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Patrick Mullarkey, Campbell Fitzpatrick Solicitors.

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Presentation on theme: "Patrick Mullarkey, Campbell Fitzpatrick Solicitors."— Presentation transcript:

1 Patrick Mullarkey, Campbell Fitzpatrick Solicitors

2 General Principles Restitutio in Integrum Not possible where injury is severe Intention of special damages to compensate for extra costs and losses Minimise effect of injury, maximise quality of life Reasonable expenditure, not desirable 11/06/2014Calculating damages2

3 General Principles Levels of Damages have increased - 3 factors influence value 1 Severity of injury 2 Life expectancy 3 Quality of legal representation 11/06/2014Calculating damages3

4 Heads of Damage - Generals Physical pain and suffering Awareness of accelerated death Sexual dysfunction Loss of joy in work Loss of holiday Loss of sporting activity Impairment of housekeeping abilities Psychological problems 11/06/2014Calculating damages4

5 Calculating Generals Green book Kemp and Kemp Butterworths Personal Injury Litigation Service Precedent Halsburys Bulletin of Northern Ireland Law 11/06/2014Calculating damages5

6 Special losses - Past Losses Reasonably easy to ascertain Extra expenditure already incurred Loss of wages Cost of care, therapies etc Gratuitous care given by family - Assess? Cost care and apply discount or… Cost loss of wages incurred by carer 11/06/2014Calculating damages6

7 General Principles - Future Loss Probabilities, possibilities and chances Impossible task Multiplier/multiplicand approach Multiplicand - annual cost or loss Multiplier - duration of loss 11/06/2014Calculating damages7

8 Choice of Multiplier Two principal controversies in recent years Use of actuarial evidence Appropriate discount rate 11/06/2014Calculating damages8

9 Actuarial Evidence The Ogden Tables. Formally admissible in 1995 Importance of tables can be overstated Tables take account of ordinary mortality risks in general population Tables only commence at 16yrs old No place for actuarial evidence where expert evidence gives life expectancy 11/06/2014Calculating damages9

10 The Discount Rate Court assumes net rate of return on investment - the discount for accelerated receipt lower rate = higher multiplier Wells v Wells 1998 HL held when assessing future loss ct should assume damages invested in ILGS No room for judicial scaling down 11/06/2014Calculating damages10

11 The Discount Rate £10k loss per annum for 20 years If £200k awarded today pl. over-compensated £10k for 20th year earns interest from day 1 Discount eliminates over-compensation Annuity approach 5% return on capital = £124.6K 3% return on capital = £148.8K 11/06/2014Calculating damages11

12 The Discount Rate ILGS guarantees rate of return therefore risk-free HL set 3% Since reduced to 2.5% Where agreed life expectancy no further reduction 11/06/2014Calculating damages12

13 Future Losses and Expenditure Future Care Therapies Equipment Transport Education Housing Loss of earnings Miscellaneous 11/06/2014Calculating damages13

14 Future Care Often single most substantial head of claim Annual costs can exceed £50k Choice of expert in care is essential Regime must be internally and externally consistent Tailored to pl.s needs Extent of gratuitous care reduces with time 11/06/2014Calculating damages14

15 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 11/06/2014Calculating damages15

16 Therapies Physiotherapy - expert evidence required Select expert relevant to clients needs Speech Therapy - speech, eating needs Occupational therapy Music and art therapy 11/06/2014Calculating damages16

17 Equipment Tailor report to pl.s needs More than standard regime Broad spectrum of kit. From Computers to cutlery Provide for replacement 11/06/2014Calculating damages17

18 Transport Specially adapted vehicle may be required Additional mileage Only extra costs recoverable Consider Mobility element of DLA OT normally advises 11/06/2014Calculating damages18

19 Education Legal obligation to educate up to 16 yrs old Can claim cost of Education assistant Costs of education may be adjourned 11/06/2014Calculating damages19

20 Housing and Accommodation Consider where serious and permanent mobility problems if injury serious level site, additional storage and covered access required Adaptation of existing home possible Alternatively purchase or build Pl. is compensated not for extra cost but for loss of use of capital - Roberts v Johnston Generals can finance purchase Claim for sundry expenditure 11/06/2014Calculating damages20

21 Loss of Earnings 1 Where pl. will never work Ascertain parental and sibling employment If life expectancy unimpaired then multiplier to retirement age Discount not only for accelerated receipt but also for vicissitudes of life e.g. ill health, unemployment, failure to achieve career If life expectancy curtailed then claim lost years but discount 11/06/2014Calculating damages21

22 Loss of Earnings 2 If Unemployed at time of Injury Seek 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 11/06/2014Calculating damages22

23 Loss of Earnings 3 Illegal Employment No tax, NIC Careful consideration to be given to this type of claim Pl. can be prosecuted Ct. may deny claim for policy reasons See Numan v Folkes and Dunlop Tyres 11/06/2014Calculating damages23

24 Handicap in Labour Market Smyth v Manchester type payment See also Moelicker v Rayrolle Evidence must show difficulties in seeking or retaining employment Risk of future unemployment to be assessed Unrealistic to have gross multiplier of more than 5 years - Barstow v A.Roberts 11/06/2014Calculating damages24

25 Residual Earnings capacity Is the pl. capable of work notwithstanding present unemployment? Hunter v MOD Reference to Ogden tables Medical evidence crucial - pl. deemed capable of work 40% reduction re Residuals Multiplier 11/06/2014Calculating damages25

26 Miscellaneous Credits 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 11/06/2014Calculating damages26

27 Managing Quantum Cases Time consuming and difficult Get a good forensic accountant to draw together various elements of loss Expert reports must be consistent Avoid double claims Early and detailed quantum consultation Develop a detailed knowledge of the source materials including case law, Ogden tables etc 11/06/2014Calculating damages27

28 Patrick Mullarkey, Campbell Fitzpatrick Solicitors


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