Interim damages and mitigation considered by claimants at risk of dementia: Clyde & Co

The High Court considered reducing losses and provisional damages in relation to the likelihood of developing dementia after the plaintiff suffers a traumatic brain injury.

The judge found that the defendant did not prove that the plaintiff had acted unfairly, nor did he prove that he could not mitigate his loss. However, when it comes to the issue of risk of dementia, the defendant’s evidence is preferred, and the judge shows that plaintiffs have a more probable balance of probabilities that traumatic brain injury leads to the development of dementia. I decided that I couldn’t do it. ..

Mathieu v (1) Hinds (2) Aviva PLC [2022] EWHC 924 (QB)

Background

In November 2015, the petitioner was crossing the road at a pedestrian crossing when he was attacked by a moped driven by Tony Hind. Aviva (defendant) insured the moped, but Hind who stole it was not insured to drive the moped. Defendant acknowledged liability, but Quantum remained a problem and the subject went to trial.

Plaintiff suffered serious brain damage in the accident, but experts agree that he had a very good recovery from his damage. His case is that he continues to suffer from headaches, malaise and cognitive problems that hinder his productivity as an artist. As a result, he cannot produce and sell as much art as he would otherwise have done. The petitioner has claimed more than £ 33.6 million in damages.

Defendants challenged plaintiffs’ productivity impact and claimed they did not mitigate his losses. Defendant’s loss counter schedule proposes £ 49,500 for past losses and nothing for future losses.

The complainant provided evidence of suffering from a variety of neuropsychological problems, including memory and concentration problems. Fatigue; PTSD symptoms; anxiety, depression, loss of self-confidence, insomnia. There was consensus among experts that the complainant’s brain injury was among the most serious categories of the Mayo Classification System (TBI) for traumatic brain injury.

Loss reduction

Defendants alleged that plaintiffs could not mitigate his losses because he refused to take medicine to help with his headache and was unable to receive the full recommended course of psychotherapy.

Experts agreed that amitriptyline has been tried and errored as a preventative drug for headaches. However, plaintiffs refused the trial because the drug could cause fatigue, drowsiness, and disrupt the creative process. He said he refused to engage in the “accompanying lethargy.” He confirmed that he would try the drug if there were no side effects.

Mrs. Justice Hill described the petitioner as “a person whose reason for existence is his art.” Therefore, I could understand his concern that medicines would undermine his creativity.

In each case Payzu v Saunders [1919] Whether the claimants have reduced their losses is a matter of fact, not law. Hill J found that “it is difficult to find out that the petitioner is acting unfairly” because one of the experts thought that the petitioner was acting reasonably. The judge concluded that the plaintiff “decided carefully on this issue. His anxiety about it is understandable.” Therefore, she found that the defendant was not responsible for proving that the plaintiff was acting unfairly. In addition, she said she was not responsible for showing how taking the drug would make a difference, even if she discovered that the petitioner had acted unfairly.

Regarding the further fatigue management session, the defendant did not provide “clear evidence of how the further fatigue management session at this stage would affect the plaintiff’s loss”, so the defendant’s loss mitigation The lawsuit also failed. Hill J accepted the petitioner’s expert evidence that the petitioner “successfully” his opinion.

Risk of dementia

The petitioner argued that provisional damages should be provided for the risk of dementia resulting from traumatic brain injury.Scott Baker J Wilson vs. Ministry of Defense [1991] We have identified three questions to answer.

1) Is it possible for the complainant to develop the illness or exacerbation in question?

2) Is the illness or worsening serious?When

3) If so, should the court exercise its discretion to make a provisional damages ruling?

After reviewing the evidence before her, Mrs. Justice Hill preferred the evidence of the defendant’s expert. She said, “The association between two things does not necessarily mean that one caused the other,” especially in this case, “a clear understanding of what the causative” root “is really.” I agree that there is no such thing.

In the current state of science, the petitioner could not show the balance of probabilities “there is more than a fantasy opportunity for TBI to lead to the development of dementia.”Therefore, the petitioner was unable to meet the following requirements: Wilson Question 1 and this aspect of his claim failed.

Judges have determined that post-TBI dementia cannot be clearly diagnosed and that “based on current scientific evidence, post-TBI dementia that develops is not” reasonably clear “.” I continued. In the current state of scientific knowledge, post-TBI dementia is often inseparable from the results of the first TBI. In addition, she accepted the defendant’s defense counsel that post-TBI dementia resembles osteoarthritis or a particular mental state. Kotula v EDF Energy Networks PLC [2011] Inappropriate for provisional damages.

However, the petitioner was given provisional damages for an increased risk of developing epilepsy and was rated by experts at 5% to 8%.

Other issues

Defendants assess past and future loss of income Evacuation approach. However, Hill J said the judge should be “slow to rely on the rough Bramia approach” and instead use the traditional approach that was appropriate here.

The petitioner claimed a loss of gross income because he claimed to be taxable in accordance with Canadian and Quebec tax laws. Hill J stated that the taxable position was unclear and therefore gave plaintiffs total loss income.

Conclusion

Mrs. Justice Hill said that the plaintiff “needs to take more regular breaks than if he weren’t”, so producing less art than he has for the accident, and the accident ” The plaintiff and his career admitted that it had a life-changing impact. ” “

He was awarded £ 3,178,741.64 in damages, of which more than £ 2.1 million was for future loss income.A detailed breakdown of damages can be found in the judgment Here..

What can i learn

• This is the second time the defendant’s allegations of failure to mitigate have been dismissed in a recent High Court decision on brain damage.of Standsfield vBBC [2021]But similar discussions proceeded, but this time they did not follow the medical advice for treating with antidepressants.
• like StandsfieldDefendant’s allegations here do not exempt the burden and show that plaintiff’s failure to mitigate is unreasonable.
• In both cases For the time being Cases of palliative failure have been established, but it has not been demonstrated how taking the recommended medications alleviated the claimant’s symptoms so that palliative failure could be quantified (established). If so).
• A practitioner wishing to carry out such a debate should have clear evidence of both the claimant’s behavior or omission (irrationality) and the consequences that the claimant allegedly reduced his loss. I recommend it.
• As in the case of Hibberd-Little v Carlton [2018] The petitioner argued that a provisional damages ruling should be made based on the complainant’s risk of developing dementia after TBI.like Hibberd-Little This was rejected, but it was confirmed that there was a clearer and more rational basis, and based on the available evidence, it was not possible to establish a fancy chance of developing post-TBI dementia. it was done.
• However, defendants need to be aware of this ever-evolving territory. Defendants’ own experts may accept future diagnostic progress and lead to clearer evidence of post-TBI dementia.
• Therefore, as science continues to evolve, this type of debate is likely to continue to be pursued by plaintiffs.