreasonable because it made no provision for any real attempt at rehabilitation and it defaulted to the most expensive care; (g) it was accepted that the plaintiff was entitled to recover the loss of the 5% employer's contribution to his pension, up to the age of 60 (in accordance with the National Pensions Law (2012 Revision)); (h) as the plaintiff was unable to drive, it would be appropriate for damages to include the additional cost of insuring his car for his carers; and (i) a professional trustee was not required as the award could be managed by the plaintiff's father.

Held, awarding damages as follows:

(1) The plaintiff would be awarded CI$238,500 as general damages for pain, suffering and loss of amenity. The case fell within Category 3(A)(b) of the Judicial College Guidelines, namely moderately severe brain damage. The plaintiff was severely disabled in the sense that there was a marked impairment of intellect and personality with substantial dependence on others and a need for constant professional and other care. His life expectancy had been reduced by 10 years. He had serious sight issues. His epilepsy caused serious, frequent and life-threatening seizures. It was, at present, insufficiently controlled and he might require further surgery. He had no prospect of employment. Based on the Guidelines, the damages should have been in the sum of CI$216,815 but that sum was increased by 10% to reflect the higher cost of living in the Cayman Islands compared with the United Kingdom (paras. 11-17).

(2) The plaintiff would be awarded CI$690,786 for future management of his epilepsy and future medical treatment. As there was disagreement between the experts, who were of equal standing and experience, as to thelikely frequency of the plaintiff's seizures, the court would attempt to find some middle ground and assess the likely rate of seizures at 12 per year after 12 months of drug treatment. The cost of visits to the neurologist would be allowed, as well as of epileptic medication and hospitalization following seizures. There was a risk that further surgery might be required to alleviate the plaintiff's epilepsy, and the court would allow 50% of the projected cost. The costs of continuing psychological and psychiatric treatment would also be allowed. The plaintiff also required frequent eye examinations and special glasses. The total cost of future medical treatment was CI$690,786. These costs would not be reduced to take into account the medical insurance that the plaintiff intended to acquire. The insurance was intended to put the plaintiff into the position he would have been in if the accident had not occurred and to provide cover for him for events that might befall him aside from those resulting from the accident (paras. 24-48).

(3) The plaintiff would be awarded CI$413,966.03 for the loss of past earnings. There was no reason to doubt that he would have overcome temporary personal difficulties at school, would have achieved similar examination results to those of his siblings and would have followed a career path which...