XP v Compensa Towarzystwo SA (First Defendant) Mr Przeyslaw Bejger (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 13 July 2016 |
| Neutral Citation | [2016] EWHC 1728 (QB) |
| Docket Number | Case No: HQ14X01115 |
| Court | Queen's Bench Division |
| Date | 13 July 2016 |
[2016] EWHC 1728 (QB)
Mrs Justice Whipple
Case No: HQ14X01115
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Brindle (instructed by Anthony Gold Solicitors) for the Claimant
Mr Bernard Doherty (instructed by Sullivans Solicitors) for the First Defendant
Mr John Meredith-Hardy (instructed by Keoghs LLP) for the Second Defendant
Hearing dates: 17, 18, 19 and 23 May 2016
INDEX
| A. INTRODUCTION | 1–4 |
| B. FACTS | |
| Background | 5–7 |
| Accident 1 | 8 |
| Between Accident 1 and Accident 2 | 9–20 |
| Accident 2 | 21 |
| After Accident 2 | 22–25 |
| The Present | 26–29 |
| C. MEDICAL EVIDENCE | |
| Orthopaedic Evidence | 30–31 |
| Gynaecology Evidence | 32–35 |
| Psychiatric Evidence | 36–38 |
| D. CAUSATION OF PSYCHIATRIC INJURY | |
| General | 39–44 |
| Disputed Issues | 45–53 |
| Summary of My Findings on Causation of Psychiatric Injury | 54 |
| E. POLISH LAW | |
| Introduction | 55–57 |
| Summary of Disputed Issues | 58–59 |
| Experts | 60–62 |
| Resolution of Polish Law Issues | |
| a. Art 441, joint and several | 63–65 |
| b Date for interest to run | 66–68 |
| c. Quantum of Redress under Polish Law | 69–73 |
| F. DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITY | |
| Accident 1 – Redress | 74–77 |
| Accident 2 – General Damages | 78–81 |
| G. SPECIAL DAMAGES | |
| ACCIDENT 1 | |
| Past Loss of Earnings | 82–88 |
| Apportionment of Past Loss of Earnings between the Defendants | 89–101 |
| Travel Expenses | 102 |
| Treatment Costs | 103–105 |
| Medication | 106 |
| Miscellaneous Expenses | 107 |
| Interest | 108 |
| ACCIDENT 2 | |
| Loss of Earnings | 109 |
| Travel Expenses | 110 |
| Medical Treatment | 111 |
| Care and Assistance | 112 |
| Medication | 113 |
| Damaged Items | 114 |
| Miscellaneous | 115 |
| Interest | 116 |
| H. FUTURE LOSSES | |
| ACCIDENT 1 | 117 |
| Fertility Treatment | 118–126 |
| Pyschiatric Treatment | 127 |
| Loss of Earnings | 128–134 |
| Careers Counselling | 135 |
| Loss of Pension | 136–138 |
| Travel Expenses | 139 |
| ACCIDENT 2 | 140 |
| I. CONCLUSION | 141–142 |
APPENDIX 1
A. INTRODUCTION
This claim is brought by XP. She claims damages for personal injury and consequential losses. The First Defendant ("Compensa") is the road traffic insurer of Mr Miroslaw Stamiak, who was responsible for a road traffic accident on 27 April 2011, when the Claimant was a front seat passenger in her brother's car with which Mr Stamiak's car collided. The accident occurred in Poland. This was "Accident 1". The Second Defendant is Mr Przemyslaw Bejger, who was responsible for a road traffic accident on 25 March 2013, when the Claimant was a front seat passenger in a Fiat Ducato vehicle being driven by him on the M4 in the United Kingdom when it collided with another vehicle. His road traffic act insurers defend this claim on his behalf, and he has not taken any part in this litigation personally. This was "Accident 2".
Both Defendants have admitted liability for the accidents in which they (or their insured drivers) were involved. But the Defendants dispute the damages claimed, and dispute their relative contribution to the Claimant's loss and damage.
The claim is complicated by a number of features. The following is a summary. The first, and most upsetting, is the fact that Accident 1 caused the Claimant to miscarry a pregnancy at 16 weeks. The miscarriage was traumatic and undoubtedly caused the Claimant physical and psychiatric injury. The nature and extent of the psychiatric injury is disputed. The second is that after Accident 1, the Claimant resumed an abusive relationship with the father of her miscarried child. This resumed relationship endured for several months, and concluded only when the Claimant took legal proceedings against him. The extent to which the abusive relationship contributed to the Claimant's mental health problems is in dispute. The third is that the Claimant suffered Accident 2 around 2 years after Accident 1, and while she was still suffering from the consequences of Accident 1. Much of the argument in this case was concerned with the relative contribution to the Claimant's loss and damage of each of Accident 1 and Accident 2. The fourth is the nature and extent of the Claimant's ongoing personal injury and likely future loss. She remains significantly psychiatrically unwell now (the prognosis is not agreed). The quantum of damages, particularly in relation to future loss of earnings, remains in dispute. The fifth, which is really a specific aspect of the fourth, is that the Claimant has not conceived since she miscarried in 2011. She desperately wants a child. There is a dispute as to the approach which should be adopted to that aspect of her loss, specifically whether she is entitled to claim for in vitro fertilisation or "IVF" treatment. Sixthly, Accident 1 occurred in Poland, and the damages consequent on it fall to be determined according to Polish law. Accident 2 occurred in the UK, so the damages are assessed under domestic law.
In this judgment, I shall set out the facts before turning to the expert evidence to the extent that it is agreed. I shall then consider the issues which are in dispute, before turning to the figures. I have ordered that the Claimant's identity should be protected, and for that reason she is referred to as XP. I gave my reasons in a separate judgment.
B. FACTS
Background
The Claimant was born in 1976 in Poland. She is well educated and has an MA in management and marketing from a Polish university. She came to the UK in 2000, and has lived here ever since. She stayed here initially as a student, with restrictions on working. But Poland joined the EU in 2004 and from that date she was free to work in the UK unrestricted. Her first full time job (starting in 2004) was with a mail order company based in London. She earned £17,000 pa plus benefits including private healthcare. That job came to an end when the company moved out of London. From October 2005, the Claimant got a better-paid position at another company ("Company 1"). This was initially a fixed term 2-year contract for £20,000 pa plus benefits, including pension and private healthcare. Her contract became permanent, at a salary of £21,000 pa (plus benefits). She left that job in 2008 and briefly went back to Poland. She returned to the UK and in May 2009 got a job at a JobCentrePlus, employed by the Department of Work and Pensions ("DWP"). She started on a one-year fixed term contract at a salary of £23,940 with a pension (to which DWP contributed 18.8%) giving an overall salary value of around £27,000. Her one-year contract was renewed several times. The Claimant was in this job when she had Accident 1.
In around July 2010, the Claimant started a relationship with a man she had met at her work called Haydn. The Claimant broke off that relationship in around January 2011. Shortly afterwards, she found out she was pregnant by him. She was pleased to be pregnant: she had been thinking about having children and this was good news. She told Haydn about the pregnancy; he was pleased; the relationship resumed at that point. On 6 th April 2011, the Claimant had a scan. The baby was 16 weeks gestation. All seemed well. The due date was 13 October 2011.
On 23 April 2011, the Claimant flew to Poland to see her parents over Easter.
Accident 1
Accident 1 occurred when the Claimant was a front seat passenger in a car being driven by her brother. The other vehicle hit the side of her brother's car as it reversed out of a side turning. After the accident, she went back to her brother's house by taxi (the car was beyond repair). The Claimant fell asleep but was woken up by painful stomach cramps and bleeding. She got into a warm bath to see if that would ease the pain. She started bleeding more profusely. The baby then came out while she was in the bath. She recalls that it was recognisable as a human fetus. Her brother had called the paramedics, who took her out of the bath and to hospital. She woke up in hospital, in significant pain, bleeding and dizzy. She underwent surgery to evacuate retained products of conception ("ERPC"). She remained in hospital for 3 days. She was discharged with strong pain killers, a neck brace and advice to avoid having sexual intercourse for 3–4 months.
Between Accident 1 and Accident 2
The Claimant returned to the UK on 3 May 2011 and returned to work as she had planned to the following day, 4 May 2011. No one at work had known she was pregnant, and she told no one of the miscarriage. She felt that she was still in shock but tried to get on with life as normal.
Haydn was waiting for her when she came out of work that day. He was angry that she had lost the child and became aggressive. From this point Haydn became increasingly erratic and abusive in his behaviour. The Claimant describes herself as being traumatised, disorientated and very vulnerable at that stage. Haydn repeatedly forced himself on the Claimant in the subsequent days and weeks, even though she told him she did not wish to have sex.
In the days and weeks following, the Claimant became tearful, particularly around pregnant women or mothers with small children. This was a problem at her workplace, where there were members of the public present.
On 5 May 2011 she consulted her GP for the first time about Accident 1. She was reviewed after a week, and then again on 19 May 2011. She took some time off work certified by her GP. She was reporting problems associated with her whiplash injury, as well as seeking counselling to help with her miscarriage. She was certified fit for work with amended duties on 8 June 2011 but the Claimant says that her...
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