Posted in [Blog] on Wednesday, December 22nd, 2021
The team at Cantillons have a wealth of experience in dealing with catastrophic injury claims. Invariably, the injured person’s home is not suitable for their needs. We assess the injured person’s home situation with the assistance of experts to include an Occupational Therapy expert, who will make recommendations that a new construction will have to be built or an appropriate house adapted to accommodate the injured person and their Carers, together with range of aids and equipment which will assist the injured party in engaging with their activities of daily living. I imagine that the general public would not have any difficulty in accepting that an injured party should be able to live in a specially adapted home that would cater for his/her disability where the injuries have been caused by another’s negligence. However, the accommodation aspect in a legal case is far from straightforward. In order to understand the reason as to why it has become so fraught, one has to have an understanding of a couple of fundamental legal principles in respect of awarding damages (compensation) in negligence claims. Restitutio ad integrum is a Latin phrase which means ‘restoration to original condition’. The “Restitutio Principle” infers that the amount of compensation awarded should put the injured parson in the position he/she would have been had the wrong not been committed. It is uncontroversial to compensate an injured person for medical expenses, care costs, equipment costs. However, where it gets controversial is in the area of accommodation. The reason that it is controversial is because of another legal principle which requires compensation to be fair, reasonable and just to both the injured party and the paying party (the Defendant), putting the injured party in the position he/she would have been in but for the Defendant’s negligence whilst not over-compensating him/her. This is also a fundamental principle in assessing compensation. Under this principle, it is deemed wrong to award the full cost of acquiring the new accommodation as that is considered not restitution but over-compensation. The reason why it would be deemed over-compensation to award the full costs of the purchase of a property is because at death, the injured party’s Estate would benefit from an asset (there was an assumption that property prices inevitably increase over the life time of the injured party), thus, over-compensating the injured party and creating a windfall for the Estate.
The Court of Appeal in a UK case called Roberts v Johnstone (1989 QB 878) decided that the award should be made equivalent to the loss of income which would have been achieved if the capital had been invested, not in the property, but as a “risk-free” investment, thus, removing the windfall argument to the Estate of the injured party. A formula was devised which established that the injured party could recover the capital cost of the new accommodation, along with adaptations, moving and increased running costs, less the capital value of an injured parties existing home (or a notional home that the injured party would have bought). This figure was then multiplied by 2.5%, in line with the discount rate. However, to get an annual return of 2.5% is unrealistic and the injured party would have to invest in high risk (not risk free) investment strategy to get such a return.
In Charlotte Barry (A Minor) suing by her Mother and Next Friend Aisling Campbell -v- The National Maternity Hospital [2016 IESC 41] in the High Court, O’Neill J. considered Roberts v Johnstone. However, he decided that the Plaintiff) was entitled to all of the additional cost of accommodation for the adult portion of her life but credit had to go to the Defendant for the value of the benefit of accommodation provided by her parents during her minority. The extent of that credit was to be limited and he concluded that the benefit was equivalent to one-twelfth of the value of the house. The Defendant appealed the decision. MacMenamin J. in delivering the Judgment of the Supreme Court noted, that while O’Neill Js’ approach was “unorthodox”, “the outcome achieved proper compensation without injustice to either party”. It did not “create any new paradigm for calculation of damages in these cases, [nor] does it create any further burden on indemnifiers.”
On the 9th October 2020, the UK Court of Appeal delivered a Judgment in the case of Swift v Carpenter  EWCA Civ 1295. Lord Justice Irwin stated as follows:
“In the context of modern property prices and a negative discount rate, the formula in Roberts v Johnstone no longer achieves fair and reasonable compensation for an injured Claimant. In my view, it cannot be regarded as full, fair or reasonable compensation to award nil damages in respect of a large established need, on the basis that, if all the relevant predictions hold good over many decades to come, there will arise a windfall to a Claimant’s estate.”
Ultimately, it was decided that the Defendant will give the injured party the additional capital required to purchase the new accommodation minus the value of the reversionary interest which was set at 5%, a figure which the Judge described as “cautious” given the difficulty of predicting future house prices and other economic factors
The Judgments in Barry and Carpenter demonstrate that that Courts recognise that the principle of fair and reasonable compensation had usurped the needs of the Plaintiff. Lord Justice Irwin put it succinctly as follows:
“I recognise the need to avoid a windfall to the Claimant’s estate if that can be achieved without prejudice to the cardinal principle of fair and reasonable compensation. But to withhold all damages for the purpose of avoiding an eventual windfall seems to me to put a secondary principle before a primary principle: to put the cart before the horse…”
At last, the pendulum had swung in favour of the injured.
*In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Pat’s first 10 years of her professional life were in Nursing. She trained and qualified as a Nurse (RGN) in London. On qualifying, she specialised in Intensive Care nursing and obtained a number of post graduate nursing qualifications. Pat worked in various Intensive Care Units in the London area to include Great Ormond Street, the London Chest Hospital and Whipps Cross Hospital where she was appointed to the position of Senior Sister in Intensive Care. Thereafter, Pat studied Law and on obtaining her Law Degree and Solicitors’ Final Examinations she did her apprenticeship with a London firm who had a renowned reputation for medical negligence. On qualifying, Pat remained with the same firm and was made Partner. She was instrumental in the firm obtaining one of the first (if not the first) Legal Aid franchise for medical negligence in the UK. Pat remained with the firm for 13 years. In November 2006, on returning home, Pat joined the Medical Negligence team in Cantillons Solicitors. Pat’s combined nursing and legal knowledge has been invaluable in her practice.
Over the last two decades, Pat has brought a significant number of high value complex catastrophic injury cases to trial to include Cerebral Palsy, Erbs Palsy, acquired brain injuries, maternal death, obstetric injuries and ophthalmic injuries.
- Registered General Nurse (RGN), Senior Sister in Intensive Care 1979-1989
- LLB (Hons), London: 1992
- Solicitors Final Examinations, London 1993
- Solicitor and Partner in London Law Firm from 1995 – 2006