XP v Compensa Towarzystwo SA & Anor

Accident 1 occurred in Poland. The damages due will therefore be assessed according to Polish Law, applying EC Regulation 864/2007 (known as “Rome II”). I was assisted by experts in Polish law, and my conclusions on their evidence will inform my findings of fact as to the quantum of damage under Polish law. The parties were agreed on this approach, all citing Bumper Development Corporation v Commissioner of Police of the Metropolis [1991] 1 WLR 1362 as authority for it.

The following provisions of the Polish Civil Code are relevant to this case:

There was a substantial degree of agreement between the Polish law experts. They agreed that:

The following Polish law issues separated the experts:

There was no dispute about the approach to pecuniary losses past and future (although quantum was not agreed between the Claimant and Compensa). I shall deal with those heads of loss separately in this judgment, applying the agreed approach.

Ms Jolanta Budzowska was called by the Claimant. She is a partner in the law firm Budzowska Fiutowski and Partners in Krakow. She has 20 years’ experience of bringing claims for personal injury in the Polish courts, many of them on behalf of severely injured clients. She is a member of the Pan-European Organisation of Personal Injury Lawyers. She is also a member of a “provincial committee” which awards compensation outside the court system for medical accidents, assessing compensation according to the approach applied by the Polish courts under the Civil Code.

Compensa called Dr Katarzyna Ludwichowska-Redo. Dr Ludwichowska-Redo did qualify as a solicitor in Poland in 2013, but has never practised as a solicitor. She has an impressive academic record and has written extensively on the Polish law of tort, and has lectured and taught that subject at university level also. Most recently she was employed as a senior scientist at the Institute for European Tort Law in Vienna, Austria. Perhaps inevitably given her academic background, Dr Ludwichowska-Redo was at a disadvantage to Ms Budzowska in describing the ordinary practice and procedure of the Polish courts, and in anticipating the outcome of this claim, had it been litigated in Poland. Yet, that outcome is the very “fact” which I am required to find, and which forms the basis of this judgment so far as it awards damages consequent on Accident 1.

Where the opinions of the two experts diverged, I found Ms Budzowska’s evidence to be the more compelling, because of Ms Budzowska’s familiarity with the Polish legal system.

Art 441, joint and several

Ms Budzowska told me that article 441 was intended to protect Claimants by enabling them to claim damages from one tortfeasor even where more than one tortfeasor has contributed to the damage; that sued tortfeasor can then seek contribution from co-tortfeasors if appropriate. She said that article 441 applies in situations where the damage caused by the negligent act or omission of more than one tortfeasor was “indivisible”. She also said that she thought the Polish court would find the Claimant’s psychiatric illness to be a single “indivisible” form of harm, incapable of precise separation between the contributions made by Accident 1 and the abusive relationship (and indeed by Accident 2). For that reason, she was of the view that article 441 applied in Polish law to render Compensa liable for the totality of the Claimant’s psychiatric injury following Accident 1, even if there was a contribution to that overall harm from other sources.

Much of Dr Ludwichowska-Redo’s report was concerned with explaining how the chain of causation can be broken by the intervening acts of third parties; in her report, and indeed in the joint statement, Dr Ludwichowska-Redo suggested that the acts of Haydn in abusing the Claimant were an intervening act which “set a limit” to Compensa’s liability. I understand this view to have been posited on the operative cause of the Claimant’s psychiatric illness being the abusive relationship rather than Accident 1. But the joint view of the psychiatrists is that Haydn’s conduct was a “modest” contributing factor. Accident 1 remained the most important contributor to the Claimant’s ill-health. On that different factual hypothesis, Dr Ludwichowska-Redo accepted that Compensa remained liable for the full damage. Much of her evidence became irrelevant in light of that agreement.

If there remained any distance between the experts on the joint and several liability point, I prefer the evidence of Ms Budzowska. I accept her explanation of the policy which underlies article 441, and her evidence about other cases when the article has been invoked by the Polish courts to meet cases analogous with this one.

Date for interest to run

Ms Budzowska acknowledged that there were two schools of opinion on the date from which payment of interest runs in Poland. The first is that interest runs from shortly after the date on which the demand for payment is made, and constitutes interest for the delay in meeting that demand (noting article 817, which would apply here because Compensa is an insurance company, requiring payment within 30 days). The demand for payment means the first demand or notification, which may be earlier than the date of issue or service of proceedings. From that date onwards, it is open to a defendant to meet the Claimant’s claim for compensation (as and when aspects of it are presented), and Articles 481 and 817 of the Polish Civil Code, applied in concert with the relatively high rate of statutory interest awarded in Polish law on both pecuniary and non-pecuniary damages, reflect a public policy of seeking to encourage defendants to do just that. In this case, the claim was notified by letter of claim dated 26 September 2011. The claim was not quantified at that stage, but I am satisfied this was the “notification” to which article 817 refers, and is the date from which interest should run, on the first school of thought. The other school of thought is that interest should run from the date of judgment. Ms Budzowska told me that the former has now gained much greater foothold in Poland and is the basis on which she would expect interest to be awarded were this case being litigated in Poland. Dr Ludwichowska-Redo said she was unable to disagree with Ms Budzowska’s experience of the usual approach in the Polish courts, but simply acknowledged that there are two schools of opinion, and maintained that both are current, and open to me to adopt in my quantification of the Claimant’s losses.

Mr Doherty for Compensa invited me to award interest under English law in preference to Polish law. He argued that this was open to me on the basis that interest was a procedural matter, and so I had a choice as to my approach, citing Maher v Groupama Grand Est [2009] EWCA Civ 1191. I do not need to analyse (or decide) the issue of whether the award of interest in this case is a substantive or a procedural matter. I can simply say that if interest on the award against Compensa is a procedural matter, to be resolved under English law, then I would follow the suggestion made in Maher v Groupama (which includes a citation from Lesotho Highlands Development Authority v Impregilo SpA [2004] 1 All ER (Comm) 97 at [33]), to the effect that the domestic court might, in exercising its discretion under s 35A of the Senior Courts Act 1981, wish to take into account of the relevant provisions of foreign law relating to the recovery of interest, including the rate of interest which would have been payable in that other country. It is appropriate in this case that interest on the award should be calculated under Polish law. That would be consistent with this Court’s role in hearing the Claimant’s case against Compensa under Rome II, namely to arrive at a figure for damages which equates to that which would have been awarded by a Polish court if this case had been heard in Poland. Any different approach would be inconsistent with that role. I reject Mr Doherty’s invitation.

I accept Ms Budzowska’s evidence as to what is more usual practice in Poland. I award interest from 30 days after the date of the demand (by which I mean the date of first notification in 2011), on the basis that a Polish court would be likely to do that.

Quantum of Redress under Polish Law

Both experts agreed that compensation is due under Articles 445 and 448 of the Polish Civil Code for non-pecuniary losses (called “Redress”, and, as I understand it, akin to ‘general damages’ in domestic law for the types of loss described in those two articles). They agreed that there are no tables or guidelines for quantum under these heads, and other cases provided general guidance only, because the doctrine of precedent does not apply in Poland.

Ms Budzowska indicated that in her view the Polish Court would award 350,000-450,000 PLN as compensation under Article 445; this took account of the higher prices and earnings in the UK, and built in an uplift of 100% to reflect the fact that the Claimant lives in the UK where prices are higher. That amount was predicated on my acceptance of Dr Gibbons’ evidence in preference for Dr Isaac’s (as I have indeed found). The award under this head is for damages for pain and suffering caused by bodily injury and health disorder. Ms Budzowska told me that in Poland, the life of a human being, including the life of an unborn child, holds a fundamental constitutional value, and the harm to a mother who loses a child is generally considered to be severe.

She advised me that the Polish Court would award 50,000-100,000 PLN as compensation under Article 448, noting the special significance of the Claimant’s right to a family life consequent on the loss of the child. She cited a recent decision by the Krakow Court of Appeal, in which 102,000 PLN was awarded under Art 448 to a woman who was living in Poland who had lost an unborn child at a similar stage of gestation. She noted that her own figures had not taken account of the possibility that the Claimant might never be able to have a child (rather she had assumed that the Claimant would be able to have a child, and the compensation was for the loss of the baby in 2011, combined with the consequent long interruption to the Claimant’s family plans), so if anything were on the low side.

Dr Ludwichowska-Redo declined to offer any estimate of quantum, noting that this was beyond her expertise. Although she criticised Ms Budzowka’s 100% uplift to reflect the higher cost of living in the UK, Dr Ludwichowska-Redo did not offer me any alternative, and did not refute the fact that by any measure, prices and earnings in the UK are significantly higher than in Poland.

Overall, I am satisfied that Ms Budzowska’s brackets for redress under Articles 445 and 448 are reasonable and I accept them. I shall now come to the precise qualification of redress.

DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITY

I take the view that a Polish court would make awards towards the upper end of each bracket put forward by Ms Budzowska. Under Article 445, noting the life-long effect of the psychiatric injury imposed on the Claimant, the devastating interruption to her life that Accident 1 has caused, and the fact that we are now 5 years post-accident and the Claimant remains uncompensated, I am satisfied that the appropriate figure to award is 425,000 PLN (Polish Zloti). The sterling equivalent is around £75,000.

Under Article 448, the appropriate figure to award is 75,000 PLN. Mr Brindle counsel for the Claimant invited me to go above the top end of Ms Budzowska’s bracket, largely on the basis of the one case identified by Ms Budzowska where 102,000 PLN was awarded under Article 448 for a claimant resident in Poland, so (he said) suggesting that a much higher award was warranted for the Claimant in this case who is resident in the UK. I decline that invitation: it was the joint view of the experts that other cases where awards have been made are not to be used as providing any kind of precedent; further, on review of that case report, it seems that there were significant differences between that case and this case which might justify a higher award in that case. I prefer to stick to the bracket suggested by Ms Budzowska in her report, as a reasonable guide, and to pitch my award towards the upper end of that. The sterling equivalent is around £13,000.

The resulting total figure for redress, in sterling, is £88,000. (This figure disregards the exacerbation in 2013-2015 by virtue of Accident 2, which falls to be considered separately. Further, I am satisfied that it is correct in this case to make the award in pound sterling and not Polish Zloti. My reason for so concluding have been given separately and I do not repeat them here.

Both parties addressed me on the appropriate level of general damages had this been a domestic case. I do not need to reach any view about what the domestic law damages would have been, but wish to record my doubt about some of the arguments presented to me. I do not believe that Mr Doherty is right to suggest that general damages in this jurisdiction would be limited to a figure within the “moderately severe” bracket for PTSD or other psychiatric damage in the Judicial College guidelines. Any domestic court would have regard to the specific and aggravating features of this case: traumatic miscarriage, fertility issues consequent on that loss and exacerbated by the time which has now elapsed, anxiety about infertility, desire for a child, orthopaedic damage, fluctuating intensity of psychiatric harm, interruption to life plans and career, poor prognosis, and so on. These features would, I think, have taken the award out of the brackets relied on by Mr Doherty.

Accident 2 caused an exacerbation of the Claimant’s PTSD, initially severe but tapering off over the next two years. It also caused orthopaedic injuries which continued to cause pain for 12 to 18 months. There were headaches and generalised pain which were at least in part a consequence of Accident 2. I agree that the relevant brackets within the Judicial College Guidelines (13^th Ed) are:

Mr Meredith-Hardy for Mr Bejger suggests that the appropriate award for general damages should be £9,000. Mr Brindle suggests £12,500.

I conclude that the appropriate figure is £10,000 for general damages for pain and suffering and loss of amenity, attributable to Accident 2. Interest will be due in addition, on the usual basis of 2% pa from the date of service of proceedings.

I am able to reach a figure for redress / general damages for each of Accident 1 and Accident 2, considered separately, by adopting an assessment which is fairly “broad brush”. For reasons which I shall describe below, when it comes to assessing the impact of each accident on special damages and particularly on past loss of earnings, it is not possible to separate out the effects of each accident and I shall have to take a different approach.

SPECIAL DAMAGES

The Claimant came to the UK in 2000. She found it easy to obtain work during the years 2004 to 2011. She appears to have done well in her jobs and to have got good work reviews. But for Accident 1, she would have remained in gainful employment.

Although she had always wanted to set up her own jewellery business, I accept her evidence that the timing of M Ltd, and the scale of it, was a direct consequence of the injuries sustained in Accident 1: that accident caused her to give up her work at the DWP, she was unable to find employment elsewhere, and in those circumstances she decided to set up M Ltd. This was her attempt to rescue the situation. But for Accident 1, her situation would have been very different. Faced with being a single mother in 2011, it is probable that she would have opted to return to DWP after a generous period of (paid) maternity leave. Even if she had dabbled with a jewellery business while on maternity leave, the probability is that she would soon have realised that the business would be too demanding of her time when she had a young child to care for single-handedly, and she would have preferred secure and family friendly employment with the DWP.

She would not have simply sat back and lived off benefits as Mr Doherty argues. A life on benefits is not attractive to those who have choices and are able to work. Moreover, the Claimant had no track record of living off benefits, rather her track record was impressively industrious. My impression of the Claimant in the witness box was of someone who remained determined, even now (and despite her various problems). It is likely that she would have managed to provide for herself and her child, even if she found that difficult at times: she was that sort of person.

Both parties produced statistical evidence in support of their arguments; I prefer the statistical evidence produced by the Claimant’s employment expert, Mr Carter of Keith Carter and Associates (report dated 25 November 2015) based on a DWP survey which showed that 62% of lone mothers were likely to return to work; Compensa’s expert, Mr Halliday of Langman Ltd (report dated 19 November 2015) failed to identify clearly the cohort on which his different statistics were based (specifically, whether it included lone fathers as well as mothers) and so I am unsure of the applicability to those statistics to this case. In any event, I assess the individual, and statistics are of limited help.

It is reasonable to postulate a promotion, as the Claimant does in her Schedule. This would only be modest advancement, to the role of Higher Executive Officer earning £28,830 pa gross, together with an expectation of a modest performance bonus. The Claimant was good at her job and was going to remain at the DWP for some time once she had her baby. She was living in London and she would have wanted the extra income which accompanied a promotion, particularly if it did not entail longer hours, but rather greater responsibility during the hours she was already committed to work.

The total loss of earnings figure to the date of trial is claimed at £84,106.64, based on her earnings while at DWP. I conclude that the hypotheses which underpin this claim are reasonable: the Claimant would have remained working at DWP or some equivalent employer for the years to date, but for Accident 1.

The issue of benefits was raised very late in the day by Mr Bejger’s lawyers and was not explored properly through disclosure or evidence at trial. For that reason, I disregard the issue of benefits entirely for lack of evidence and argument in relation to Mr Bejger. It is agreed that a small amount of benefits (Jobseekers’ Allowance) should be offset against the award as it related to Compensa.

Of that total past loss of earnings figure, the loss for the period when the Claimant was suffering the effects of Accident 2, which lasted for 2 years, was approximately £42,964.29 (taking the figures for the tax years 2013/14, and 2014/15).

Mr Meredith-Hardy invites me to conclude that Mr Bejger cannot be held responsible for any part of that loss, which (he argues) would have been incurred in any event as a result of Accident 1, and was not therefore a consequence of Accident 2.

When it comes to attributing damages between Compensa and Mr Bejger, all parties in this case invite me to start the analysis with the words of Laws LJ in Rahman v Arearose Ltd [2001] QB 351:

“[29] … The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible. To make that principle good, it is important that the elusive conception of causation should not be frozen into constricting rules. …

[32] … Once it is recognised that the first principle is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible, the metaphysics of causation can be kept in their proper place: of themselves they offered in any event no hope of a solution of the problems which confront the courts in this and other areas.”

Mr Meredith-Hardy relies on other authorities, of which Reaney v University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 1119 is an example, to submit that I should ask myself the “but for” question: but for Accident 2, what would the difference have been? (To which hypothetical question he suggests the hypothetical answer, that Accident 2 made no difference and the Claimant would have been out of work in any event for the years 2013-15.) In Reaney, the Court cited with approval the following extract from Kemp and Kemp (136 Release) Ch 3, Ch 13-003 (see para 15):

“…it sometimes occurs that the Claimant who is injured had a pre-existing injury or disability which means that he was not capable of independent existence in the first place, and the effect of the injury for which a claim is made has been to increase or enhance the Claimant’s need for care. What is the correct position in law? In principle, one would have thought that the correct approach would be to compare the Claimant’s needs after the injury for which the claim is being made with his needs before he was injured, and to make a valuation between the two”.

In Reaney, the Claimant was already paralysed and wheelchair-dependent before she developed pressure sores through the Defendant’s alleged negligence. The Claimant’s pre-existing paralysis meant that she already had a care regime in place. There was thus a clear baseline against which the Court could assess how much, if any, additional or different care was needed as a result of the pressure sores.

There are other cases where the facts are not so straightforward and in consequence the damages cannot be assessed simply by comparing the before and after. An example of the latter category is Rahman v Arearose in which the trial judge (Rougier J) concluded that the psychiatric effects of two separate incidents “are entwined around each other like ivy strands round a tree”. Rougier J made separate awards against each tortfeasor for those heads of loss where it was possible to do so (for example, general damages), but for other heads (including past and future loss of earnings) he took a global view and assessed the extent to which each defendant had contributed to the Claimant’s loss on a percentage basis, that percentage reflecting his view of the causative potency of each incident.

I conclude, on the facts of this case, that it is not possible to separate neatly the effects of Accident 1 and Accident 2. This is not a Reaney case. This case better fits the Rahman mould. More specifically, this case falls into the following category, identified by Laws LJ in Rahman:

“[20] … it is shown that (a) each torfeasor caused some part of the damage, but (b) neither caused the whole, and (c) some part (but not all) of the damage would therefore have been occasioned to the claimant if only one tort – either of them – had been committed, but (d) on the evidence it is impossible to identify with any precision what part of element of the damage has been caused by which defendant.”

The Court confirmed that in such cases, in arriving at a “just conclusion”, the Court is at liberty to adopt a broad brush approach which has to be translated into percentages (para 23 of Rahman).

I conclude that is the correct approach here. I reject Mr Meredith-Hardy’s submissions to the contrary. I am not able to say that Accident 2 made no difference, or that the Claimant would have been unemployed in any event. I can only say that the combined effect of Accidents 1 and 2 led to her being unemployed for a period of two years. The just conclusion is that the two tortfeasors should share the losses between them.

As a further and related objection, Mr Meredith-Hardy argues that the Claimant had already abandoned her job at the DWP by the time of Accident 2, and so, he says, the loss attributable to Accident 2 cannot be based on lost DWP earnings. I disagree. Once the principle of shared responsibility for the losses is established, the rest is simply calculation. The DWP earnings can, in my judgement, be used to value the Claimant’s losses as a result of the combined effects of Accident 1 and 2 for the two years after Accident 2. As against Mr Bejger, they are a reasonable proxy for her lost earnings in that period.

I conclude that 75% of the loss for this period is attributable to Compensa and 25% is attributable to Mr Bejger. These percentages reflect the causative potency of each accident.

I reach this conclusion applying domestic law principles. It was not suggested to me that Polish law is inconsistent with domestic law on this aspect of the case.

That means that Mr Bejger is responsible for £10,741 of the past lost earnings. That figure falls to be offset against the damages due from Compensa under this head. Compensa’s share is therefore £73,366 from which it is agreed that Jobseekers’ Allowance of £2,311 should be offset, giving a total of £71,055.

These are claimed at £710.90 against Compensa. Compensa allows £300, noting that some of the claims relate to visits to solicitors and experts which are, strictly speaking, legal costs. The approximate midpoint is £500 and that is the amount I allow for present purposes.

Treatment costs are claimed at £1,879.00 against Compensa. These costs comprise psychiatric treatment and fertility treatment. In its counterschedule, Compensa advances a number of arguments to the effect that Mr Bejger is liable in part or in whole for the psychiatric treatment costs. I am satisfied that the costs claimed from Compensa are properly attributable to Compensa, noting the separate claim for medical treatment advanced against Mr Bejger.

So far as fertility treatment is concerned, Compensa argues that the Claimant’s fertility has not been impaired and there is no basis for this cost being compensated. I disagree. I shall deal with fertility costs more fully below, because there is an issue in relation to future costs under this head. I conclude, so far as past costs are concerned, that the Claimant had good reason to wish to consult a fertility expert, given the loss of her baby, and the effluxion of time since then, which has impacted adversely on her fertility. This cost was connected with, and a “normal consequence” of, Accident 1.

The past treatment costs of £1,879.00 are recoverable in full against Compensa.

Medication is claimed at £283.60 against Compensa. Compensa admits the claim for painkillers but disputes the rest of the claim, on the basis that the Claimant’s need for such medication was not proved or is not attributable to Accident 1. Most of the remaining cost is connected with the Claimant’s fertility concerns. I consider those concerns to be directly attributable to Accident 1 (and a “normal consequence” of them under Polish law). The claim for medication at £283.60 is allowed in full.

Miscellaneous expenses (mainly photocopying of medical records) is claimed at £46.69 against Compensa. These are agreed.

Interest will be due at the prevailing rate in Poland on that amount (on the basis outlined above), from the date falling 30 days after the date of claim.

I have dealt with past loss of earnings above. I conclude that the lost earnings attributable to Mr Bejger are £10,741.

Travel expenses are claimed at £528.55. Mr Bejger resists this claim. In the round, I allow £500.

The Claimant claims costs of medical treatment at £1,146.50. Mr Bejger does not agree these costs. I have found that the effects of Mr Bejger’s negligence endured for around 2 years post-Accident 2. The claim for medical treatment is sound. I allow the amount of £1,146.50 as claimed.

The claim is for £1,054 for 6 weeks’ care after Accident 2, provided gratuitously by friends. She relied on friends to drive her to appointments for the rest of 2013. Mr Bejger resists this head of claim, but does not advance any alternative figure suggesting that the claim is excessive and disproportionate, and consequently irrecoverable. I am satisfied that the Claimant has made out her claim for gratuitous care and assistance and that Mr Begjer’s various points lack substance. I award £1,054 under this head.

The Claimant claims £980.91 for medication. Mr Bejger resists this claim without advancing any alternative figure by way of offer. I am satisfied that this claim has been made out and that Mr Bejger’s various points lack substance. I award £980.91 under this head.

The Claimant claims £70 as the cost of clothing destroyed in Accident 2. Mr Bejger resists this claim. I am satisfied the claim is made out in the amount of £70.

The Claimant claims miscellaneous expenses of £225.79 for removal men to remove items from London to her new home, for a handyman to assemble furniture, for postage, and to cover the fee for access to medical records. Mr Bejger resists these various claims. I am satisfied that the Claimant has made out her claim, which I allow in the sum claimed of £225.79.

The Claimant claims interest on her past losses at half the special investment account rate. Mr Bejger resists the award of interest, and avers that interest is discretionary. So it is, but it is standard practice to award interest on past losses at half the special investment account rate and I see no reason to depart from that standard practice in this case. I leave it to the parties to arrive at the correct figure for interest.

FUTURE LOSSES

For reasons which will become apparent, I will take the heads of future loss in a different order from that in which they are set out in the Claimant’s Schedule and Compensa’s Counter-Schedule.

The Claimant claims the costs of three cycles of IVF in the total amount of £18,150. I have already summarised the report of Mr Sabatini, fertility expert. If the Claimant has that treatment, she is likely, on balance of probability, to conceive.

The basis of the Claimant’s claim is simple: she wants a child. She argues that but for Accident 1, she would have had a child. So this part of her claim is to replace that which was lost when the Claimant miscarried in 2011 (acknowledging that no lost child can ever be “replaced”, in truth).

Compensa denies this claim. It argues that the Claimant remains fertile, and can bear a child naturally. Compensa says that the problem is not her reduced fertility but her lack of partner, and that is nothing to do with Accident 1, but would have occurred in any event because the Claimant’s relationship with Haydn was never going to last.

The Claimant’s answer to Compensa is as follows: first, even if the relationship with Haydn had broken down, but for Accident 1 she would have been in an entirely different position, because she would by then have had a child. Secondly, she argues that she has been unable to meet anyone else to form a relationship, because of Accident 1, the effects of which have meant that she no longer socialises, because she feels depressed and she has no money.

In resolving this debate, the starting point must be to consider the Polish law question (because this head of loss falls to be assessed under Polish law), and ask whether the fertility costs would be seen as a normal consequence of Accident 1 and whether the treatment is necessary. Both Polish Law experts confirmed that if fertility is lost as a result of physical injury attributable to a defendant’s negligence, then a claim for fertility treatment would be recognised by the Polish courts. The experts were less sure of how the Polish courts would approach this claim if it was characterised as a form of treatment for the Claimant’s psychiatric injury (ie as treatment aimed at reducing the effects of her depression). But on the basis that the depression was directly attributable to Accident 1, Ms Budzowska thought that it would still be allowed, on that alternative basis. Dr Ludwichowska-Redo did not express a view whilst accepting that the argument was “not impossible”.

I conclude that the claim for fertility treatment is not, on analysis, a claim consequent on psychiatric injury at all. The claim is, at its most basic, a claim to enable the Claimant to be put back in the position in which she should have been in 2011, by having a baby. It is restorative in nature. Looked at in that way, the claim for fertility treatment is not consequent on the psychiatric injury at all, save that it shares the same trigger, namely Accident 1. It is a claim consequent on the loss of the baby by miscarriage. That was a physical injury. That being so, properly characterised this head of claim is consequent on physical injury. And the claim is a normal consequence of that physical injury, in the sense that by it the Claimant seeks to restore what was lost in Accident 1.

The Claimant’s loss of fertility is not absolute. Rather, her fertility is diminishing with time and age. She is now 40, and she is significantly less fertile than she was in 2011 when she lost the baby. She will continue to lose fertility year on year. Her reducing fertility is the reason she needs IVF. Time is pressing and she cannot afford to wait for a partner, or for better circumstances or health, before trying to become pregnant naturally. I am satisfied that this provides a genuine reason for her seeking IVF treatment. Quite simply, IVF treatment is necessary to restore the position.

I acknowledge that she might, if her life had turned out differently, have stayed with Haydn (unlikely) or formed another relationship after Haydn and then become pregnant naturally. If she had met someone else, and if she had got pregnant naturally, that would have been a way of mitigating the loss consequential on Accident 1, by giving her a child. But because she has not met anyone, she has been unable to mitigate in that way. That is not to be held against her. Specifically, Compensa cannot rely on the fact that she has been unable to mitigate her loss in that way in circumstances where she is psychiatrically unwell, struggling financially, and socially isolated. These are good reasons why she has not been able to form a new relationship. They all result directly from Accident 1.

I conclude that this head of claim is recoverable under Polish law as a normal consequence of Accident 1 which is necessary to restore the position. There is no dispute on the figures. I award £18,150 as claimed.

This is claimed at £3,300 to cover 22 further sessions of treatment to deal with future depressive episodes. Compensa offers £600 in its counter schedule. But the need, although not the specific approach, appears to have been broadly agreed by the psychiatrists in the joint statement and Compensa’s counter schedule does not accurately reflect the up to date expert position. Of the experts, I prefer Dr Gibbons’ more pessimistic (but I fear more realistic) view of the Claimant’s prognosis and future treatment needs. I award this sum in line with her view. It is reasonable. It will provide a fund for treatment to be used flexibly over the Claimant’s life time, as needed: £3,300.

The Claimant claims loss of future earnings on a multiplier / multiplicand basis, allowing her six months to get pregnant following the end of this trial (during which period it is said that she will not work), following which she will spend six months working with a careers counsellor, before obtaining work. Thereafter, so it is argued, she will re-enter the job market in an agency role in around a year’s time, before moving to a permanent role thereafter. The Claimant claims an ongoing shortfall between her lost earnings but for Accident 1 and her residual earnings capacity.

Compensa argues that she is fit for work and has been fit for work for some years now: there is no loss; alternatively, that her losses are modest, reflecting six months for treatment, and offered by Compensa at £5,935.

It is plain to me that the Claimant will suffer loss of earnings in the future. That will be through a combination of factors. First, she is currently not available for work because she wants to have IVF. The pressures of that treatment will keep her out of the workplace, reasonably so. Secondly, she is likely to have periods of recurrence of her depression. This is likely to lead to periods of unemployment. Thirdly, given her history, she is likely to find that even when fit for work, it will take her longer to find work.

Further, her career has been set back by all that has happened in the last 5 years, and she will not get back to her pre-Accident 1 earning capacity. There is an ongoing shortfall in her earning capacity, compared to her earnings but for Accident 1. That shortfall will be lifelong.

However, I do not consider that a multiplier / multiplicand approach is appropriate. There is much uncertainty about the Claimant’s employment aspirations for the future. I anticipate that she will now take some time to see if she can become pregnant; if she can become pregnant, then there must be a likelihood that she will choose to remain unemployed, and prepare for the baby, rather than go back to the workplace. If she has a baby, after all that has occurred, it is difficult to predict when she will choose to rejoin the work force.

Polish law permits a lump sum to be paid to reflect this head of loss. An English Court can do so by making a Blamire award (Blamire v South Cumbria HA [1993] PIQR Q1). That is my preferred approach to this head of loss, in the circumstances.

I allow for approximately 3-4 years net earnings, to compensate for periods when she may be out of work when she could have expected to be working, but for Accident 1. I add to the award an amount to reflect an annual shortfall in earnings for the remainder of her life. I do this on a broad brush basis, adopting round figures which are representative of loss rather than closely calculated. The resulting figure is £150,000.

The claim is for £3,000. The claim is denied by Compensa on the basis that it would have been required in any event, alternatively, it is a cost consequent on the Claimant’s failure to mitigate her own loss. I reject Compensa’s arguments, which are out of kilter with the psychiatric evidence about the impact of Accident 1, and with my findings on the causation of the Claimant’s mental health problems. This is a reasonable claim which I allow in full.

The Claimant claims £147,000 by way of loss of pension, based on a calculation prepared by specialist accountants, on the footing that the Claimant would have remained with the DWP until she was 67 years old. Compensa denies this head of claim on the basis that the Claimant’s employment with the DWP was not secure long term, and that anyway she will recommence pension arrangements once she gets back into the workplace.

I cannot accept that she would have remained at the DWP for the rest of her working life and I conclude it is very likely that at some point she would have moved to a different employer. It is therefore incorrect to value her long term pension loss by reference to the DWP’s current pension terms and conditions. Further, credit must be given for the pension entitlement she will now be able to generate through future work (and I am satisfied that she will go back to work, although the precise timing of that, and the nature of the work she will take on, is difficult to predict – see above).

In the round, I award £25,000 to compensate for loss of pension by reason of Accident 1. This takes account of accelerated receipt.

The Claimant claims £1,254.90 for travel to appointments for future psychiatric treatment. Compensa offers £100. This claim stands with the claim for psychiatric treatment which I have allowed in full, and is a good claim. I allow it in the amount claimed.

The Claimant does not claim any future losses against Mr Bejger. I agree that Accident 2 is not responsible for any of the Claimant’s ongoing losses.

CONCLUSION

I give judgment for the Claimant in the amounts set out in the table at Appendix 1.

I am grateful to all three Counsel for the considerable help they provided in written and oral submissions, and for their efficient presentation of the evidence.

APPENDIX 1