William Latimer-Sayer QC considers the case of XP V Compensa Towarzystwo SA v Przeyslaw Bejger  EWHC 1728 (QB) in which Whipple J had to grapple with a number of tricky quantum issues.
The Claimant had been injured in two separate road traffic accidents. The first accident occurred in Poland on 27 April 2011. The second accident happened on the M4 on 25 March 2013. The Claimant suffered a miscarriage following the first accident and there were arguments regarding the extent and causation of her continuing psychiatric symptoms. Liability was admitted in relation to both accidents and the disputed issues concerned quantum and causation. In a well-structured and well-reasoned judgment, Whipple J assessed the damages payable under Polish law for the first accident in accordance with Rome II and those payable in relation to the second accident applying English law. The judge had previously separately decided to convert all damages and award them in Sterling (although a report of this judgment is not currently available on BAILII or Lawtel).
There are several points of interest for practitioners. Firstly, the resolution of the disputes between the experts called. The judge preferred the psychiatric evidence of Dr Gibbons over that of either of the Defendant’s experts. Dr Isaac for the First Defendant had changed his opinion significantly over time. Dr Master for the Second Defendant largely agreed with Dr Gibbons but had not examined the Claimant. More intriguingly the Second Defendant called an expert in Polish law who was an academic rather than a personal injury specialist. The judge had no hesitation in preferring the evidence of Ms Jolanta Budzowska regarding the disputed issues given that she had been a partner specialising in bringing personal injury claims for 20 years in the Polish courts and had significant practical experience regarding the way the claim would be assessed in Poland. Interest on the claim was awarded by reference to (the more favourable) Polish principles, bearing in mind that the damages had been assessed as if the claim had been brought in Poland.
Secondly, the judge’s analysis of causation may be of assistance to those dealing with psychiatric injury claims involving multiple tortfeasors. The Second Defendant sought to argue that there should be no continuing claim for loss of earnings or other special damages because the second accident had made no difference. Reliance was placed upon Reaney v University Hospital of North Staffordshire NHS Trust  EWCA Civ 119. This case was distinguished because the judge was unable to say that but for the second accident the Claimant would have been unable to work in any event and that the second accident had made little difference. She found that the combined effects of both accidents led to the Claimant being unemployed for a period of two years. Applying the dicta of Laws LJ in Rahman v Arearose Ltd  QB 351, she held that she was entitled to adopt a broad brush approach in order to reach a “just conclusion” and found that the Defendant should share the losses between them. She also declined to apportion any causative weight to the Claimant’s abusive relationship. The parties’ psychiatric experts agreed this was only a relatively small contributing factor and the contribution could not be quantified precisely.
Lastly, the judge awarded the claim for fertility treatment in the sum of £18,150. The Claimant’s physical ability to become pregnant and bear a child had not been affected by either accident. However, the Claimant was in her mid-thirties when the accident occurred and as a result of the PTSD she suffered she was not in a position to start a relationship until her 40s once her chances of conceiving had fallen significantly. The First Defendant argued that since the accidents had not directly altered the Claimant’s fertility, she was not entitled to the treatment. It was also argued she had failed to mitigate her loss. Whipple J rejected both arguments. She held that the fertility treatment was not required as a form of psychiatric treatment but was reasonably recoverable by way of restoration. The Claimant was pregnant at the time of the accident. Fundamentally, she was entitled to be put back into the position she was in at the time of the first accident (she was happy to have been pregnant and wanted a child). On the balance of probabilities she would reasonably require fertility treatment to become pregnant again (three cycles of IVF treatment would give her a 70% chance of having a child). The claim was recoverable under Polish and English law. Further, she had not failed to mitigate her loss because the very reasons why she had not become pregnant since the first accident were due to her being psychiatrically unwell, struggling financially and being socially isolated which were all direct consequences flowing from that accident.
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