QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
B e f o r e :
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MARTIN GEORGE SCALES |
Claimant |
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- and - |
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MOTOR INSURERS' BUREAU |
Defendant |
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Lucy Wyles (instructed by Weightmans) for the Defendant
Hearing dates: 18-21 May 2020
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Crown Copyright ©
Mr Justice Cavanagh:
INTRODUCTION
THE LEGAL BASIS OF THE CLAIM AND THE APPLICABLE LAW
"the compensation body shall compensate the injured party in accordance with the provisions of Article 1 of the second motor insurance directive as it if were the body authorised under paragraph 4 of that article and the accident had occurred in the UK."
OVERVIEW OF THE BAREMO
"A person who by an act or an omission causes damage to another when there is fault or negligence is obliged to compensate the damage caused."
"The compensation for damages will not only comprise the value of the loss suffered but also the loss of earnings of the creditor, save for the exceptions set out in the following articles"
"2.Damage and losses caused to persons, including the value of the loss suffered and the loss of earnings, foreseen, foreseeable or that are known to arise from the causal event, including moral damages, shall be quantified in any event in accordance with the criteria and within the compensation limits set out in the annex of this Act"
(1) Compensation for the time spent in hospital by reference to a defined daily rate;(2) Compensation at a daily rate for temporary disability in the period after discharge from hospital up to the Consolidation date. The rate differed according to whether the day was an "impeded" day or a "non-impeded" day, as defined;
(3) Compensation for specific permanent or on-going symptoms, or sequelae. A number of different categories of symptoms were identified in the Baremo. For each type of permanent symptoms, if they were present, the claimant would be allocated a number of points within a defined range. It was for the judge to decide whether the claimant had the relevant permanent symptoms and then to decide how many points to allocate to the symptoms. As I have said, in a Spanish Court the judge would be guided by the recommendations of the Forensic Medical Examiner. When the judge has allocated points to all of the permanent symptoms, the judge must tot them up and then, using a complicated formula, convert the points into a monetary value for compensation for permanent symptoms;
(4) Compensation for aesthetic or cosmetic damage, again in accordance with a scale and guidance provided in the Baremo;
(5) Further compensation for what is described in Table IV of the Baremo as "Permanent injuries resulting in victim's inability to carry out his or her usual occupation or activity". There are three categories, "Partial permanent incapacity", "Total permanent incapacity" and "Absolute permanent incapacity", each with a different range of compensation in Euros. It is for the judge to decide which of the three categories the victim falls into and to decide on the financial award within the relevant range. These payments are sometimes known as "corrective factors". The two Spanish law experts were agreed that the compensation in this category is not quite the same as general damages, in the English law sense: it covers compensation for general damages, but it may also reflect additional costs, which in English law would be treated as special damages;
(6) Pecuniary compensation for expenditure incurred up to the Consolidation date. There is no general right to recover special damages in the Baremo. However, there is an express right to recover certain categories of losses up to Consolidation. This was provided for by Article 1(6) of the Annex to the Baremo, which stated, at the relevant time:
"1(6) In addition to the compensation established under the Tables, medical, pharmaceutical and hospitalisation costs will be in any case in the amount necessary until the healing of the injuries or their consolidation, provided that the expenditure is duly justified based on the nature of the assistance."(7) Additional compensation for those who fall within the category of "gran invalido" (as defined in Table IV of the Baremo). On a literal reading of the Baremo, gran invalidos, but only gran invalidos, are also entitled to the following:
i. compensation for past and future gratuitous care and assistance in the form of an award for "moral damages to relatives" in addition to the compensation for permanent injuries and temporary disability.ii. compensation for future personal care support in the form of an award for "need of another person's assistance".
iii. compensation for accommodation costs; and
iv. compensation for vehicle adaptation costs.
THE ISSUES THAT I HAVE TO DECIDE
(1) Whether I am required to apply the letter of the Baremo, or whether I have flexibility to award compensation for some heads of damage which are not specifically covered by the express language of the Baremo.(2) Alternatively, is a court entitled to take account of the costs which are not otherwise covered when assessing the award for permanent injuries (the corrective factors)?
(3) What is the date of Consolidation?;
(4) The award of compensation for temporary incapacity prior to the Consolidation date. This will be determined by reference to my decision on the Consolidation date and also as to whether all of the days before it were "impeded" days, or whether some were "non-impeded" days;
(5) The award of compensation for Mr Scales's permanent on-going symptoms;
(6) The award of compensation for aesthetic damage;
(7) Is Mr Scales a gran invalido?
(8) Compensation for financial losses and expenditure prior to, and after, Consolidation (including which types of loss are recoverable);
(9) The appropriate category for permanent injuries or corrective factors and the appropriate award of compensation under this head;
(10) Interest; and
(11) Conclusion.
(1) AM I REQUIRED TO APPLY THE LETTER OF THE BAREMO, OR DO I HAVE FLEXIBILITY TO AWARD COMPENSATION FOR SOME HEADS OF DAMAGE WHICH ARE NOT SPECIFICALLY COVERED BY THE EXPRESS LANGUAGE OF THE BAREMO?
(1) Whether Mr Scales can recover for hospital, pharmaceutical and medical expenses, post-Consolidation;(2) Whether Mr Scales can recover for expenses, pre- and post-Consolidation, which do not come within the meaning of "hospital, pharmaceutical and medical" expenses?; and
(3) If Mr Scales is not a gran invalido, can he nonetheless recover personal care and gratuitous care costs?
The parties' arguments
Discussion
(2) ALTERNATIVELY, IS A COURT ENTITLED TO "BUMP UP" THE AWARD OF GENERAL DAMAGES FOR PERMANENT INJURIES TO TAKE ACCOUNT OF COSTS THAT ARE NOT OTHERWISE RECOVERABLE?
(1) Partial permanent incapacity, defined as "With permanent sequelae that partly restrict usual occupation or activity, without preventing the disabled individual from carrying out his or her essential tasks." The compensation range for this category is from zero to 19,172.54.(2) Total permanent incapacity, defined as "With permanent sequelae that fully prevent carrying out of the disabled individual's usual occupation or activity." The range is from 19,172.55 to 95,862.67.
(3) Absolute permanent incapacity, defined as "With sequelae that prevent the disabled individual from carrying out any occupation or activity." The range is from 95,862.68 to 191,725.34.
" we cannot argue that [the permanent injuries correction factor award] for partial, total or absolute permanent disability only covers pain and suffering and that we can accept that, in a reasonable proportion, it may be intended to cover pecuniary damage caused by the victim's reduced income, but this cannot be accepted as its sole purpose, or even as its principal purpose."
"The lack of structure of the types of damage covered by the evaluation system prevents confirming that this correction factor solely covers moral damage, and allows acceptance that in a reasonable proportion it may cover asset related and damages due to loss of income by the victim, but this may not be accepted as its sole aim, or as a principal [aim]."
CONCLUSION ON ISSUES (1) AND (2)
(1) I cannot award compensation for heads of financial loss of a type that are not specifically provided for under the Baremo, such as medical, pharmaceutical and hospital costs after the Consolidation date, and certain other types of losses;(2) This is so even if the effect will be to under-compensate Mr Scales for his actual losses. I am not free to award compensation in the same manner as it would have been awarded if the accident had happened in England, and I am not free to make good any perceived unfairness in the Baremo, at the relevant time, by awarding compensation on the basis that Mr Scales should receive full recovery of all of his actual losses; but
(3) The potential harshness of this approach is somewhat mitigated by my discretion to increase the award for the appropriate permanent injuries corrective factor to take account of financial losses that would otherwise not be recoverable at all;
(4) However, in so doing, I cannot exceed the maximum figure permitted for the relevant permanent injuries correction factor.
(3) WHAT IS THE DATE OF CONSOLIDATION?
" I notice that more than three years (39 months) have passed in the Index Accident and the normal trajectory of recovery would suggest that Mr Scales is now functioning at his likely permanent level ..
From a solely neuropsychological (cognitive) perspective I believe Mr Scales's date of consolidation is likely to have occurred approximately two years post-Index Accident, in October 2017. During this period of time Mr Scales is likely to have experienced the majority of his organically-mediated recovery, whilst after this date, he is likely to be utilising compensatory strategies, with marginal organic improvement."
(4) THE AWARD OF COMPENSATION FOR TEMPORARY INCAPACITY PRIOR TO THE CONSOLIDATION DATE
The award for days in hospital
The award for impeded days and non-impeded days
Award under this head
(5) THE AWARD OF COMPENSATION FOR MR SCALES'S PERMANENT ON-GOING SYMPTOMS
(1) Neurological symptoms
(2) Impact on smell and taste
(3) Damage to teeth
(4) Dental occlusion
(5) Hearing loss
(6) Loss of vision in the right eye
(7) Loss of vision in the left eye
(8) Psychiatric symptoms
(9) Knee injury
(10) Metalwork (in Mr Scales's leg)
(11) Erectile dysfunction
(12) Urinary incontinence
Total, and monetary value
(1) Neurological symptoms, 35 points;(2) Loss of smell and taste, 10 points;
(3) Damage to teeth, 6 points;
(4) Dental occlusion, 1 point;
(5) Loss of hearing, 12 points;
(6) Loss of vision in the right eye, 24 points;
(7) Loss of vision in the left eye, 5 points;
(8) Psychiatric symptoms, 7 points;
(9) Knee injury, 10 points;
(10) Metalwork, 6 points;
(11) Erectile dysfunction, 12 points;
(12) Urinary incontinence, 8 points;
(6) THE AWARD OF COMPENSATION FOR AESTHETIC DAMAGE
(7) IS MR SCALES A GRAN INVALIDO?
"with permanent sequelae that require the help of other people to carry out the most essential activities of daily life, such as dressing, travelling, eating or similar (tetraplegia, paraplegia, states of chronic coma or vegetative coma, important neurological or neurophysiological sequelae with severe mental or physical disorders, complete blindness etc)."
(1) Mr Scales cannot drive;(2) He cannot cook;
(3) He can only walk for 40 minutes at a time;
(4) He can no longer pursue his sex life;
(5) He has had to give up all of his sports hobbies, including cycling;
(6) He used to do all the DIY around the house but is no longer able to do DIY; and
(7) If Mr Scales had been working at the time of the accident, he would have been unable to return to the open labour market.
"people affected with permanent consequences that they require the help of other people to carry out the most essential activities of daily life such as getting dressed, moving about, eating and the like."
(8) COMPENSATION FOR FINANCIAL LOSSES AND EXPENDITURE PRIOR TO, AND AFTER, CONSOLIDATION (INCLUDING WHICH TYPES OF LOSS ARE RECOVERABLE)
Subrogated insurance costs
Medical, pharmaceutical and hospitalisation costs
Hospital treatment
Other costs and expenses within medical, pharmaceutical and hospitalization costs
Case management
Travel expenses
Equipment
Therapies
Miscellaneous expenses
Third party care/personal care support
Emotional distress and gratuitous care costs/personal support by Mrs Scales
Accommodation/property adaptation costs
Adaptation of own vehicle
Other increased costs
Services
Conclusion on compensation for financial losses and expenditure
Head of expenditure | Amount Awarded |
Subrogated insurance | £26,203.77 |
Case Management | £2,809 |
Travel expenses | £2,393 |
Equipment | £50 |
Therapies | £1,816 |
Miscellaneous expenses | £2,229.62 |
Other increased costs | £130.85 |
Total | £35,632.24 |
(9) THE APPROPRIATE CATEGORY FOR PERMANENT INJURIES OR CORRECTIVE FACTORS AND THE APPROPRIATE AWARD OF COMPENSATION UNDER THIS HEAD
The appropriate category
Discussion
What figure should I award under this heading?
(10) INTEREST
The governing law
The disputed question relating to interest
(1) For the first two years from the date when interest starts running (the dies a quo), interest will accrue at 150% of the current Spanish legal interest rate. The appropriate rate, therefore, is 5.25% in 2015, 4.5% in 2016 and 4.5% in 2017;
(2) Two years after the dies a quo, interest accrues at a rate of 20% per annum.
The parties' contentions
Discussion
" . in assessing this cause for exoneration this Chamber has maintained a restrictive interpretation in response to the sanctioning nature that can be attributed to the rule to the effect of preventing the use of litigation as an excuse to hinder or delay payment to the injured ...
This interpretation rules out that the mere existence of a judicial litigation, the mere fact of starting litigation is a cause that justifies the delay, or allows to presume the reasonableness of the opposition. Litigation is not an obstacle to impose interest on the insurer unless there is an uncertainty or rational doubt about the birth of the obligation to compensate ... In application of this doctrine, the Court has assessed as justified the opposition of the insurer that binds the claimant or insured to a dispute when the judicial resolution becomes essential to clear the doubts about the reality of the incident or its coverage ."
"The insurer's default only disappears when there is uncertainty about the insurance coverage that makes the intervention of the Court necessary due to the discrepancy between the parties".
(11) CONCLUSION
(1) Temporary incapacity pre-Consolidation: 44,497.33;(2) Permanent on-going symptoms: 125,579.16;
(3) Aesthetic damage: 13,165.74;
(4) Absolute permanent incapacity: 191,151.88;
(5) Total: 374,394.11
Plus compensation calculated in Sterling:(6) Financial losses and expenditure: £35,632.24