Foreman v Williams

This is a quantum only case following the Claimant's injury in an accident in a microlight aircraft on 5 July 2015. The Defendant did not attend the trial and for the reasons given below I proceeded to try the case in his absence.

The Claimant was born on 8 July 1962 and at the time of trial was 55 years and five months of age. At the time of the accident he was a few days short of his 53rd birthday. His friend, the Defendant, had invited him to come with him in the Defendant's microlight aeroplane at Wrekin Microlight Flying Club based at Shifnal airport in Shropshire. Four circuits of the airfield took place uneventfully, but on the fifth circuit, shortly after take-off, there was apparently a problem with the engine and from a height of approximately 200 feet the aircraft started to drift and then plunged nearly vertically to the ground. The aircraft caught fire and fortunately both the Claimant and Defendant survived, albeit with significant injuries.

The Claimant, through his solicitors, served a Letter of Claim on the Defendant on 26 October 2015 which was acknowledged by Plexus Law solicitors instructed on behalf of the Defendant's insurers. Liability was denied by them on behalf of the Defendant but subsequently Plexus Law made it clear that coverage under the Defendant's insurance policy had been declined, that they were no longer instructed and they understood the Defendant had moved abroad to Spain without leaving a forwarding address.

To cut a long story short, in an order dated 8 February 2017 Master Davison gave judgment for the Claimant in the absence of an acknowledgement of service or a defence. On 3 April the Master gave directions for the trial. I will have to deal with some of the background detail to the procedural position in the following sections of this judgment.

At the start of the trial the Claimant made an application for relief from sanction in respect of service of witness evidence, expert evidence and the schedule of loss on the basis that the inability to serve those documents in accordance with the directions order was occasioned by the Defendant's conduct. A detailed witness statement accompanied that application prepared by Ms Angela Batchelor, the solicitor with the conduct of the Claimant's case.

Following the involvement of Plexus Law, the Claimant's solicitors attempted to correspond directly with the Defendant. Proceedings were served on the Defendant's address and also an e-mail address. The hardcopy documents were returned advising that he no longer resided at the property and this was confirmed by the Defendant himself in a response from the e-mail address. The Defendant said he had not received the proceedings by e-mail.

Master Davison made an order on 25 November 2016 that service at the Defendant's address and by e-mail was good service and the claim form was deemed served on 20 September 2016. This was sent by the Claimant's solicitors to the Defendant. On 2 December 2016 the Defendant by e-mail said he had made attempts to communicate with the court and that he had sent an acknowledgement of service. However, no acknowledgement of service was received and, as I have indicated above, Master Davison entered judgment for the Claimant in an order dated 8 February 2017.

The Claimant was sent this order as well as the date and time for a case management conference on 3 April 2017. The Defendant responded by handwritten letter on 16 March 2017 stating that he could not take part in the case management conference as he had lost his mobile phone and that the e-mail address he used was now disabled. The case management conference proceeded in the absence of the Defendant and the subsequent order of 6 April 2017 was sent to the Defendant on 13 April 2017.

A handwritten letter was received from the Defendant dated 12 April 2017 stating that draft directions were not agreed. The trial was subsequently listed for 13 December and that notice was sent to the Defendant on 26 May 2017. The Claimant's costs budget and list of documents were served to the Claimant's Spanish address. A letter of 7 June 2014 enclosing the witness evidence was sent to the Defendant's Spanish address in accordance with the order of 6 April. However, on 14 June 2017 a handwritten letter from the Defendant was received by the Claimant's solicitors. He advised that he had been evicted and was of no fixed abode and that he would inform the Claimant's solicitors when he had a fixed address. The witness statements and accompanying letter were returned to the Claimant's solicitors marked 'return to sender' and 'Senor Williams is no longer here, please stop sending your post to this address'. The Claimant's solicitors have received no further correspondence or information about an address. It seems from the evidence provided that although the sending of e-mails to the Defendant's e-mail address produces an automatic response it appears that those e-mails are received. There is no 'bounce back' indicating that the account is disabled or non-functioning.

Another relevant feature is that the Claimant's solicitors became concerned by the Defendant's conduct such that they intended to issue an application for a freezing injunction in the event that the Defendant sought to dissipate his assets. To that end a search was done on the Defendant's UK address which identified that the property was in his name and the name of a woman, who is presumed to be his wife. Unfortunately there was a delay in that application being listed and a subsequent search at the Land Registry has identified that the property is now in the name of the woman only. The Claimant surmises that the Defendant has transferred the property into his wife's sole name in order to attempt to avoid having to meet any judgment debt.

I was shown e-mails of 11 December 2017 to the Claimant's e-mail address sending him the materials that otherwise he had not received namely, the Claimant’s schedule of special damage, the report of the Claimant's orthopaedic expert dated 7 September 2017 and the Claimant's application for relief from sanction. The Claimant's skeleton argument was also sent to this address.

The Claimant was in default of the order of 6 April 2017 because documents had not been served on the Defendant in accordance with those directions. Accordingly the Claimant applied for relief from sanction which I granted at the beginning of the hearing, for the reasons that now follow.

CPR 3.9 is applicable and states:

“3.9—Relief from sanctions

3.9

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a)

for litigation to be conducted efficiently and at proportionate cost; and

(b)

to enforce compliance with rules, practice directions and orders.

(2)

An application for relief must be supported by evidence.”

Guidance on this rule has been given in the now well-known case ofDenton v TH White Ltd[2014] EWCA Civ 906. There is a three stage test to be applied. The first limb of the test is to assess the seriousness and significance of the breach. In a case where the Defendant had been taking part in the litigation the failure to comply with the directions given for trial would be serious and significant. However, it is clear from the background and evidence that I set out above that the Defendant had been taking steps to avoid having anything to do with the litigation. The Defendant has had notice of the proceedings, he has been provided with a trial date, he has received the draft directions but frustrated attempts to provide him with the documents that he would require if he intended to take part in any trial. It seems to me unlikely, given his pattern of conduct, that he would have taken part in the trial in any case even if the documents had been served on time. I do not think it can be said that these 'failures’ by the Claimant have imperilled the trial date. What has happened is entirely the responsibility of the Defendant and caused by his own conduct. Therefore, in the specific context of this case, I do not see how the conduct of the Claimant can be considered serious or certainly significant. The second stage is to look at why the default occurred and is quite straightforward because it is entirely the fault of the Defendant. The third stage is looking at all the circumstances of the case to enable me to deal with the application justly. This also leads me to the conclusion that relief from sanction should be granted. If I were to find otherwise the Claimant would not be entitled to proceed with the substance of his claim and the Defendant would have frustrated justice by his conduct and Court time would have been wasted. Accordingly, I granted relief from sanction.

An application was made to proceed to trial in the absence of the Defendant under CPR 39.3. At the commencement of the hearing I granted that application with my reasons to follow. The reasons are the same as in the paragraphs above. Namely, the Defendant's conduct throughout these proceedings has apparently been an attempt to avoid them and to avoid the consequences of any judgment. The Defendant has had notice at various stages and an opportunity to take part or to make any application to the court but he has not done so. The Defendant may in any event apply for any judgment or order to be set aside under CPR 39.3(3).

I had a bundle of documents prepared by the Claimant including the various pleadings and court orders. There were four witness statements from the Claimant. The fourth witness statement corrected an error in the first witness statement as it had not been verified by a statement of truth. The Claimant gave oral evidence and confirmed the accuracy and content of his previous statements. The Claimant's wife had produced one witness statement and she gave oral evidence, which I will deal with below. A document was included in the bundle from Christopher Webb, but it was not verified by a statement of truth and Mr Cummins did not seek to rely on that statement in any case as he said it had been prepared for the liability trial which, in the event was not necessary. There were two reports from Mr Roger Tillman, consultant orthopaedic surgeon dated 18 April 2016 and 7 September 2017. The Claimant had also provided a schedule of special damage and future loss verified by the Claimant with a statement of truth dated 4 December 2017. There were also accompanying receipts evidencing some of the expenses claimed.

It is for the Claimant to prove his case even in the absence of the Defendant. In assessing the damages I have to provide full compensation which is fair, just and reasonable. It must be fair for the Claimant and not result in injustice for the Defendant, a matter of which I am especially aware of in this case as he did not take part in the hearing. Finally, any award must not be beyond that which society as a whole would think of as unreasonable.

On the basis of the evidence, I find the Claimant sustained the following injuries as a result of his accident:

There is no claim for psychiatric injury, but the Claimant describes the incident itself as a nose dive from around 200/250 feet, thinking that he was “dead” and then recovering consciousness and being trapped in the aeroplane, which was also on fire. He thought he would burn to death. He was rescued by a pilot (Mr Webb) who had seen the accident, as was the Defendant.

The Claimant stayed in hospital for approximately 2 weeks and had at least two operations on his feet during that time, one of which involved inserting metal wires into his great toe. The wounds were complicated by infection. Subsequently, on 1 February 2016 the Claimant had a further operation as a day case to fuse the joint in the middle of his great toe. Another operation was performed on 18 February 2017 to remove two screws from the right great toe following the previous operation. After that procedure he was discharged from the care of the Orthopaedic surgeons, the wound having healed.

The second report of Mr Tillman identified the following:

As I have indicated, the Claimant gave evidence orally and I found that he did so honestly to help the Court. The Claimant's evidence was that he does not sleep well. He is suffering from back pain requiring medication. It takes him 15 to 20 min to get started in the morning and he often has to ask his wife to help him to put his socks on. He does a normal day's work but is not as active at work as he was previously. When he comes home he is very tired with sore feet and cream is used on them on a nightly basis. He is unable to enjoy his previous DIY activities. Bending and lifting is something that he cannot do. The Claimant and Mrs Foreman both provided evidence that walking is painful for the Claimant and he is not able to walk as far as he could before the accident. This is particularly difficult as that was a pastime they previously enjoyed together.

There is no claim for psychiatric injury but the accident has had an impact upon the Claimant in terms of reducing his confidence, he said that life is more challenging and he feels like an older person. Mrs Foreman’s evidence was that the Claimant had lost his enthusiasm, his concentration had been affected and he was more irritable.

The Judicial College Guidelines for the Assessment of General Damages (14^th edition) including the 10% uplift following Simmons v Castle put moderate (i) neck injuries in a range of £21,910 and £33,750. Moderate (ii) neck injuries involve soft tissue and wrenching type injuries (which seems the Claimant did suffer) in the range of £12,050-£21,910. Foot injuries which are serious have a bracket of £21,910 to £34,370 and moderate injuries a range of £12,050 to £21,910. Minor head injury with no permanent brain injury has a range of £1,940 to £11,200. I was referred to the case of Evans v Lufthansa German Airlines reported on Lawtel ((1981) HL a 861: LT LPI 23/8/81) where £27,900 (uplifted for RPI) was awarded for a severe crushing injury to the foot where part of the foot had to be amputated. Chambers v Bromford Iron And Steel Companyreported on Lawtel as an award from Birmingham County Court had a value (uplifted for RPI) of £52,100. A steel coil caused a significant fracture of the foot with repeated operations with continuing pain and discomfort. I was also referred to an out-of-court settlement reported on Lawtel F v B from 2013 where the general damages were estimated to be £43,700 (uplifted for inflation) for a 45 year old man with a number of fractures to his right foot who was reliant on crutches for 3 and a half months and had continuing pain and stiffness.

I place more weight on the court awards than on the case of F v B but I treat the court awards with some caution as they are from nearly 40 years ago. I also bear in mind that the assessment of General Damages is not an exercise in adding together the possible awards from the number of injuries in a mathematical way, but a matter of judgment, looking at the circumstances as a whole, in order to determine the fair, just and reasonable level of compensation. I take into account that the cases to which I have referred do not fit neatly with all of the Claimant’s injuries. The Claimant seeks a sum of £42,500 and in my judgment taking all the factors into account that is the sum that I award.

The evidence is that the Claimant was away from work because of the accident and its consequences from the 6 July 2015 to 19 May 2016. The Claimant seeks past loss of earnings in the sum of £7,764.83. The Claimant has evidenced this with payslips and a calculation of his average earnings and deducted the pay that he in fact received. I therefore make an award in that sum.

The Claimant sought £400.80 by way of lost pension contributions during the time that his earnings were reduced. However, at the hearing the Claimant conceded that he was unable to claim his own pension contribution losses as this would amount double recovery given the award for loss of earnings. He was also unable to evidence the employer's pension contribution. There is therefore nothing to award under this head of claim.

In the Schedule the Claimant sought the sum of £13,358.69. This was based on aggregate rates and 10 periods of care. Having read the papers in advance of the hearing papers I e-mailed counsel to ensure that at the hearing I was provided with evidence to substantiate these claims. At the commencement of the hearing it was conceded by the Claimant that a 25% discount should be allowed for the gratuitous nature of the claim (it is care provided by the Claimant's wife). The basis for this deduction is that there is no income tax and national insurance payable and the rates are based on commercial rates. I am satisfied that the Claimant's concession of a 25% reduction is fair and reasonable.

The Claimant also broke the periods of past care down into 7 periods as follows:

The Claimant's wife gave oral evidence at the trial on the amount of care that she provided and the times of the day during which that care had been provided. Mrs Foreman explained that having reflected upon the number of hours of care that she had initially indicated she now thought that those claims were too high. I find that Mrs Foreman gave evidence truthfully and I accept that her initial views as to the amount of time that she spent caring for her husband were honestly held, but the evidence that she gave orally was a more accurate reflection of the level of care she provided.

After the accident she visited her husband every day and stayed outside visiting hours. She was doing more than just visiting him but also providing care and coordinating various visitors and the doctors’ visits. I accept her evidence that she provided six hours of care per day during this time.

Mrs Foreman had to undertake her husband's personal care including washing, shaving him and administering his medication. He had to be taken to appointments as well as undertaking additional food preparation and additional washing of bedding. Mrs Foreman stopped working during this period and I accept her evidence that on average she spent six hours per day caring for her husband over and above the usual domestic tasks that she would undertake.

The Claimant had gone back to work and he was able to wash himself in the shower. However he needed additional care, he was unable to go up and down stairs and therefore Mrs Foreman had to do this for him. He was also not able to help with the domestic tasks as he would do normally, such as food shopping. In addition, there were occasions at night when the Claimant had pain or needed a drink and Mrs Foreman would have to provide what was necessary. I accept her evidence that this was on average one hour per day of additional care.

The Claimant's mobility declined again following his surgery. It was necessary for Mrs Foreman to help him get dressed. She had to take him to the doctor to have dressings changed. I accept her evidence that on average during this period she provided an additional two hours of care per day.

Mrs Foreman still had to undertake tasks that her husband would normally undertake such as gardening and fetching and carrying. In addition, she had to massage his feet because of pain, cut his toenails and undertake household tasks that the Claimant would normally have done which involved bending down, as he was unable to do so. I accept her evidence that she provided during this period of time an average of four hours per week of additional care.

The Claimant's mobility was restricted following the operation to remove the 'metalwork' in his foot. He was on crutches. She needed to provide him with additional food, dress him and help him in the shower. The foot had to be covered in a plastic bag to enable him to shower. I accept her evidence that she provided an additional level of care of one hour per day during this period.

The Claimant had improved and was more mobile and able to drive. However, he had considerable pain in his feet and required the application of cream and massaging in order to relieve that pain, in particular at the end of the day's work. In addition, the Claimant was unable to bend and lift and Mrs Foreman had to undertake any such tasks, which she would not have done before the accident. I accept her evidence that she was providing an additional two hours of care per week.

The aggregate rate of the local authority spinal point 8 is a single hourly rate of pay that takes into account the fact that care may have been provided at antisocial hours, during the night and at weekends. The basic rate is applicable where care is based on a Monday to Friday daytime rate of pay. Having heard Mrs Foreman's evidence I am satisfied that at various points during the time that she cared for her husband she was providing this care in the evenings, at the weekends and sometimes during the night. However, from the seventh period her evidence was that the care was provided in the early evening. Assessing the evidence as a whole, in my judgment the aggregate rates are applicable and fair for the first six periods of care. However, I award the basic rate for the seventh period onwards.

I calculate this comes to a total of:

The care continues at the same level and rate as in the seventh period that I have identified above. The medical evidence confirms that there is unlikely to be any improvement in the condition of the Claimant's feet and this therefore justifies the continuation of the care. Accordingly, this is awarded at the basic rate with a 25% discount, for the reasons I have given above. However, the Claimant concedes that the care should only continue until the Claimant's 70^th birthday as at around that time it will be difficult, perhaps, to distinguish from care that may be required in any event. This is a sensible concession on the Claimant's part.

Therefore the future care I calculate as follows:

Multiplicand: 52 weeks @ 2 hrs / week – 25% reduction (gratuitous provision) on basic rate gives £5.93 /hr = 52 x 2 x £5.93 = £ 615.72 per annum.

Multiplier: the appropriate discount rate is -0.75%. The period between trial and the Claimant reaching the age of 70 is 14 years and 7 months. Table 28 gives a multiplier of 15.88 for a 15 year term certain and 14.76 for a 14 year term certain. In my judgment a multiplier of 15.3 is appropriate giving a total of £9,420.52.

The claim was for £1,604.37 which covered trips to the various hospitals and doctors’ appointments incurred by the Claimant and Mrs Foreman and by their daughter and son in relation to the Claimant’s injuries. In addition, The Claimant claims for the cost of driving to and from work, which is something that prior to the accident he did not have to do as he walked to and from his place of employment. Receipts were provided for a number of the journeys and parking costs. Mrs Foreman confirmed in oral evidence to me that the number of trips claimed were accurate. There was evidence from the Claimant of his need to travel by car to and from his place of work. Accordingly, I award the sums claimed.

The Claimant seeks his future travel costs to and from work in the sum of £3,291.87. This is based on a 2.6 mile round trip five times a week at a cost of £0.45 per mile. The multiplier is 12.09 on the basis that of retirement at age 67. I make an award in the sum claimed on the basis of the evidence.

The Claimant sought additional costs for items such as prescriptions, damaged clothing, additional clothing that had to be purchased as result of his leg injuries, wheelchair hire and a particular mattress. The Claimant conceded that the claim for counselling for Mrs Foreman was not recoverable in law and I agree. Invoices were provided except for the damaged clothing (understandably) but in my judgment the sums claimed were reasonable and accordingly I allow a total of £3,275.92.

The Claimant initially sought an award under this head of £5,000 but at the beginning of trial conceded that this was not recoverable. The Claimant is still in his current employment although he cannot undertake his job in exactly the same way as he did in the past. I agree that the evidence does not make out this head of claim and the concession was a sensible one.

In the Schedule, the Claimant seeks an award in the sum of £46,000. However, at the beginning of trial it was conceded that the claim would be for £23,000, which is approximately 1 years’ worth of earnings. The evidence, as I have already said, is that the Claimant remains in his current employment. However, the Claimant’s evidence is that a number of individuals at the same level as him within his workplace are at risk of redundancy due to restructuring of the company. The Claimant used to spend 80% of percent of his day on his feet, which is no longer possible but he now has a more paperwork based role. His appraisal in March 2017 was lower than his pre-accident appraisal grade. Mr Tillman's evidence is that the Claimant will no longer be fit for physically demanding or very active work or being on his feet all day. He will need to sit down for at least half of the working day. Mr Tillman states that the Claimant should remain fit to perform such duties until his normal retirement age. However, his opinion is that the Claimant will be left at a permanent disadvantage on the open labour market as result of the accident.

Although the Claimant remains in his employment, in my judgment, the evidence demonstrates that there is a real risk of the Claimant losing his job at some point in the future. In that event he will find it harder to obtain a new job. In these circumstances, an award to compensate him for such a risk is justified and given the Claimant's age and the consequences of his injuries and doing the best I can to provide a fair level of compensation, in my judgment the sum of £23,000 is appropriate and I make such an award.

The interest on general damages of 2% from the date of service of the proceedings comes to the sum of £1,611.30 (2% from date of service, 20-9-2016 to trial: 449 days = £65,500 x 2.46%). The Claimant sought interest at the full rate for the loss of earnings, however, at the hearing conceded this was not appropriate. Given the interest rate is so low detailed calculations make minimal difference but I award interest at half the special account rate on the past losses (£19,506.20 for 892 days at 0.25%) and I award sum of £119.17 for the interest on the past losses.

For the reasons I have given above, I award the Claimant the sum of £99,449.06 inclusive of general damages, special damages and interest as set out in the table below:

The starting position is that the winner should be awarded his or her costs. The Defendant has not taken part in these proceedings in a meaningful way. There is no evidence of any attempts being made to settle the claim. Accordingly, I award the Claimant his costs of the proceedings on the standard basis, to be subject to detailed assessment, if not agreed.