Martin George Scales v Motor Insurers' Bureau
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 02 July 2020 |
| Neutral Citation | [2020] EWHC 1747 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: C90BM293 |
| Date | 02 July 2020 |
[2020] EWHC 1747 (QB)
Mr Justice Cavanagh
Case No: C90BM293
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Matthew Chapman QC (instructed by Irwin Mitchell) for the Claimant
Lucy Wyles (instructed by Weightmans) for the Defendant
Hearing dates: 18–21 May 2020
If this 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 quantum hearing in a personal injury case, in which I have to apply principles of Spanish law in order to assess the damages that are payable to the Claimant (“Mr Scales”).
In October 2015, Mr Scales was an extremely fit and healthy man, aged 69. He was retired. He and his wife had a holiday villa in Southern Spain, where they spent several months a year. One of Mr Scales's main hobbies was cycling. On 23 October 2015, Mr Scales and a group of friends were cycling on the Camino de la Hoya in Almeria. Mr Scales and another of the cyclists were struck by a car which was travelling in the opposite direction. The car, which was being driven by Ms Annika Elena van der Plujim, was driving on the wrong side of the road. Ms van der Plujim did not stop at the scene.
Mr Scales was gravely injured. He was airlifted to hospital from the scene of the accident and spent the next weeks in a coma. He was flown back to the UK and spent a total of 134 days in hospital. He spent time in hospital in Spain, and then in Coventry and Leicester, and underwent a number of operations. I will refer to his injuries and, in particular, to the consequences of them, in greater detail later in this judgment, but, in short summary, he suffered, amongst other injuries, traumatic brain injuries, facial fractures, sight and hearing problems, loss of dentition, and a highly comminuted fracture of the left tibia. One of the doctors treating Mr Scales told his wife that if he had not been so fit at the time of the accident he would have died.
Mr Scales is now 74 years old. He walks with a stick and has restricted sight. He no longer drives. He cannot walk for more than 45 minutes at a time. He suffers from mild cognitive difficulties, and his wife does not feel that she can leave him alone in the house for more than two hours at a time. He is no longer able to undertake many of the activities that he previously enjoyed. He can do some things around the house, such as making a hot drink or a snack, and helping with the vacuum cleaning, but he needs constant supervision from his wife. Not surprisingly, he sometimes gets upset and frustrated with his situation.
I have been provided with a witness statement from Mr Scales. By agreement between the parties, he did not give evidence before me. Mrs Scales provided a witness statement and gave evidence. It is appropriate to record that Mr Scales has faced his changed circumstances with great fortitude. His later retirement years are very different, and far less rewarding and fulfilling, than they would have been if he had not been involved in the accident. Mrs Scales has, since the accident, devoted herself to caring for her husband, and has done so with great love, patience, and determination. It is no exaggeration to say that she has given up her life to care for him, and is missing out on the fulfilling and pleasurable retirement years that she would otherwise have enjoyed.
The Defendant (“the MIB”) is involved in these proceedings because Ms van der Plujim was uninsured and, in accordance with the relevant EU Directives, the MIB stands in the shoes of the Spanish Guarantee Fund, the Consorcio de Compensacion de Seguros (“the CCS”), which is the Spanish equivalent of the MIB.
Proceedings were issued in this case on 19 October 2016. Liability was not admitted, and a trial on liability took place before HHJ David Cooke, sitting as a Judge of the High Court, on 24 and 25 April 2018. The judge found in favour of Mr Scales on liability, on a 100% basis, with no reduction for contributory fault.
Mr Scales was retired at the time of the accident and so there is no claim for loss of earnings. Mr Scales does not seek periodical payments and so the issues before me focus on the damages that should be awarded to Mr Scales for his injuries, and the consequences of his injuries, and (to the extent that such damages are available under Spanish law) damages to reflect his past and future costs and expenses.
It is common ground between the parties, that, for reasons I will shortly explain, Spanish law applies to the assessment of damages in this case. It is also common ground that I should endeavour to apply the Spanish law of damages for road traffic cases in Spain in the same way that a Spanish court would do so.
The principles and rules that determine the measure of damages in road traffic accident cases in Spain are set out in legislation that is known as the Baremo (which means “tariff”). The approach taken by Spanish law at the time of the accident to the assessment of damages in such cases was very different to the approach taken in English law. There is no clear distinction between general and special damages in Spanish law, as there is in English law. Moreover, it is fair to say that the version of the Baremo that was in force at the time of Mr Scales's accident was somewhat ungenerous to Claimants, and its provisions were confusing and difficult to follow (even for Spanish lawyers). In particular, again on the face of it, it was not drafted with a view to providing full compensation for what would be called in England “special damages”. Indeed, Mr David Sanchez Almagro (“Mr Sanchez”), the expert in Spanish law who was instructed on behalf of Mr Scales, referred to the rules then in place as “bizarre”. The Baremo was substantially revised, with effect from 1 January 2016, to change some of the rules which had been regarded as unfair and unsatisfactory, and I am told by the Spanish law experts that the current version of the Baremo is regarded as a great improvement on its predecessor, and is more generous to claimants. However, it is not in dispute that the version of the Baremo which must be applied in the present case is the version which applied on 23 October 2015, and therefore the one that applied before the reforms which took effect in 2016. Unless otherwise stated, when I refer in this judgment to “the Baremo”, I should be understood to be referring to the version of the Baremo that was in place at the time of the accident. This was the Baremo, as amended by Act 7/2007 of 11 July 2007, which entered into force on 1 August 2007 and was derogated (ie repealed and replaced) on 01.01.2016 by Act 35/2015.
There are a number of major disagreements between the parties as to the meaning and effect of the Baremo, and as regards how it should be applied in the present case. For example, the parties disagree about the extent to which there is scope for a judge to adjust his or her award under the various headings in the Baremo in order to provide a Claimant with full restitutio in integrum, or, at least, to minimise the extent to which a rigorous and literal application of the Baremo rules would result in undercompensation.
Even where the parties agree on the meaning and effect of rules in the Baremo, there is a disagreement between the parties and their Spanish law experts on the way that the relevant rules should be applied to Mr Scales's case. So, for example, various consequences (at least potentially) flow from the date of “Consolidation”, which is the date when the victim's injuries have stabilised, his injuries have plateaued, and he has been discharged from further curative medical treatment. There is a disagreement as to whether the date of Consolidation in the present case is 23 October 2017 (as Mr Scales contends) or 3 April 2017 (as the MIB contends). Again, various important consequences will follow depending upon whether Mr Scales fits the definition of “gran invalido” (major invalid) in the Baremo. There is no disagreement as regards the definition of gran invalido, but the parties disagree as to whether Mr Scales falls within that definition. Still further, there are a number of disagreements as regards whether Mr Scales is entitled to compensation under various parts of a points-scoring system that is applicable to permanent symptoms, or sequelae, on a scale known as the Balthazar scale, and, if so, how many points he should be awarded under a particular head.
If this remedies hearing was taking place in a Spanish Court, the judge would be assisted by a Forensic Medical Examiner. This is a doctor, instructed either by the Court or the parties, who gives expert advice to the judge on matters of medical judgment, such as the date of Consolidation, whether the Claimant is a gran invalido, how many points should be awarded for various permanent symptoms, and on a number of other matters. The judge is not bound to adopt the advice of the Forensic Medical Examiner, but usually does so.
There is no equivalent of a Forensic Medical Examiner in the English High Court. Instead, I have been provided with a large number of medical expert reports and I have heard live evidence from two experts in ophthalmology (since the most significant dispute between the parties on the medical expert evidence relates to the state of Mr Scales's eyesight). Understandably, since they are not experienced in the Spanish Baremo system, these medical experts have not (with one exception I will come to) been asked to express a view on the date of Consolidation, the Gran Invalido question, the appropriate points for the various sequelae, or the other medical issues that arise under the Ba...
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Table of Cases
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