Bodden v Solomon

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 05 September 2008
• Court: Grand Court (Cayman Islands)
• Date: 05 September 2008

Grand Court

(Henderson, J.)

BODDEN

and

SOLOMON

A. Hogarth, Q.C., and P.A.K. Broadhurst for the plaintiff;

N. Garnham, Q.C., and S. McCann for the defendant.

Cases cited:

(1) Eagle v. Chambers, [2005] 1 All E.R. 136; [2004] EWCA Civ 1033, referred to.

(2) Massey v. Tameside & Glossop Acute Services NHS Trust, [2007] EWHC 317 (QB), referred to.

(3) Page v. Plymouth Hospitals NHS Trust, [2004] 3 All E.R. 367; [2004] EWHC 1154 (QB), referred to.

(4) Rialis v. Mitchell(1984), 128 Sol. Jo. 704, referred to.

(5) Roberts v. Johnstone, [1989] Q.B. 878; [1988] 3 W.L.R. 1247, referred to.

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

(7) Wakeling v. McDonagh, [2007] EWHC 1201 (QB), referred to.

Tort-personal injuries-damages-future loss-details of accommodation costs, care costs and medical expenses, considered in case of extreme injury with brain damage

Tort-personal injuries-damages-loss of future earnings-no necessary requirement to adjust Ogden multiplier for loss of future earnings to accommodate differentials other than mortality (e.g. unemployment, illness, accident)-Odgen suggestion to do so based on different socio-economic conditions from those in Cayman Islands-burden on defendant to show such adjustments necessary

The plaintiff sought damages for personal injuries caused by the defendant”s negligent driving.

The plaintiff, a 41.8 year-old assistant carpenter, was hit by the defendant”s car while out walking and suffered severe injuries, including the loss of his left leg, a blood clot and a ventral hernia (both of which required extensive surgery) and brain damage. As a result of those injuries, the plaintiff was left permanently incapacitated, with decreased executive dysfunction and learning and language difficulties, and therefore in need of constant care. The Grand Court found both parties to have been negligent, and apportioned 80% of the liability to the defendant and 20% to the plaintiff. The proceedings on liability are reported at 2004–05 CILR 397. The plaintiff then applied for the assessment of damages.

He submitted that (a) he could expect to live for 29.6 more years and, but for the accident, he would have worked until aged 65, therefore the multipliers to be used in calculating damages should be 19.67 in respect of life expectancy and 16 in respect of his working life; (b) there was no necessary requirement in the Cayman Islands that the multipliers taken from the Ogden Tables should be adjusted in order to reflect differentials such as early unemployment, illness and accident, as the suggestion to do so, contained within the research accompanying the tables, was based on different socio-economic conditions from those in the Cayman Islands; (c) although it was for the defendant to show that such adjustments were necessary, which he had failed to do, he (the plaintiff) would nevertheless concede a slight reduction to the multipliers to reflect those differentials; (d) until now he had shown himself to be an industrious worker and was rarely unemployed; but for the accident he would have continued to work

hard and progress in his career to become a top carpenter; he was therefore entitled to an award for the loss of future earnings which reflected that, based on the multiplier of 16; (e) in respect of the cost of future care, he could, and was entitled to, choose how and where he was cared for and did not have to prove that his choice was reasonable-rather the defendant had to show that it was unreasonable, without reference to extra cost; he therefore wished to be cared for by a licensed practical nurse and his wife, in the comfort of his own home; (f) he was also entitled to certain future costs, currently in dispute, such as the cost of anti-depressant care for the plaintiff”s wife; two types of prosthetic limb for the rest of his life; his case manager; certain rehabilitation activities; a dietician; and the future services of certain health care specialists, such as physiotherapists; and (g) his requirements in respect of living conditions had fundamentally changed as a result of the accident and he now needed to purchase or build a new home, for which he should be adequately remunerated.

The defendant submitted in reply that (a) although he conceded the multiplier of 19.67 in respect of the plaintiff”s life expectancy, the multiplier for the plaintiff”s working life as proposed in the Ogden Tables should be reduced by 14, to take account of certain differentials other than mortality, such as the chance of unemployment, illness and accidents; the multipliers in respect of the plaintiff”s working life should therefore be 13.96 for a retirement age of 60, and 16.75 for a retirement age of 65; (b) the plaintiff”s wish to receive his care at home was unreasonable, as there existed a suitable local government-run care facility (‘the Sunrise Centre’), which would be substantially less expensive than the cost of a round-the-clock home carer; (c) the plaintiff was only entitled to appropriate and reasonable future costs, and was not entitled to, e.g., the significant extra cost of a spare prosthetic limb; and (d) while, since the accident, the plaintiff”s needs in respect of accommodation had changed and it was now appropriate for him to be able to build or buy a new house, it would be wrong for him to receive the full cost of doing so, and therefore the cost of future accommodation should be calculated based on 2.5% of the cost of building a new house ($250,000), over the course of his lifetime, less the amount that he would have incurred for accommodation during that period had the accident not happened.

Held, making the following orders:

(1) The defendant would be ordered to pay the plaintiff the sum of $2,551,824.01, which was calculated with reference to a multiplier of 19.67 in respect of the plaintiff”s life expectancy (a further 29.6 years), and one of 16 in respect of the plaintiff”s expected retirement age of 65. Although the Ogden Tables, and the research associated with them, suggested somewhat different multipliers and advocated adjustments to be made to accommodate differentials other than mortality (such as unemployment, illness and accidents), that UK-based research was dependent on different socio-economic conditions from those in the Cayman Islands.

For instance, there were lower rates of unemployment here than in the United Kingdom and a much less extensive social welfare network, and the defendant therefore bore the burden of showing that such adjustments were necessary, which he had not done. The plaintiff himself, however, suggested a multiplier of 16 in respect of his expected retirement age in order to reflect those differentials, which was adopted by the court (paras. 4–6).

(2) The plaintiff would receive $631,981.35 in respect of loss of future earnings. During his working life as an assistant carpenter he had proved himself to be an industrious worker, who was rarely unemployed. It could be assumed that he would have continued to work hard and would have progressed in his career to become a top carpenter, earning $13.50 an hour until 2014 (5.67 years); which, assuming a 45 hour week, plus overtime of 5 hours a week at 1.5 times the basic wage, for 52 weeks a year, equalled an annual salary of...