Complex Personal Injury, Medical Law, Other Areas of Law, Property, Chancery & Commercial, Travel & Cross Border Claims
Personal injury damages, a cunning new way of increasing claim value

It seems to me that claimant lawyers have done all they can to raise the quantum of personal injury claims on the care side of the special damages spectrum (we have long been familiar with the concepts of 24 hour paid care; “night awake” carers; 2 carers for certain types of claimant; private medical treatments; adapted properties; adapted vehicles; spare wheelchairs, etc etc), and combined damages under this head can now approach £10m for a young person in the most serious of cases. By comparison, the loss of earnings claimed in such cases is typically a relatively modest sum. But the latest plan to raise overall damages, particularly in cases where the medical care side may not sound in substantial damages at all, is to argue for business losses well beyond the actual earnings level of a given claimant at the time of an injury.

It works like this: mature adult claimant is earning (say) £50,000 a year at time of injury and has a loss of earnings multiplier of (say) 20. Ergo, future loss of earnings by the conventional route is £1m. That is seen as a derisory sum by hungry claimant litigation lawyers. Get the right claimant and you can attempt to persuade the court to ignore the conventional approach of actual earnings at the time of accident. Instead, evidence is gathered that the individual claimant was on the verge either of massively increasing his or her existing earnings and has lost the chance to do so (as in Johnson v Fourie, which was heard this February in the High Court, judgment currently awaited, in which a sum in excess of £60m was claimed by this method), or claim that a new business was in the pipeline, wholly different to previous employment, which would have led to earnings and/or profits in excess of £10m (as in the recent claim of XYZ v Portsmouth [2011] EWHC 243 QB 

Are there other examples of this approach?

How often is it successful?

Does this represent a developing area in the law on “loss of a chance”?

Any other comments?!




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