Damage control

Following the last update, there have been some interesting cases heard in the courts. The first of these is a child injury claim in which the High Court had to address a difficult issue when quantifying damages.

In Paul Tate v Ryder Holdings Ltd & Another [2014] EWHC 4256 (QB), the claimant (P) was knocked down by a bus when he was aged 11, which caused him to suffer severe brain injury. He was sadly left with serious cognitive and behavioural problems, which meant he was not able to live independently and required 24-hour care. He was subsequently noted to be very vulnerable and easily led astray.
P later engaged in alcohol and drug abuse and in 2014 was arrested for possession of an imitation firearm with intent to cause fear and violence.

Liability was apportioned 70/30 in P’s favour.
In relation to calculating P’s damages, the defendant (R) contended this ought to be discounted to take account of his pre-accident circumstances.

Before his accident and from a young age,
P underwent assessment for the purposes of preparing a statement of special educational needs. At the time, it was noted his language and problem-solving skills were poor. His test results were suggestive of moderate learning difficulties, and he was about three to five years academically behind his peers.

R’s neurology expert claimed P had a ‘dissocial personality disorder’ which he would have had even in the absence of the accident. However, during cross-examination, this expert was
unable to sustain his opinion and accepted P’s neurologist’s view that he developed an organic personality disorder resulting from the brain injury he sustained in the accident.

Speculative exercise

In the alternative, R argued the environment that
P was brought up in would, in any event, have
led him to the behaviour he engaged in after the accident. In particular, his father had a history of violence and was a serious sex offender. His mother was an alcoholic who had attempted suicide.
His friends were such that they were likely to have influenced him to engage in criminal behaviour.
In addition, given his existing learning difficulties, he would have experienced difficulty in obtaining and staying in employment.

While the court could see the force in these submissions, it was clear P’s post-accident symptoms arose directly from his organic brain injury, which necessitated 24-hour care. Because
of this direct link, the court considered it would be wrong in principle to discount these damages due to an ‘alleged risk’ of how P might have turned out in any event.

In addition, it would be difficult for the court
to evaluate how P would have developed and the quality of his life but for the accident. This was considered a speculative exercise. In any case,
his pre-accident circumstances were quite far removed from his present situation, where he needed 24-hour support.

The court therefore declined to discount
P’s damages. However, for different reasons,
a deduction was applied for his accommodation costs because of the likelihood that he would, in the future, spend time in custody by reason of criminal behaviour or under the Mental Health Act 1983. With regards to future care, a discount of 20 per cent was applied due to his risk of non-compliance.

This case serves as a reminder of the challenges in quantifying damages when someone is injured at a young age. Determining what might have occurred in any event can be speculative, but it is reassuring that in this case any uncertainty was resolved in the injured person’s favour.

This decision also confirms that the application of the ‘but for’ test is by no means clear cut, especially when a claimant’s future, in the absence of the accident, is uncertain.

Undercover officer

The courts revisited another doctrine in AB
v Chief Constable of X [2015] EWHC 13 (QB).
Here, the court considered and applied the doctrine of ex turpi causa. 

In this case, the claimant (A), an undercoverpolice officer, suffered psychiatric injury from an alleged breach of duty by the defendant chief constable (X).

A was an undercover police officer who was sent on an operation. While undercover, he misused cocaine on more than one occasion. When this was discovered, it was inappropriate for him to continue in an undercover role, which meant he was offered alternative employment. However, this turned out to be unsuitable, and he subsequently applied for retirement on the grounds of ill health, which was eventually granted by the police’s medical appeal board.

A claimed his psychiatric injury flowed from having to take retirement, which in turn arose from X’s failure to provide appropriate support while he was under cover. It was this failure that led him to drug abuse.

Both parties’ psychiatric experts agreed A had developed chronic adjustment disorder. This is a condition affecting social functioning and performance, which arises when an individual seeks to adapt to a significant life-changing or stressful event. These ‘stressors’ include events which affect the integrity of a person’s social network and other major life changes, such as going to school or becoming a parent. Normally these disorders are of a short duration, but those lasting more than six months are described as being chronic.

A claimed his disorder was caused by X’s breach in failing to, among other things, provide adequate support while he was undercover. However, the court found there was no evidence of any symptoms associated with this disorder before A was confronted about his cocaine use.

The court noted the profound impact this confrontation had on him. Previously, A was a highly respected undercover officer and even had a national reputation for the work. This incident and his subsequent ‘fall from grace’ were considered to have caused his disorder. As this was not linked to any breach, his case failed on causation.

On the question of breach, the court sought guidance from Sutherland v Hatton [2002] EWCA Civ 76. For the present case, it was found X had prepared a risk assessment for undercover work which identified various measures to control these risks. This proved X had foreseen the risk of injury to undercover officers. It was further noted that undercover officers were selected due to their ‘mental toughness’ and that they were rigorously trained to deal with physical and psychological pressures. A was subject to this training. Therefore, the evidence showed X had discharged his duty to A.

Ex turpi causa

The court further considered that this case
would fail under the doctrine of ex turpi causa.
The principle in Gray v Thames Trains Limited [2009]
UK HL 33 that you cannot benefit from your own wrongdoing was applied. For A’s case, the court went as far as to say it was ‘inescapable’ that
A’s psychiatric injury was caused by his own criminal act.

Reference was also made to Hounga v Allen [2014] UK SC 47. This highlighted some of the difficulties of determining when illegal conduct could bar a claim as a matter of public policy. It was considered that the best approach would be to ask, “What is the aspect of public policy which founds this defence?” and, “[I]s there another aspect of public policy to which application of the defence would run counter?”

In answer to the first question, the relevant principle of public policy would be to preserve
the integrity of the legal system. Therefore, damages awarded to somebody who was essentially profiting from an illegal or wrongful
act would infringe this principle. As concerns
the second question, there was found to be a contravening public policy in Hounga. In that case, the contravening principle was the prevention of human trafficking and the protection of its victims, even if they had entered the country illegally.

When applied to the circumstances of this case, it was clear that if A succeeded, he would be benefiting from illegal conduct. In addition, there was no other public policy to support his claim succeeding.

This case highlights the difficulties in advancing cases where there is related criminal conduct. Even if such conduct is causally related to negligence, public policy will intervene to bar the claim. Rather interestingly, in this case, the judge went as far as to say he did not consider it to be in A’s best interests for him to have brought this claim at all. The litigation and his appearance in court meant A was forced to relive upsetting and humiliating events, which may well have hampered his recovery. SJ

Vijay Ganapathy is a solicitor at Leigh Day

@LeighDay_law