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Advice on Evidence and Quantum

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Advice on Evidence and Quantum 27 Advice on evidence and quantum 27.1 Checklist for advice on evidence for assessment of damages in a personal injury case 27.1.1 Issues List all issues which are likely to be before the court on the hearing of the assessment of damages to ensure that none are missed. 27.1.2 Case management Which ‘track’ is the claim in or likely to be allocated to? Have the Pre-Action Protocols for Personal Injury Claims been complied with? Have the court’s Case Management directions and orders been complied with? If not, how can the consequences of non- compliance be mitigated? At each stage below, consider how any further evidence re- quired is to be fi tted into the court’s directions or whether further directions can or should be sought. Remember that applications should not be made piecemeal but all necessary directions should be sought at the same hearing, if possible (CPR, r 1.4(2)(i)). 27.1.3 General damages for pain and suffering 1 Check medical reports (a) Is the medical position stable? If not—are the reports suffi ciently up to date? If not—advise a review. (b) Have all aspects of claimant’s condition been covered? Is a report required from another area of expertise, i.e. psychiatrist? Consider the claimant’s complaints, if any, of inability to work. (Should it be from a single joint expert (CPR, r 35.8)?) (c) Is this a case for provisional damages? Have they been claimed? (d) Have reports been disclosed to other side? If not: (i) Should they now be disclosed? (ii) Is there non-medical prejudicial material to be edited out? (iii) Is there reference to material (and in particular privileged material) in respect of which the other side would be entitled to disclosure if the report is served as it stands? online-opinion-chap27.indd 379 7/16/10 11:35 AM (e) Have the other side’s medical reports been disclosed? If so: (i) Are there any questions for the experts required for clarifi cation (CPR, r 35.6)? (ii) Can they be agreed? (iii) Should our expert be asked to comment on them fi rst? (f) Have the reports been verifi ed with a declaration, statement of truth, etc., in accordance with CPR, r 35.10 and PD 35 (Experts and Assessors), paras 2.1 and 2.2? 2 If acting for the claimant (a) Does his/her witness statement deal with the medical position? Is it up to date? If not advise an addendum. (b) Is it a case where evidence from family and friends will help to establish the extent of the changes in the claimant since the accident? Is there, for example, gross disability or personality change? (c) Is a video needed, for example, to demonstrate the extent of the claimant’s disability around the home? Or at work? 3 If acting for the defendant Are there grounds for suspecting the claimant is exaggerating his/her disabilities? If so: (a) Have we seen GP notes to check whether any relevant complaints were made before or after the accident? (b) Are there proofs from witnesses, e.g. in the neighbourhood or at work, who can say what the true position is? (c) Would a video help? Consider cost of enquiry agent against sum at stake. 4 Arrangements for disabled claimant to attend trial In the case of a grossly disabled claimant, and where acting for claimant, remind solici- tors of necessity for making suitable arrangements for the claimant to attend the trial. 5 Photographs (a) Is it a scarring case? If the scars are in an embarrassing place (buttocks, breasts, abdomen, etc.) are there up-to-date photographs? Colour is better than black and white. 7 × 35 inches should be the minimum size; 10 × 38 inches is better. Four booklets of photographs (or more if more than one defendant). (b) In appropriate cases, are there any pre-accident photographs for comparison purposes? (c) Have photographs been disclosed to the other side? If not—should they be? (d) Have the other side’s photographs (if any) been disclosed? If so—can they be agreed? 27.1.4 Damages for future loss and future care 1 In a case where the claimant has not resumed his/her pre-accident or any employment (a) Did the medical reports deal with the claimant’s prospects of being able to work again? If not, the omission should be covered. (b) Is the evidence of future loss suffi ciently full? Does it deal with the prospects of the claimant’s promotion? Is evidence required from his/her former immediate online-opinion-chap27.indd 380 7/16/10 11:35 AM superior as to his/her pre-accident abilities? If the claimant had only been in the pre-accident job for a short time, would evidence from a former employer help? (c) In what fi nancial state was/is the previous employer? Would the claimant have been made redundant? 2 In a case where the claimant has not resumed his/her pre-accident employment but has obtained a less well-paid job (a) Is there adequate evidence of the comparative earning rates? (b) Is there adequate evidence of the claimant’s abilities and promotional prospects in his/her present employment? 3 Claimant fi t to resume work If it is a case where the claimant is fi t to resume work, his/her pre-accident job is not available but he/she is claiming that he/she has been unable to obtain alternative employment—is there documentary evidence of job seeking? Has it been disclosed? Can it be agreed? 4 Is there evidence of claimant attending a rehabilitation or retraining assessment course? 5 In a case where the claimant has resumed his/her pre-accident employment (a) Is he/she likely to be at a disadvantage on the labour market, e.g. because of future disability (e.g. osteoarthritis) or present disability which does not prevent present work if he/she were to lose job? (b) If so, is there evidence (1) as to the claimant’s experience and qualifi cations and (2) of how secure his/her present job is likely to be? 6 Has the claimant lost pension rights? If so: (a) Have they been valued? (NB Auty v National Coal Board [1985] 1 WLR 784; and is accountancy help required?) (b) Have/can the calculations be agreed? 7 In a case of gross disability (a) Will there be a need for long-term care? If so, has it been properly costed? There should be an expert’s report, if so can it be disclosed/agreed? If not, should there be a joint expert? (b) Is this a case where a member of the claimant’s family is providing the care? If so, is there a proof from the provider? Does it deal with his/her loss of earnings? This is to be taken into account when quantifying the value of his/her services. In general a court will apply a discount of 20 to 30 per cent to refl ect the fact that care is provided by a non-commercial source. (Donnelly v Joyce [1974] QB 454 but note that the court may award only a gratuity rather than a ‘wage’: see Housecroft v Burnett [1986] 1 All ER 332 (CA) and Hunt v Severs [1994] 2 WLR 602.) Does the medical expert confi rm the need for such care? 8 Is the loss of earnings supported by documentary evidence? If not, it should be. If so, has it been disclosed? Can it be agreed? online-opinion-chap27.indd 381 7/16/10 11:35 AM 9 Is further surgery likely? If so, will it be performed privately? If so, has it been costed? 27.1.5 Special damages 1 Loss of earnings Is this properly documented? Can the fi gures be agreed? 2 Additional benefi ts from employer (a) Are these properly documented? (b) Can the fi gures be agreed? 3 Other items These can range from prescription charges and bus fares to specially adapted cars and even specially adapted accommodation. In the case of each major item: (a) Does it require expert evidence to justify the expense? If so has a report been obtained/disclosed? (b) Is item supported by documentary evidence? If so has it been disclosed? If acting for the claimant Has a schedule of past and future losses and expenses been prepared and served on the other parties in accordance with CPR, Part 16, PD 16, para 4.2? If not, advise solicitors that they should prepare the schedule or give instructions for counsel to do so. Note that the following items need to be dealt with (where applicable): (1) Loss of future earnings. (2) Loss of future earning capacity. (3) Medical or other expenses relating to or including the cost of care, attention, accommodation, and appliances in the future. (4) Loss of pension rights. If acting for the defendant (a) Have the items of special damages been agreed? (b) If not, can they be? (c) If not, can the documentary evidence supporting any item be agreed? (d) Do the witness statements adequately cover the evidence which you intend to adduce in relation to special damages? If necessary advise solicitor to prepare supplementary witness statements. 27.1.6 Admissions and hearsay evidence Is there any of your evidence that can properly be made the subject of a notice to admit facts or a notice to admit hearsay evidence under the Civil Evidence Act 1995 (see CPR, r 33.2)? If the other side have served notice of intention to rely on hearsay evidence should an application be made for permission to cross-examine? (Note that CPR, r 33.4(2) allows only 14 days from the date of service of notice of intention to rely for the making of such an application.) online-opinion-chap27.indd 382 7/16/10 11:35 AM 27.1.7 Witnesses List: (a) The witnesses whose attendance you will or may require at the trial in any event.
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