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High Court holds that Roberts v Johnstone is binding in decision not to award for special accommodation costs

Claimant denied award of special accommodation costs following serious injury on basis of ruling in Roberts v Johnstone

Swift v Carpenter

The claimant suffered significant injuries to both lower limbs resulting in a below knee amputation of the left leg in a road traffic accident in 2013.

Damages of over £7m were sought with large sums claimed for prosthetics, care and case management, loss of earnings, accommodation, travel/transport costs and additional holiday costs.

The parties accepted that the claimant would need to move home because of her injuries but the additional capital cost of the purchase was disputed as was whether this cost was recoverable. The claimant argued that the traditional Roberts v Johnstone approach which produced no loss because of a negative discount rate was unfair. Alternative approaches were canvassed by the claimant including a Roberts v Johnstone calculation using a 2% rate of investment return which was the claimant’s preference, the full capital cost of an interest only mortgage for life, an interest only mortgage for life funded by a PPO and the increased cost of renting special accommodation. Significantly, no evidence was adduced to support any of these alternative approaches.

Mrs Justice Lambert handed down Judgment on 3 August 2018. The claimant was awarded significant damages but recovered nothing for the additional capital cost of special accommodation, assessed at a figure of £900,000. In a clear and unambiguous judgment, the Judge held that she remained bound by Roberts v Johnstone. This was the same conclusion that Mr Justice William Davis came to in the earlier case of JR (a protected party by his mother and litigation friend) v Sheffield Teaching Hospitals NHS Foundation Trust (2017) EWHC 1245 (QB) so the law now appears clear on the point.

Permission to appeal has been granted. If the claimant wishes to adduce fresh evidence she will have to make an application and that will turn upon Ladd v Marshall principles and whether such evidence would or could have been available at trial if counsel for the claimant had chosen to adduce it.

It remains to be seen how the Court of Appeal will deal with this complex issue. Although the Judge at first instance gave permission to appeal she made it clear that problems and anomalies with the Roberts v Johnstone formula have been present ever since the case was decided in 1989, and that the effect of the negative discount rate was simply to create a further anomaly, She also found that each of the alternative approaches advocated by the claimant would result in a “windfall” for the claimant which the Court of Appeal in Roberts v Johnstone considered to amount to over-compensation.

Weightmans acted for the defendant in the case on the instructions of AXA Corporate Solutions Assurance. If you would like to know more about our update or have any questions, please contact Dave Cottam (Partner).

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