Waseem Sarwar v Kamran Ali and Motor Insurers' Bureau
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Lloyd Jones |
| Judgment Date | 25 May 2007 |
| Neutral Citation | [2007] EWHC 274 (QB),[2007] EWHC 1255 (QB) |
| Docket Number | Case No: TLQ/05/0386 |
| Court | Queen's Bench Division |
| Date | 25 May 2007 |
[2007] EWHC 1255 (QB)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Lloyd Jones
Case No: TLQ/05/0386
Mr. Frank Burton QC and Mr. William Latimer-Sayer (instructed by Stewarts) for the Claimant
Mr. Richard Methuen QC and Ms Katherine Awadalla (instructed by Greenwoods) for the Second Defendant
The First Defendant did not appear and was not represented.
Hearing dates: 11, 12, 15, 16, 17, 18, 19, 22, 23, 24, 25 January, 26, 27 March 2007.
1. On the 29 th September 2001 the Claimant, Mr. Waseem Sarwar, who was then aged 17, was very seriously injured in a road accident. He was a rear seat passenger in a car driven by the First Defendant, Mr. Kamran Ali. The First Defendant, who was uninsured, lost control of the car whilst driving at speed on a shallow bend. The car left the road and collided with a hedge. The Claimant was ejected through the back window sustaining multiple and severe injuries. He was rendered a C5 tetraplegic.
2. The Claimant now sues for damages for personal injury. Liability has been admitted and judgment has been entered against the First Defendant on the basis of a 75:25 apportionment in favour of the Claimant, the reduction for contributory negligence arising from the fact that the Claimant was not wearing a seatbelt. The hearing before me has been limited to issues of quantum and the form of the award, including the appropriate index to which any periodical payments for future loss should be linked.
3. The First Defendant did not take any part in these proceedings.
4. At the request of counsel for the Claimant and the Second Defendant, the Motor Insurers’ Bureau, on the 21 st February 2007 I delivered a preliminary judgment on the life expectancy of the Claimant and on the appropriate multiplier ( Sarwar v Ali and Motor Insurers’ Bureau [2007] EWHC 274 (QB)). For the reasons there given I concluded that the life expectancy of the Claimant is a further 49 years and that the appropriate multiplier, applying a discount rate of 2.5%, is 28.42.
Items that have been agreed.
4. The parties have agreed damages as follows;
(1) General damages including interest £ 227,384
(2) Special damages up to 18 th January 2007
inclusive of interest £1,100,000
(3) Future medical treatment £ 375,000
(4) Future equipment £ 275,000
(5) Future household expenses £ 250,000
(6) Future expenditure on computers,
information technology and entertainment £ 224,000
(7) Future trusts £ 40,000
Remaining issues.
5. The remaining heads of claim can be considered under the following headings;
(1) Provisional damages
(2) Loss of earnings
(3) Care
(4) Transport
(5) Holidays
(6) Accommodation
PROVISIONAL DAMAGES.
6. In opening this case the Claimant invited the court to make a provisional award of damages in order to take account of three possible developments in his condition, namely epilepsy, syrinx and heterotrophic ossification. The power of the court to make such an award arises under section 32A, Supreme Court 1981:
“32A. – (1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.
(2) Subject to subsection (4) below, as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person —
(a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and
(b) further damages at a future date if he develops the disease or suffers the deterioration.”
7. The court is empowered to make such an award only if the Claimant establishes that he has suffered personal injuries and that he faces a chance or risk of developing a serious disease or suffering some serious deterioration in his condition. The Claimant must also persuade the court that his is an appropriate case in which to exercise the discretion.
8. So far as concerns the degree of risk contemplated by the use of the words “a chance” in section 32A(1), in Willson v MOD [1991] All ER 638 at p. 642 B Scott Baker J, as he then was, considered that in order to qualify as a chance a risk must be measurable rather than fanciful. This approach was approved by the Court of Appeal in Curi v Colina (29 th July 1998, unreported). So far as the seriousness of the condition is concerned, the Court of Appeal in Curi v Colina concluded:
“The disease or deterioration must be such that an award of damages which includes a sum for the chance would be wholly inadequate to compensate the claimant for the position in which he would find himself once the chance had materialized.”
9. By the time we had reached closing submissions in the present case, the parties had agreed to invite me to make an award of provisional damages in respect of epilepsy and syrinx but not to make any award in respect heterotrophic ossification. In the light of the evidence of Mr. F. Derry, the consultant surgeon called on behalf of the Claimant, and Mr. Anthony M. Tromans, the consultant surgeon called on behalf of the Defendant, I am satisfied that that is an appropriate course and that the statutory criteria for the making of an award of provisional damages are satisfied.
10. So far as epilepsy is concerned, the experts were agreed that the risk of its developing was small but not so small as to be minimal. The condition is clearly sufficiently serious for a once for all damages award to be inadequate to compensate the Claimant for the condition should it occur. Similarly, the evidence of the experts supports the conclusion that the risk of the cyst, from which the Claimant is already suffering, developing into a syrinx with major symptoms is about 5%. Here again, this degree of risk and the seriousness of the condition should it develop make it appropriate to deal with it by way of provisional damages. On the other hand, I consider on the basis of the expert evidence, that the risk of the Claimant developing heterotrophic ossification, given that it has not developed in the first year after the accident, is so small that it can properly be disregarded.
11. Accordingly, I propose to make an order for provisional damages to the above effect.
LOSS OF EARNINGS
Likely career.
12. In attempting to quantify the Claimant's loss in respect of future earnings it is necessary to attempt to form some view as to the career he would have been likely to pursue and to assess the likely degree of success he would have met had he not suffered the accident.
13. At the date of the accident the Claimant was 17 years of age. He had passed the 11+ examination and had been a pupil at Slough Grammar School where, in the summer of 2000, he obtained 9 GCSEs, 3 at grade B and 6 at grade C. These were below his expected grades. His school report showed that he did not work to his full potential and that he was on occasion excluded on account of his behaviour. He then left school, intending to take a year off to consider his future and what A levels to study. During that year he did various jobs including working as a shop assistant. He says that he knew he wanted to do something with economics. A careers advisor at school had said he would be very well suited to accountancy but he had not limited his options to accountancy and would have been happy to work in some financial or business role in the City. At the time of the accident he had just enrolled at East Berkshire College and was studying for ‘A’ levels in mathematics, economics and information and computer technology.
14. The GCSE grades he obtained, while respectable, are not particularly promising. However, there is a considerable weight of evidence to support the view that his own assessment that he performed substantially below his potential is accurate.
(1) The agreed neuropsychological evidence is that the Claimant's pre-accident IQ was at least in the above average range. Dr. Leng suggests his IQ was at least 110 or higher. Professor Beaumont suggests that it is likely to be in the range 115–125. The Second Defendant's psychiatric expert, Dr. Rosen, is of the opinion, on the balance of probabilities, that the Claimant would have completed his ‘A’ levels and would have gone on to university.
(2) Mr. Anthony Cullingworth, now a retired school teacher, had been the Claimant's form tutor when he was in years 10 and 11 at Slough Grammar School i.e. the period leading up to GCSEs. He gave evidence that during this time the Claimant grew up very quickly. It was clear that he had ability and determination and that with time it could have been channelled more productively. He found mathematics very satisfying. His GCSE results were not as good as had been expected and certainly not as good as they could have been if he had concentrated on and worked harder at the subjects he did not enjoy. It was Mr. Cullingworth's considered opinion that he had no doubt that Waseem would have gone on to further education of some kind.
(3) Mr. Cullingworth also spoke of the Claimant's character. He had formed the view that Waseem was a real leader of the class. He was a very strong personality. He could command attention in a way that other pupils could not. Mr. Cullingworth considered that “Waseem had a certain know how that I certainly believe would have allowed him to make his mark on the world as an entrepreneur.” He spoke of Waseem's flare and independence.
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