12th February 2021
Michael Rapp and Ian Whitaker of Irwin Mitchell received the judgement of HHJ Bloom on 12 February 2021 arising from a highly contested 4 day trial conducted remotely at Luton CC in January 2021.
The claim arose out of a road traffic accident that occurred on 22nd February 2014. The Claimant suffered a whiplash injury to her neck. Her case was that she had never recovered and her neck problems (as well as less significant jaw and wrist problems) continued to impact on her abilities to work as a dental hygienist as well as on her personal and domestic life.
The Defendant admitted liability but disputed causation and quantum. D argued that C’s accident related injures lasted no more than 9 months and any symptoms thereafter were constitutional and attributable to pre-existing degenerative changes in the cervical spine.
In support of its assertions D relied upon several documents produced 9-10 months post accident including a physio discharge report indicating a purported 90% recovery, a request from C to her GP for a certificate that she was fit to live and work in Bermuda and the subsequent certificate itself.
C sought damages of £265,387. D made a p.36 offer early on of £25,000. C made a part 36 offer of £90,000 in December 2019.
HHJ Bloom awarded C £228,506, thus beating her part 36 offer, C recovered her 10% part 36 bonus as well as over a year of indemnity interest at 10% per annum. Her total award was £255,071, over a 1000% better than D’s offer, and only £10,316 short of her full schedule sum.
Irwin Mitchell also recovered indemnity costs from January 2020 as well as ongoing indemnity interest at 10% per annum until final payment.
The case is useful in several regards:
a) HHJ Bloom was satisfied that a permanent whiplash injury constituted a disability under the DDA and therefore an Ogden 8 calculation was appropriate. She rejected out of hand D’s contentions for a Blamire style award.
b) She also approved and agreed with the authors of Ogden 8 that no significant discount should be made from the disability RF tables just because the disability is less severe.
c) She expressed clear views on the quality of the expert spinal evidence heard, Mr John O’Dowd for the claimant, Mr Robert Carew for the defendant.
d) In her assessment Mr O’Dowd had greater expertise. He has an international presence and a particular understanding of chronic and complex spinal pain.
e) She highlighted the impressive nature of the evidence of Mr O’Dowd and her complete rejection of Mr Carew’s evidence with which she ‘had a number of problems’ including his response in cross examination which she found ‘were not always straightforward and clear’ and that at times ‘he did not appear to want to answer questions in a simple and straightforward manner’. Moreover she found some of his views ‘not at all probable.’
Irwin Mitchell have confirmed that they will be looking to have the case reported. In the meantime Michael can be contacted for copies of the judgment.