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Bc Disease News a Monthly Disease Update December 2020 Edition BC DISEASE NEWS A MONTHLY DISEASE UPDATE CONTENTS PAGE 2 Welcome Welcome PAGE 3 Welcome to the 318th edition of BC Disease News. Calculating In this issue, we provide a thorough review of the law on damages for special Accommodation Claims in accommodation in personal injury claims. We do so in light of the recent case of a Negative Discount Rate Swift v Carpenter & Anor [2020] EWCA Civ 1295, which offered an alternative Era: Swift v Carpenter & Anor means of compensating claimants to the traditional Roberts v Johnstone award. [2020] EWCA Civ 1295 Moreover, we analyse the full findings from the Institution of Occupational Safety and Health’s (IOSH) Diesel Exposure Mitigation Study (DEMiSt), which were PAGE 5 released several months later than expected. Guideline Hourly Rates Our final article of the week is a review of newly published epidemiological Subjected to 35% Inflation- literature, which identified a range of occupational carcinogens, employment Related Uplift ‘as a Starting sectors, job titles and specific work tasks that are strongly associated with Point’: Cohen v Fine & Ors urothelial (bladder) cancer. [2020] EWHC 3278 (Ch) Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. PAGE 6 As always, warmest regards to all. Professional Drivers ‘Surprised’ to Discover Their SUBJECTS Diesel Exposure Levels, as IOSH Publishes Full DEMiSt Special Accommodation Awards, Roberts v Johnstone and the Personal Injury Study Findings Discount Rate – Guideline Hourly Rates – Professional Drivers and Diesel Exhaust Emission Exposures – Occupational Stress, Brain Damage and Cognitive Decline PAGE 7 – Occupational Bladder Cancer Carcinogens. Colorado State Researchers Find ‘First Evidence’ that Occupational Stress Accelerates Brain and Cognitive Ageing PAGE 9 Sheffield University Academics Publish In-Depth Review of Occupational Bladder Cancer and its Associated Carcinogens PAGE | 2 Calculating Accommodation Claims in a Negative Discount Rate Era: Swift v Carpenter & Anor [2020] EWCA Civ 1295 In June of this year, legal commentators began to speculate that Swift v Carpenter & Anor [2020] EWCA Civ 1295 would depart from Roberts v Johnstone [1989] QB 878, which has been the leading case authority on assessments of damages for special accommodation in serious personal injury claims for many years.1 When claimants sustain life-changing physical injuries that impair mobility, their pre-injury accommodation is often no longer suited to their post-injury requirements and new accommodation is sought. It is normal for new accommodation to exceed the value of the victims’ previous accommodation. For decades, claimants have disclosed the capital value of a replacement home, but Roberts dictates that courts should only compensate claimants for the annual loss of income brought about by spending their own money on accommodation, in preference to making investments. To calculate damages awarded for special accommodation under Roberts, the correct procedure involves multiplying the capital property cost (the difference between the value of the old and new accommodation) by the prevailing personal injury discount rate (2% in 1989) and then multiplying that figure by the multiplier for pecuniary loss of life (using Tables 1 and 2 of the Ogden Tables2). Even though moving, adaptation and running costs have always been recoverable, in order to fully fund new property purchases, claimants have often needed to supplement Roberts v Johnstone awards with damages from other heads of loss (invariably general damages, but potentially other heads of special damages if there has been a deduction for contributory negligence). For example, under the previous 2.5% discount rate (effective up to 2017), a 51-year-old male claimant moving from a £300,000 home to a £550,000 home would have received: In this scenario, there would be a £110,812.50 deficit to cover the whole value of the new property. However, this would be deemed fair, because awarding claimants the full capital cost of special accommodation would result in over- compensation by the time that the claimant died, i.e. the value of the asset would be expected to have enhanced. Since Roberts was handed down in the 1980’s, the personal injury discount rate in England & Wales has shifted upwards to 2.5%, then downwards to (-)0.75% and then back up to (-)0.25%. So, what impact has successive negative discount rates in recent years had on special accommodation claims? At first blush, the issue with the Roberts approach is plainly that the multiplicand can only be generated if the assumed rate of return is at or above 0%. This was foretold in the 19th edition of McGregor on Damages (published July 2014), at paragraph 38.204 of the section on special accommodation expenses: ‘It is high time that the Roberts v Johnstone problem was tackled and a fair and proper solution found and adopted. The Law Commission looked into the matter some time ago but found it too difficult to formulate an acceptable solution and so recommended that the Roberts v Johnstone method be retained. The Ogden Working Party is fully aware that the law needs to be righted and has it in mind to investigate the issue in the near future. What could trigger action on this front is a further reduction in the discount rate, the possibility of which, as we have seen, is very much in the air. It is true that, as the discount rate lowers, the multipliers increase, but an examination of the figures in the tables in Ogden shows that the increases in the multipliers do not come anywhere near to balancing, or off-setting the effect of, the fall in the discount rate. Ironically the injured party will get more for care but less for special accommodation. Indeed should the discount rate PAGE | 3 move into the negative, which is highly In June of this year, an opportunity to regarded as full, fair or reasonable unlikely but did happen in the Guernsey change the status quo arose at the Court of compensation to award nil damages in case in the Privy Council of Helmot v Simon, Appeal, in Swift v Carpenter & Anor [2020] respect of a large established need, on the the Roberts v Johnstone method becomes EWCA Civ 1295. The claimant in this action basis that, if all the relevant predictions hold unworkable; it would produce a nil award’. suffered leg injuries in a road-traffic good over many decades to come, there accident (RTA), which resulted in a below- will arise a windfall to a claimant's estate. Such an outcome materialised in the case knee amputation and the need for larger Nor is it fair or reasonable compensation to of JR v Sheffield Teaching Hospitals NHS accommodation, at a cost of £900,000. follow the Roberts v Johnstone approach Foundation Trust [2017] EWHC 1245 (QB), She was 43-years-old at the date of trial on the basis that if all the same predictions wherein Mr. Justice Davis deemed himself [43.58-years-old for the purpose of Ogden hold good, there will in addition be in bound to follow Roberts and the ‘proper’ (7th edition]). existence a suitable market to enable a consequence of doing so was to order a ‘nil claimant, by then elderly or aged, to award’, in respect of the cost of special To cut a long story short, the outcome of release equity at a reasonable cost and accommodation. Swift was that Lord and Lady Justices Irwin, without unacceptable disruption’. Davies and Underhill unanimously There was ‘no foundation’ for awarding any overturned Lambert J’s High Court ruling,4 By prioritising the need to avoid a windfall more (or less) than a ‘zero figure’ under the which had followed Roberts and made a above the need to establish fair and Roberts formula, seeing that there was ‘no ‘nil award’. reasonable compensation, Irwin LJ found ability to obtain any positive return on a that the present-day effect of Roberts is to capital fund based on risk-free investment’, In so doing, the judges rejected the ‘put the cart before the horse’. He therefore i.e. nothing to compensate for: defendant’s submission that they were proposed to bring an end to this by bound by the House of Lords’ decision in reinstating the ‘cardinal principle’ and ‘I consider that the editor of McGregor was Wells v Wells [1998] UKHL 27, which followed awarding 100% compensation. quite correct when he opined that a fair Roberts: and proper solution should be found to the Replacing Roberts, the Court of Appeal conundrum of providing a claimant with ‘It appears to me that the reasoning in decided that the correct approach would the means to purchase special Roberts v Johnstone was a means to an end be to compensate the claimant for the accommodation. He also was correct rather than a principle, or end in itself. If capital value of new accommodation, less when he suggested that a negative there is a justified call to alter the means by ‘reversionary interest’, i.e. the value of the discount rate would mean that the which that end (fair compensation but not ‘windfall’ that would be accrued over a approach in Roberts v Johnstone would overcompensation) is reached, and prolonged time period. This discount was lead to a nil award. But I am not in a another means is available, it appears to based on a ‘market valuation’, but is not to position to find "the fair and proper solution" me this court should be ready to be ‘regarded as a straitjacket to be to the problem as a whole. I am faced contemplate a change in the guidance to applied universally and rigidly’ – per the simply with the case of this Claimant. In his be given’.
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