Manuel Mathieu v Tony Martin Hinds
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Hill |
| Judgment Date | 13 April 2022 |
| Neutral Citation | [2022] EWHC 924 (QB) |
| Docket Number | Case No: QB-2018-004679 |
| Court | Queen's Bench Division |
[2022] EWHC 924 (QB)
Mrs Justice Hill
Case No: QB-2018-004679
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Theo Huckle QC and Kara Loraine (instructed by Powell & Co) for the Claimant
Marcus Dignum QC and Hugh Hamill (instructed by DWF Law LLP) for the Second Defendant
Hearing dates: 8, 9, 10, 11, 14, 15, 16, 17, 18 and 24 February 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a claim for damages for personal injuries arising out of a serious road traffic accident that took place on 28 November 2015. The accident occurred when the Claimant was aged 29 and studying for a Masters' degree in Fine Art at Goldsmiths College, London. He was crossing a road in Lewisham at a pedestrian crossing when he was struck by a moped ridden by the First Defendant which he had stolen earlier that day. The moped was insured by the Second Defendant, but the First Defendant was not insured to ride it. The Claimant sustained a serious brain injury in the accident.
The Claimant issued his claim on 15 November 2018, seeking damages arising from the negligence of the First Defendant. The Second Defendant admitted liability and on 5 June 2019, Master Gidden entered judgment for the Claimant with damages to be assessed. Accordingly, the hearing before me was limited to quantum issues.
The experts agreed that the Claimant has made a very good recovery from his injuries. He has gone on to enjoy a very successful artistic career. He lives in Canada, but his paintings and other works are displayed in galleries and exhibitions around the world including in the USA, the UK and China. However, his case is that the headaches, fatigue and cognitive issues from which he continues to suffer as a consequence of his brain injury have hampered his productivity, such that he is not able to produce and sell as much art as he would otherwise have been able to. The Second Defendant accepts that the Claimant suffered a serious injury for which he is entitled to some damages, but disputes the impact this has had on his productivity (not least because of his prolific artistic output since the accident) and argues that he has not mitigated his loss.
As a result, there were very significant differences between the parties as to the value of the claim. The Claimant's final Schedule of Loss provided before the trial sought damages of CAD (Canadian) $56,028,428, in total, equivalent to £33,617,057. The Second Defendant's primary case was that the Claimant could prove no ongoing loss beyond the end of 2018. The Counter-Schedule of Loss proposed awards for general and special damages, an award of £49,500 for past loss (with certain caveats) and nothing for future loss.
There were also complex disputes as to the tax treatment of any income-related damages to be awarded to the Claimant and a novel claim for provisional damages in relation to dementia. The latter was heavily contested by the Second Defendant not least because the underlying science is complex and controversial.
Accordingly, the key issues for me to determine were:
(i) Whether the impact of the Claimant's injuries on his daily life is as extensive as he claims;
(ii) Whether the Claimant has mitigated his loss by refusing to undertake certain treatment;
(iii) Whether any damages to reflect lost income should be awarded gross to reflect the prospect of the Claimant being taxed on them;
(iv) Whether the Claimant's injuries have hampered his artistic productivity and if so to what extent;
(v) Whether any award to reflect a suffer a shortfall in artistic productivity and thus income should be quantified using a multiplicand/multiplier approach or a ‘ Blamire’ approach; and
(vi) Whether the Claimant should be awarded provisional damages in relation to the chance of developing dementia due to his brain injury.
Over the nine days of evidence, I heard from seven witnesses of fact and seven experts. Several other reports and statements were read. The trial bundle ran to almost 4,000 pages. I heard closing submissions on a tenth day and received further written submissions on the mitigation of loss issue. It is not possible in this judgment to record all the evidence given or to note all the arguments advanced. I have given careful consideration to all the material placed before me, but only refer herein to that which is necessary to resolve the key issues. I have reminded myself throughout that, save as otherwise specified, the Claimant bears the burden of proof.
This judgment is structured as follows:
Section 2: The facts and the evidence in overview (paragraphs 9–49)
Section 3: General damages for pain, suffering and loss of amenity (paragraphs 50–86)
Section 4: Mitigation of loss (paragraphs 87–131)
Section 5: Taxation (paragraphs 132–157)
Section 6: Past losses (paragraphs 158–231)
Section 7: Future losses (paragraphs 232–288)
Section 8: Provisional damages (paragraphs 289–358)
Section 9: Conclusion (paragraphs 359–360 and Appendices 1–3).
The facts and the evidence in overview
The facts
The Claimant was born in Haiti in 1986. He moved to Montreal, Canada, with his family when he was 19 or 20 years old. In 2009 and 2010 he displayed and sold his art through two galleries in Haiti. In 2010, he obtained a Bachelors' degree in Fine Arts and Media Art from the University of Quebec in Montreal.
In 2012 he took part in a group exhibition at Museum Montparnasse in Paris and had a solo exhibition at the MIA Gallery in Montreal. He then won a place on the Masters course at Goldsmiths, one of the leading institutions in the field worldwide. The course began in 2013. In the same year he took part in group exhibitions in Quebec City, Washington DC and France.
In 2014 he took a break from the Goldsmiths course. He had found living in London financially difficult and been offered the chance to appear in a remunerative television show. He worked from a studio in Montreal and participated in four group exhibitions in Montreal and one in Paris. He also went to Aruba for a residency (a placement involving a combination of work and holiday). In January 2015 he returned to Goldsmiths and won the competition for a solo show at the Institute of Contemporary Art (ICA) in London from a group of 200 students.
The accident occurred on 28 November 2015. The Claimant was admitted to hospital where he remained until 11 December 2015. Shortly thereafter he returned to Montreal with his sister, Fedora Mathieu, to recuperate. The ICA show took place during December 2015, but the Claimant was too unwell to attend. He returned to London in mid-January 2016. His Goldsmiths graduation show took place in July 2016.
In early 2017 the Claimant returned to Montreal. He began sharing a studio with Trevor Kiernander and Benjamin Klein. On 27 March 2017 he was involved in a second road traffic accident, in which he sustained a fractured tibia and clavicle, requiring a week in hospital. He was on crutches but was still able to do some work in his studio. In April 2017 he had an exhibition in Montreal, though Maruani Mercier. In the summer of 2017 the Claimant started a relationship with Natalia Correa. During this year, he was taken on by the Tiwani Gallery in London and had a solo show there, entitled ‘Truth to Power’. He also began to work with other gallerists, namely Hugues Charbonneau in Montreal and Kavi Gupta in the USA. The latter is particularly well-regarded in the art world for identifying and promoting new talent.
In 2018 he had a solo “booth” at the Armory show in New York, a solo show for Mr Gupta in Chicago, two solo shows at Art Brussels in Montreal and five art fairs and group exhibitions. Hadrien de Montferrand, a further gallerist, also began working with the Claimant in 2018.
In April 2019 he attended a one-month residency in Sonoma, USA, with Pamela Joyner, a well-known figure in the art world. Later that year she purchased one of his works that had been exhibited in a group show at a Miami museum. In July 2019 he began a 7-month residency in Stuttgart, Germany.
In March 2020 he had a solo exhibition at the Maruani Mercier gallery, but due to the impact of the Covid-19 pandemic there was no opening and the show closed early. Due to the Covid-19 lockdown the Claimant's studio in Montreal was closed throughout April 2020. In May 2020 he started a year-long residency at the Darling Foundry in Montreal. During the remainder of 2020 he participated in several shows in Beijing, Belgium and Canada. These included the ‘Survivance’ exhibition at the Museum of Fine Arts in Montreal and a show at the Power Plant in Toronto. In 2020 his relationship with Ms Correa ended and he started living at his studio.
In 2021, he undertook a further residency in Sonoma and participated in shows in Montreal, New York, Calgary, Los Angeles, Toronto, Belgium, London and Beijing. The Gagosian Gallery in London, considered to be one of the very best gallery groups in the world, featured two of his pieces in the ‘Social Works II’ exhibition.
In early 2022, just before the start of the trial, the Claimant secured a show and representation with the London-based gallerist Pilar Corrias, in preference to White Cube with whom he had also been in discussions. He also arranged to conduct a video interview with Gagosian, who are showing more of his...
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