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Ben Casey secured an award of over £430,000 on behalf of a claimant at trial. The Claimant beat his own Part 36 offer, the consequences of which resulted in a final judgment sum in excess of £475,000.
The Claimant was a cyclist who sustained serious open leg fractures when he was hit by a bus. In relation to General Damages, the Court accepted that the injury fell within the upper bracket of the “moderate” category of severe leg injuries in the Judicial College Guidelines (JCGs), on account of the disfiguring scarring. The Court also accepted the Claimant’s argument that the JCG guideline figures should be increased for inflation between editions, in line with Lambert, J’s recommendation in the introduction to the 16th Edition.
The Defendant argued unsuccessfully that the Claimant had failed to mitigate his losses because of an overreliance on a crutch and because of his failure to work longer hours on his return to work. The Court accepted that the Claimant had in fact already returned to full time working hours, as per the ASHE statistics definition of more than 30 hours paid work per week. This was notwithstanding the fact that pre-accident he had averaged 55 hours per week across two jobs.
In relation to future loss of earnings/loss of earnings capacity, the Court accepted the Claimant’s primary case that he was disabled for the purposes of DDA 1995. It rejected the Defendant’s suggested “broad brush” approach, in which it argued for a lump sum Smith v Manchester award, preferring the “empirical” method set out in the guidance notes to the Ogden Tables. The award for future loss of earnings/loss of earnings capacity was based on a disabled reduction factor over the first 3 years during which time further surgery and rehabilitation was anticipated. Thereafter, the expert evidence suggested that there was a 50% chance of improvement. If such improvement occurred, the Claimant’s working capacity would improve and he may no longer meet the disabled criteria. The Court therefore adopted a Conner v Bradman mid-point reduction factor after the initial 3 year period. The ultimate award for future loss of earnings/loss of earnings capacity exceeded £270,000.
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