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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mathieu v Hinds & Anor (Rev1) [2022] EWHC 924 (QB) (13 April 2022) URL: https://www.bailii.org/ew/cases/EWHC/QB/2022/924.html Cite as: [2022] EWHC 924 (QB) |
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Neutral Citation Number: [2022] EWHC 924 (QB)
Case No: QB-2018-004679
IN THE HIGH COURT OF
JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of
Justice
Strand, London, WC2A 2LL
Date: 13/04/2022
Before:
- - - - - - - - - - - - - - - - - - - - -
Between:
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Theo Huckle QC and Kara Loraine (instructed by Powell & Co) for the Claimant
Marcus Dignum QC and Hugh Hamill (instructed by DWF Law LLP) for the Second Defendant
Hearing dates: 8, 9, 10, 11, 14, 15, 16, 17, 18 and 24 February 2022
- - - - - - - - - - - - - - - - - - - - -
Judgment
Approved
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment
and that copies of this
version
as handed down may be treated as authentic.
Covid-19 Protocol: this
judgment
was handed down by the
judge
remotely by circulation to the parties’ representatives by email and release to Bailii. The date and time of hand-down is 2.00pm on Wednesday 13 April 2022
1: Introduction
June
2019, Master Gidden entered
judgment
for the Claimant with damages to be assessed. Accordingly, the hearing before me was limited to quantum issues.
very
good recovery from his injuries. He has gone on to enjoy a
very
successful artistic career. He lives in Canada, but his paintings and other works are displayed in galleries and exhibitions around the world including in the USA, the UK and China. However, his case is that the headaches, fatigue and cognitive issues from which he continues to suffer as a consequence of his brain injury have hampered his productivity, such that he is not able to produce and sell as much art as he would otherwise have been able to. The Second Defendant accepts that the Claimant suffered a serious injury for which he is entitled to some damages, but disputes the impact this has had on his productivity (not least because of his prolific artistic output since the accident) and argues that he has not mitigated his loss.
very
significant differences between the parties as to the
value
of the claim. The Claimant’s final Schedule of Loss provided before the trial sought damages of CAD (Canadian) $56,028,428, in total, equivalent to £33,617,057. The Second Defendant’s primary case was that the Claimant could prove no ongoing loss beyond the end of 2018. The Counter-Schedule of Loss proposed awards for general and special damages, an award of £49,500 for past loss (with certain caveats) and nothing for future loss.
(i) Whether the impact of the Claimant’s injuries on his daily life is as extensive as he claims;
(ii) Whether the Claimant has mitigated his loss by refusing to undertake certain treatment;
(iii) Whether any damages to reflect lost income should be awarded gross to reflect the prospect of the Claimant being taxed on them;
(iv) Whether the Claimant’s injuries have hampered his artistic productivity and if so to what extent;
(
v)
style='font:7.0pt "Times New Roman"'> Whether any award to reflect a suffer a shortfall in artistic productivity and thus income should be quantified using a multiplicand/multiplier approach or a ‘Blamire’ approach; and
(
vi)
style='font:7.0pt "Times New Roman"'> Whether the Claimant should be awarded provisional damages in relation to the chance of developing dementia due to his brain injury.
judgment
to record all the evidence given or to note all the arguments advanced. I have given careful consideration to all the material placed before me, but only refer herein to that which is necessary to resolve the key issues. I have reminded myself throughout that, save as otherwise specified, the Claimant bears the burden of proof.
judgment
is structured as follows:
Section 2: The facts and the evidence in overview (paragraphs 9-49)
Section 3: General damages for pain, suffering and loss of amenity (paragraphs 50-86)
Section 4: Mitigation of loss (paragraphs 87-131)
Section 5: Taxation (paragraphs 132-157)
Section 6: Past losses (paragraphs 158-231)
Section 7: Future losses (paragraphs 232-288)
Section 8: Provisional damages (paragraphs 289-358)
Section 9: Conclusion (paragraphs 359-360 and Appendices 1-3).
2: The facts and the evidence in overview
2.1: The facts
January
2015 he returned to Goldsmiths and won the competition for a solo show at the Institute of Contemporary Art (ICA) in London from a group of 200 students.
Mathieu,
to recuperate. The ICA show took place during December 2015, but the Claimant was too unwell to attend. He returned to London in mid-
January
2016. His Goldsmiths graduation show took place in
July
2016.
Joyner,
a well-known figure in the art world. Later that year she purchased one of his works that had been exhibited in a group show at a Miami museum. In
July
2019 he began a 7-month residency in Stuttgart, Germany.
very
best gallery groups in the world, featured two of his pieces in the ‘Social Works II’ exhibition.
just
before the start of the trial, the Claimant secured a show and representation with the London-based gallerist Pilar Corrias, in preference to White Cube with whom he had also been in discussions. He also arranged to conduct a
video
interview with Gagosian, who are showing more of his works.
2.2: The evidence
(a): The Claimant
(i): General observations
view
he was doing his best to answer difficult questions, understandably based on
various
accounts he had given clinicians over the years and the different estimates he had made of his lost productivity. He clearly has a well-informed insight into his illness, his symptoms and how best to manage them to enable him to retain his creative inspiration and output as much as possible. That is plainly his main focus in life.
James,
watched the Claimant give evidence. He suggested that the manner in which the Claimant presented was a factor for me to bear in mind when assessing the extent of his cognitive difficulties. I found there to be only limited force in this point. I considered that the Claimant’s neuropsychologist, Dr Laura Bach, was fair in saying that the court environment was more focussed and artificial than real life, and that the Claimant is someone who is known to “push” through his difficulties, such that his disabilities may well be “hidden”. The difficulties the Claimant has with concentration, memory and other cognitive issues are well-evidenced by the expert evidence, which were partly based on the neuropsychologists’ scientific assessments. The fact that English is his third language also had to be borne in mind.
very
successful Goldsmith’s graduation show (alongside the death of his grandmother and a general period of reflection about his Haitian roots). He has also spoken positively at times about the period of introspection and reflection forced upon him after the accident. However, it was perhaps unsurprising that he bristled at the questioning on this topic from the Second Defendant’s counsel. His responses on this issue did not therefore lead me to draw any adverse inferences as to his overall credibility.
(ii): The Claimant’s accounts of his symptoms
very
hard, and then “crashing”, such that he needed to rest, potentially for days. These crashes appeared to be related to the combined effect of headaches and fatigue. Since late 2019, he has reported this pattern as either working in a “burst” of two to four days and then needing to rest for two to three days or if he worked long hours (five to six hours) without a break being unable to work the next day. The Claimant explained this change in his account in late 2019 as due to the fact that he had tried to “block out” his symptoms and had not really appreciated the daily impact they had on him until he saw the statement Ms Correa had provided for his claim.
view.
just
can’t implement the strategies because it’s
just
too painful”. This chimed with the Claimant’s own evidence at trial: “I wanted to feel better than I did. I aspired to be better than I was…even now it is
very
hard for me to accept my symptoms”.
January
2017 to May 2019 save for a five-month break between October 2017 and March 2018. He confirmed seeing the Claimant sleeping, napping or “zoned out” regularly in the studio. This was not the Claimant engaging in the usual time an artist would take to consider a piece, reassess, reflect and plan. Further, there would be times when the Claimant worked intensely for several days, but could not maintain this, and would then not come in for several days. He was clear that he had continued to see this pattern throughout 2017, 2018 and 2019, prior to the first accounts the Claimant gave of this pattern towards the end of 2019. He rejected the suggestion that he had only seen the Claimant resting in the studio after the second road traffic accident, when he was on crutches, and I found his denial credible. Mr Kiernander accepted that he had only seen the Claimant in his studio on a couple of occasions before the accident, and so did not know how often he slept or rested at that time. However, the overall thrust of his evidence was that there had been a change in the Claimant since the accident, including as to his demeanour. There is no other evidence to suggest that the Claimant regularly slept in the studio before the accident.
(iii): The changing nature of the Claimant’s claim for lost productivity
value
of his claim had gone from
just
over £233,000 in
January
2019 to over £33 million in November 2021.
value
and popularity of the Claimant’s art has risen rapidly in recent years, as has his income. By way of example, his gross annual profit for the year ending 31 December 2016 was CAD $47,392 but for the year ending 30
June
2021 it was CAD $565,573.
varied
over time. His predictions changed from an estimated loss of five paintings a year in
January
2019, to 34 paintings a year (10 large, 12 medium and 12 small) in February 2020, to 10 large paintings a year plus a mix of other works including ceramics and mixed media works, estimated to be equivalent to four medium pictures in November 2021. It was put to the Claimant that he was “biddable” in this regard, i.e., that when certain models were suggested to him by others, such as counsel, he unduly readily approved them. I considered this to be an overstated criticism. As was pointed out by Mr Huckle, the Claimant does not work in a factory making identical components in set periods of time every day, which would make his lost productivity easy to assess. Rather, he produces paintings of different sizes and other art forms, he needs to engage in other related tasks such as research, planning, meetings and travel, and his accident took place at a time when his career was
just
beginning.
January
2019, he did not want to talk about the accident in any detail and simply wanted the litigation over. This chimes with Dr Bach’s evidence about denial referred to above and fits with his own evidence that it was not really until late 2019 that he began to accept the true impact of the accident on him.
very
difficult question, namely how much art, and of what sort, could he produce if he did not suffer the symptoms he does. In the most recent
variation
of his productivity model, he reduced his claim, which adds further weight to my
view
that his approach has throughout been honest and reasonable.
(b): The evidence from the factual witnesses
very
fast and is helped by using acrylic paints which dry quicker than oils, such that he was much more prolific than him and Mr Klein, who also shared the studio. He also described the adverse impact of the Claimant’s injuries on his social life compared to his “more
joyful”
pre-accident self.
January
2017 to
June/July
2018. His evidence was admitted as hearsay under CPR 33.2, because a late application to call his evidence by
video-link
was unsuccessful. I considered the factors set out in the Civil Evidence Act 1995, section 4 in assessing the weight to be given to his evidence. His witness statement provided general corroboration for the broad themes in Mr Kiernander’s evidence as summarised above, but I was conscious that his account would have been tested as Mr Kiernander’s was if he had attended to give evidence.
Mathieu,
the Claimant’s sister, was read as agreed evidence. She corroborated the support she had provided to him in the immediate aftermath of the incident and the symptoms from which he continues to suffer, which he had described to her and of which she had seen evidence.
video-link.
The Claimant explained that shortly before the trial, Ms Correa informed him that she was unwilling to give evidence unless he agreed to pay her 3% of any damages awarded, which he was unwilling to do. I found the Second Defendant’s suggestion that the contents of the witness statement she gave in November 2019, when she was still the Claimant’s partner, had been deliberately given so she could render herself invaluable to him and later extort money from him, unlikely to be correct. The Claimant said that Ms Correa had asked the Claimant’s solicitor “What’s in it for me?”. It therefore seems more likely that her suggestion to the Claimant was a misguided proposal to secure some financial recompense for the inconvenience of giving evidence. However, the unusual circumstances in which she did not attend the trial, and the fact that she could not be cross-examined on her substantive evidence or her proposal to the Claimant, inevitably impacted on the weight to be attached to her evidence to some degree. In any event, her evidence as to the impact of the Claimant’s injuries on him was largely corroborated by evidence from other sources.
video-link
under CPR 32.3 from Canada and the USA.
video-link
were less willing to subject themselves to forensic scrutiny, such that their evidence should be afforded less weight. The courts have become much more adept at accepting
video-link
evidence in recent years. The technology worked well in this case. The
video-link
witnesses were relatively brief. I did not discern any marked difference in the quality of the testimony or credibility issues with any of them.
Joyner
was read as agreed evidence. She is a long-standing collector of contemporary abstract art by African or African-American artists. She also sits on the boards of
various
major museums and art institutions in the USA.
(c): The expert evidence
James
for the Second Defendant. Overall, there were fewer matters of contention in this discipline than in the neurology. The main areas related to the cause of the Claimant’s headaches and whether he had failed to mitigate his loss by not undertaking further fatigue management sessions. Dr Bach’s written evidence was
very
detailed but her oral evidence less clear. Dr Nathaniel-
James
had failed to record that the Claimant suffers from headaches which was an anomaly in the evidence.
joint
statement process and he was a little offhand in giving his evidence. He had also had prior contact with the Claimant in a range of ways. However, he does have considerable expertise specifically in contemporary art, having worked in the field since the 1970s and curated early exhibitions for famous artists such as Anthony Gormley and
Jean-Michel
Basquiat. By contrast, Mr Sainty is an art dealer primarily in French and Spanish art from the early 16th to 20th centuries, with a wider interest in the modern and contemporary art market in London and New York. He was able to offer a broader historical, and fully researched, perspective on the art industry. There were occasions, however, when he appeared willing to opine on areas outside his expertise. In any event, there were relatively few differences between these two experts on the central issues.
James
Stanbury, a forensic accountant, who had quantified the Claimant’s past and future losses. I did not consider that the criticism levelled at him by the Second Defendant - that he had wrongly failed to “reality check” the assumptions he was being asked to apply - was merited. That was not his role. His role was to assist the court in calculating the Claimant’s losses and he had done that with care. The report of the Second Defendant’s forensic accountant was David Rabinowitz was taken as read. He had declined to provide any alternative calculation to those provided by Mr Stanbury as he considered it too speculative a model.
(d): Further evidence
volume
of research material on the dementia issue. I watched a 2016
video
interview in which the Claimant described his recovery and a short Quebec government promotional
video
showing some of the Claimant’s art.
3: General damages for pain, suffering and loss of amenity
3.1: The evidence of the Claimant’s injuries
(a): Overview
vision
and required a soft diet for two months. He was able to produce some work for his Goldsmiths graduation show in
July
2016.
visual
issues had largely resolved but he still had difficulties assessing depth. His foot injury had largely healed but he felt some pain on direct pressure and some aching after exercise. He had some scars on both shins. He reported symptoms of fear, a lack of trust, a loss of confidence and anxiety around others. He had not resumed swimming or going to museums and shows which he had previously enjoyed. By this point he no longer needed care and assistance.
(b): Headaches
veiled
suggestion from the Second Defendant that these documents should be afforded limited weight as they had been prepared for the purposes of the litigation. I accept the Claimant’s evidence that he was doing his best to record his headaches and work patterns accurately in these documents.
Mathieu
and Ms Correa (but I attached less weight to the latter given the circumstances in which she did not attend to give evidence).
James’
report. It appears that the Claimant did not
volunteer
the existence of the headaches during the interview, and that the doctor did not ask him about them, despite having sight of other medical reports mentioning them. There is extensive other evidence of the Claimant suffering headaches, such that Dr Nathaniel-
James’
report seems an anomaly in this regard.
(c): Other neuropsychological issues
view
was that the Claimant’s busy lifestyle was causing or at least contributing to his fatigue, I prefer Dr Bach’s evidence on this issue: excessive and disabling fatigue is a well-known consequence of a traumatic brain injury, and the Claimant records problems of fatigue far greater than one might expect for a young man in his position, even with a
very
busy lifestyle, especially one who thrived on the “buzz” of his work. The Claimant also detailed the busy lifestyle he enjoyed before the accident, when he did not suffer fatigue of this kind.
James
agreed that the Claimant does not currently suffer from a clinical mood disorder, but is likely to continue to suffer short, mild periods of anxiety and frustration
Mathieu
and Ms Correa. Ms
Mathieu
also described his avoidance of non-work-related social events and how he tires at family gatherings. Mr Kiernander said the Claimant has limited his socialising in groups since the accident, noting that he “finds it difficult…to cope with the stimuli of having lots of people around him”. He also said that the Claimant has been much less sociable on a one-to-one basis since the accident.
3.2: The parties’ submissions on general damages
Judicial
College Guidelines for the Assessment of General Damages in Personal Injury Cases (the Guidelines). This “moderate brain damage” category applies to “cases in which concentration and memory are affected, the ability to work is reduced, where there is a small risk of epilepsy, and any dependence on others is
very
limited”. The 15th Edition of the Guidelines indicates that injuries of this nature merit awards of £41,000-£86,000 with the 10% uplift.
v
Plummell [2014] EWHC 4309 (QB) in which the equivalent of £88,215.73, with the 10% uplift, was awarded to a claimant who suffered from a cluster of cognitive, physical and behavioural deficits attributed to a brain injury. These included headaches, tunnel
vision,
difficulties with short-term memory, concentration and organising and planning. He sometimes made inappropriate comments and was susceptible to uncontrollable outbursts. Wilkie
J
held that the case fell on the cusp of categories (c)(ii) and c(iii) in the Guidelines.
v
Bahr (2012) WL 13152631 in which the equivalent of £66,468.96, with the 10% uplift, was awarded to a claimant who suffered
various
psychological symptoms which affected his ability to work and his future career prospects. These included disinhibition, poor temper control, aggression, impatience, fatigue, difficulties with concentration, memory, organisation/sequencing, planning and multi-tasking, slowness of mind and attention and an intolerance to alcohol. He suffered anxiety, obsessive compulsive disorder and depression.
Van
Wees
v
Karkour [2007] EWHC 165 (albeit for the purposes of the Blamire argument). This case also involved a claim by a highly intelligent claimant who suffered constant headaches, fatigue and
various
cognitive impairments, who could not function at the same high professional level as she would otherwise have done. At [160]-[161] Langstaff
J
awarded her £42,500 in general damages, equivalent to
just
over £62,700 today.
“…the injured person will have made a good recovery and will be able to take part in normal social life and to return to work. There may not have been a restoration of all normal functions so there may still be persisting problems such as poor concentration and memory or disinhibition of mood, which may interfere with lifestyle, leisure activities, and future work prospects. At the top of this bracket there may be a small risk of epilepsy. The level of the award within the bracket will be affected by (i) the extent and severity of the initial injury; (ii) the extent of any continuing, and possibly permanent, disability; (iii) the extent of any personality change; (iv) depression”.
3.3: Analysis and conclusion
various
symptoms. Dr Bach explained that if the Claimant struggles with memory and concentration, this can cause anxiety and low mood, which can cause fatigue and bring on a headache, which can then impact on memory and concentration, and the cycle continues. Dr Orrell said that there is a “complex inter-relationship” between them and “they all overlap”, and Dr Nathaniel-
James
agreed that his symptoms are all “inter-linked” and “self-reinforcing”.
vary,
but they are certainly there relatively frequently; most days he wakes with fatigue and if he pushes himself, he may get headaches” [my emphasis] an accurate summary. It reflected my assessment of the totality of the Claimant’s evidence, the contents of his diaries, the accounts he has given others and the evidence of Ms
Mathieu,
Mr Kiernander and Ms Correa.
very
significant energy to coming to terms with the consequences of this life-changing accident, in understanding what it means for his own identity and in achieving an unusually good recovery. I do not believe it an understatement to say that he has focused on little else since the accident, other than fighting hard to preserve his artistic career, often at the expense of his personal and social life. The latter is also rendered more challenging for him, and this is limited, due to his concentration issues.
very
good recovery from a serious injury, his “ concentration and memory are affected” and his “ability to work is reduced”.
very
limited”. As explained below, I consider that the chance of the Claimant developing epilepsy should be addressed by a provisional damages award. There are no aspects of the Claimant’s life in which he is now dependent on others. These factors mean that any award should not be at the top of the band for this category.
view
the appropriate award under this head is £60,000. This is appropriately within the middle of the band of damages for category 3(c)(iii). It takes into account the initial pain and suffering the Claimant endured and the ongoing significant adverse impacts on his daily life as described above. It also reflects the fact that the Claimant does not suffer from the behavioural deficits which merited higher awards in Siegel and Mann; nor has he actually lost his
job
which was a factor in the
Van
Wees award.
4: Mitigation of loss
4.1: The law and the issues
(i) A claimant must take all reasonable steps to mitigate loss consequent upon the defendant’s breach and will be debarred from claiming “any part of the damage which is due to his neglect to take such steps” (British Westinghouse Electric and Manufacturing Co Ltd
v
Underground Electric Railways Co of London Ltd (No. 2) [1912] AC 673 at 689, per
Viscount
Haldane LC).
(ii) In mitigating their loss, a claimant is only required to act reasonably and is not required to do anything outside the ordinary course of events. The standard of reasonableness is not high given that the defendant is an admitted wrongdoer (McGregor on Damages (21st Edition), paragraphs 9-079 and 9-082).
(iii) That said, a claimant must to some degree act with the defendant’s interests in mind as well as their own; and while a claimant might have acted reasonably as far as they are concerned, the issue is whether they have acted reasonably as between themselves and the defendant, in
view
of the need to mitigate their loss (McGregor, paragraph 9-081 and Darbishire
v
Warran [1963] 1 WLR 1067, CA, per Harman LJ at p.1072).
(iv) Whether a claimant has mitigated their loss is a question of fact not law (Payzu
v
Saunders [1919] 2 KB 581, CA).
(
v)
style='font:7.0pt "Times New Roman"'> The defendant bears the burden of proving that it was unreasonable for the claimant to take certain steps in the past or would be so unreasonable in the future (see, for example, Steele
v
Robert George and Co (1937) Ltd [1942] AC 62 and Sainsburys Supermarkets Ltd
v
Visa
Europe Services LLC [2020] UKSC 24 at [211]).
(
vi)
style='font:7.0pt "Times New Roman"'> A defendant proposing to argue for a claimant’s failure to mitigate must give notice well before the hearing by the statements of case or otherwise (Geest Plc
v
Lansiquot [2002] 1 WLR 3111 PC at [16]) and must put forward a “concrete case” to demonstrate what the claimant might reasonably have done (Samuels
v
Benning [2002] EWCA Civ 858 at [26]).
v
Wallis [1966] 1 Lloyds Rep 357, CA, where the medical evidence was finely balanced as to whether a slight operation would have cleared up the claimant’s headaches. The same applied in Geest, where no doctor had advised on the prospects of success of an operation or on the risk, however small, that the operation would lead to a worsening of her back pain.
v
Scruttons [1954] 1 Lloyds Rep 395, CA, McAuley
v
London Transport Executive [1957] 2 Lloyds Rep 500, CA, Morgan
v
T. Wallis Ltd [1974] 1 Lloyds Rep 395, CA and Noble
v
Owens [2008] EWHC 359 QB Their reasons included an unwillingness to go to a mental hospital (Marcroft) and a “mental block” caused by a genuine fear that was beyond the plaintiff’s control (Morgan). In McAuley the plaintiff had not followed a suggestion made to him by the defendant’s doctor or gone to his own doctor for an opinion (per
Jenkins
LJ at p.505).
v
Lloyds TSB [2004] EWCA Civ 1526, the Court of Appeal, unusually, interfered with a trial
judge’s
finding that a claimant had acted unreasonably by refusing injections aimed at improving her back pain because the
judge
had failed to give proper regard to (i) her understandable anxieties about the proposed treatment, especially given that she had been given no guarantees as to its success; (ii) the fact that her GP (whom she trusted) was sceptical that the treatment would be beneficial; (iii) the fact that the doctor who recommended the treatment could give no guarantee as to its success; and (iv) the doctor’s own
view
that her decision was reasonable.
v
BBC [2021] EWHC 2638 (QB), Yip
J
found that it was not unreasonable for the claimant to have refused to take anti-depressants when he had a complex mixture of brain injury and psychological injuries which influenced his decision. Further, the consequence of his taking the drugs and the impact on his losses was not clear: [204] and [206]-[207].
4.2: The issues
very
high damages for losses based on headaches/fatigue, his failure even to try the suggested interventions is unreasonable and against the body of medical advice and common sense.
4.3: Treatment aimed at preventing headaches
(a): The evidence
(i): The potential benefits and risks of preventative medication
view
was that if the Claimant took such medication, while stopping the over-the-counter analgesics he is currently using, and perhaps undertaking a postural/relaxation exercise programme, this was “likely substantially to ameliorate [the Claimant’s] headaches to no more than a nuisance level within 3 to 6 months”. He said at trial that the sedative effect of amitryptiline might also help the Claimant’s sleep. Going forward, he thought that if the Claimant’s headaches and sleep improved, then his fatigue would be ameliorated, though the extent to which that would occur is not entirely predictable.
view
over to the neurologists’
joint
statement, recording his
view
that he considered it unlikely that amitriptyline would relieve the Claimant’s headaches.
volte
face” as to the efficacy of the medication. He agreed that it can be used to treat headaches in the location in the head the Claimant was describing (although he felt the location was unclear). It was apparent that by the time of this report the Claimant had indicated that he did not want to take the medication, but Dr Orrell said that that was not the reason for his comment about the effectiveness of the treatment. I therefore remained unclear as to what Dr Orrell meant in this part of his report. However, he later also said that he was not sure how effective the medication would be on the Claimant’s overall presentation: if it was the fatigue which was so disabling that he had to go to bed, taking the headache out of the equation would not necessarily solve the issue.
very
slowly and withdraw it if it is not working. The aim is to ensure that any sedative effect has worn off in the morning. Dr Foster agreed that it is possible to “tinker” with it. In his May 2021 report, Dr Foster noted that amitriptyline was one option but there were a number of others including duloxetine which is “much less sedating”. Dr Orrell agreed that there are alternatives to amitryptiline.
(ii): The potential benefits and risks of continuing with over-the-counter medication
(iii): The Claimant’s position
(iv): The advice the Claimant has received
(
vi):
The experts’
views
of the Claimant’s position
(b): Analysis and conclusion
very
significant efforts and substantial sacrifices and has achieved a
very
high level of recovery and function. This has largely been with the aim of ensuring he can maintain as normal an artistic life as possible. In my
view
there is force in Mr Huckle’s submission that the Claimant has now mediated a way of living with his symptoms, and it is not unreasonable for him to maintain that.
view,
it is entirely understandable for him to decline medication which might generate two side-effects of which he is particularly fearful: further drowsiness that is likely to dull his creativity and further cognitive decline in the form of dementia that would be likely to have the same effect. Indeed, from my assessment of him it is hard to imagine two side-effects he would be less willing to tolerate. Given the focus on his art this is an understandable position for him to take.
views
on the issue makes it harder to find that the Claimant is acting unreasonably.
view
that the medication changes would be likely to substantially improve the Claimant’s headaches, but even he accepted that the extent to which this would impact on his sleep and fatigue could not be easily predicted. Dr Orrell was clear that the fatigue would likely remain, and this significantly adversely impacts on the Claimant’s life. In those circumstances I do not consider that the Second Defendant has provided a sufficient evidence base for reducing the Claimant’s losses.
4.4: Further fatigue management sessions
(a): The evidence
Vahober.
These ran from September 2017 to August 2019. In her 26 February 2020 report, Dr Bach recommended that the Claimant have 10-12 further psychological sessions of CBT or Acceptance and Commitment Therapy (ACT), psycho-education and fatigue management. In his report from the same month Dr Nathaniel-
James
also recommended neuropsychological intervention. The Claimant has not done these further sessions. At trial he said that he did not recall Dr Bach advising him to have more sessions. Thus, it does not appear that he has consciously declined to follow the neuropsychologists’ advice.
view
as to the efficacy of further neuropsychological input at this stage changed. When she saw the Claimant on 11 March 2021, he said he felt that it was not the right time to start further input and that he wanted to continue working on his adjustment by himself. She felt it was “appropriate for [him] to try and self-manage as this can reinforce his sense of autonomy, efficacy and confidence in the strategies”. She explained in the second
joint
statement that she felt he was employing CBT and evidence-based cognitive compensatory strategies such that further input would not make any material difference to his fatigue and its impact. I found this explanation from Dr Bach clear and consistent.
very
focussed on his emotional adjustment to the accident and on cognitive strategies to implement and should be commended for the dedicated work he has done in therapy.
joint
statement recorded that Dr Nathaniel-
James
was only in “some disagreement” with Dr Bach on this issue. He felt that the Claimant would likely benefit from further CBT fatigue management input at this stage, and at the
very
least should submit himself for an assessment to ensure he was correctly employing the necessary strategies. At trial, he said he was “not necessarily” critical of the way in which the therapy had been carried out in Canada. He agreed that the Dr Gartenberg sessions had focussed on memory and coping strategies and that the Claimant felt they had been successful which was “as much as you could hope for” as such therapy must to a large extent be patient-led.
(b): Analysis and conclusion
view,
the Claimant had not been given fair notice of this issue by the Second Defendant. The pleading of the mitigation of loss issue in the Counter-Schedule only referred to treatment for headaches. I do not see how it can properly be read as referring to the issue of further fatigue management. There is no mention of Dr Bach’s recommendation nor any assertion of the likely outcome if the Claimant had complied with it. I therefore consider that the Second Defendant has failed to comply with the pleading requirements set out in Geest and Samuels in respect of this element of the mitigation argument.
James’
views
about what the Claimant should do at this stage in terms of fatigue management were expressed in a rather “lukewarm” way. Dr Bach was clear that she considers the Claimant has done
very
well with respect to his psychological input and is acting reasonably with the approach he is taking now. Both experts agreed that this sort of therapy needs to be patient-led.
5: Taxation
5.1: The issue
Volume
29, Damages: “…where damages are not taxable but go to replace income that would have been taxed, tax is deducted. So, for instance, in the case of damages for lost earnings in a personal injury claim, the would-be income tax payable on such earnings is subtracted from any award”.
v
Gourley [1956] AC 185, HL. In that case, a plaintiff was injured by the negligence of the defendants. The trial
judge
awarded him £37,720 damages in respect of past and future loss of earnings without regard to the income tax and surtax he would have had to pay on the amount of such earnings had he not been injured. If taxation had been taken into account, the award would have been £6,695. It was agreed that the plaintiff would incur no future tax liability on the £37,720 or the £6,695. The House of Lords (Lord Keith dissenting) reversed the decision of the Court of Appeal, to hold that the
judge
ought to have taken the tax position into account. The plaintiff’s award was reduced to £6,695.
v
HM Treasury [2019] EWCA Civ 449 at [53]: (i) in English private international law, foreign law is a question of fact, to be proved by a duly qualified expert in the law of that foreign country and the function of such an expert extends to both the interpretation and application of the foreign law; (ii) the burden of proof rests on the party seeking to establish the proposition of foreign law in question; and (iii) although the English court will scrutinise the evidence adduced, it will not undertake its own researches into questions of foreign law, any more than it will into other areas of evidence.
joint
expert on the issue. Each side then took the
view
that the other bore the burden of proof on the point for the legal reasons discussed below and so declined to instruct their own expert. It is perhaps unfortunate that this issue was not resolved before the trial commenced, given the sums of money potentially involved.
5.2: The parties’ submissions
v
Wood Mitchell [1980] 1 WLR 254, CA. In that case the claimants’ land had been subject to a compulsory purchase order. The claimants and the acquiring authority agreed a sum of compensation for certain losses between 1969 and 1971 while their business was being re-established. However, there was a dispute as to whether the gross sum should be adjusted to take into account corporation tax, in accordance with West Suffolk County Council
v.
W. Rought Ltd. [1957] AC 403 (in which the House of Lords had applied the Gourley principle to compensation payments for compulsory land acquisitions). The Lands Tribunal held that the compensation was in the nature of income and was to be treated as a trading receipt in the hands of the claimants. Therefore, as the claimants were liable to pay corporation tax on the sum received, they were entitled to compensation assessed without deduction of tax. The Court of Appeal dismissed the acquiring authority’s appeal.
judgment
of the Court of Appeal in Wood Mitchell noted at pp.258H-259A that there was an “important distinction” between the Rought case and the present case because in the former the Inland Revenue had made plain that in their
view
no income tax was chargeable on the compensation in question and the House of Lords proceeded on the assumption that that
view
was correct. However, in Wood Mitchell, the Inland Revenue had “written no such letter nor given any such assurance. On the contrary, an exchange of letters between the claimants and one department of the Inland Revenue suggested that capital gains tax would or might be payable”. He then explained at p.259C-D that the position of the Inland Revenue was “of importance”: if the Inland Revenue ultimately levied tax on the compensation which had been paid net in application of the Rought case, a “grave injustice would have been done to the claimants”: this was because, in simple terms, there was a risk that they would be required to give credit for taxation twice (once in the initial calculation of the damages and then again in the future taxation of the award).
We take the
view
that the principles laid down in West Suffolk County Council
v.
W. Rought Ltd. can only be applied if after examination of the relevant statutory provisions it is clear beyond peradventure that the sum in question would not be taxable in the hands of the claimants. If that is clear, then it would be wrong to require the acquiring authority to compensate the claimants beyond the amount of the loss which the claimants would in truth suffer. But if it is not, then it seems to us unjust that in a doubtful situation the acquiring authority can get the benefit of a reduced payment while leaving the claimants exposed to the risks we have mentioned. Considerations of abstract
justice
might be thought to suggest that the claimants should receive the full sum and then in due course account to the Inland Revenue for any tax properly chargeable upon that amount” [my emphasis].
Volume
11, paragraphs 9-001, 9-004 and 9-025.
judgment
as a result of personal injury are taxable; and (ii) Montreal (City of)
v
Wilson Davies, 2013, QCCA 34, a decision of the Court of Appeal in Quebec, which was said to be authority for the proposition that damages to compensate
victims
of personal injury are not subjected to taxation ([67] and [89]). Mr Huckle submitted that no regard should be had to this Canadian law material as this would be tantamount to the court carrying out its own investigation. In any event, Wilson Davies is difficult to understand, dates back to 2013 and does not give clarity as to what this Claimant’s tax position would be in 2022.
5.3: Analysis and conclusion
“The presence of two factors was necessary to set the stage for the problem which was posed for their Lordships’ decision in Gourley’s case: (1) the sums for the loss of which the damages awarded constitute compensation would have been subject to tax; and (2) the damages awarded to the claimant would not themselves be subject to tax.
For there cannot be any reason for taking tax into account in calculating damages given in compensation for a loss which would never itself have been taxed; this would let in a taxation where no taxation would have been, which would be unfair to the claimant. Equally there cannot be any reason for taking tax into account in calculating the damages if the damages themselves will then be taxed in the same manner as the loss compensated would have been taxed: this would result in a double taxation, equally unfair to the claimant”.
variations
for the calculation of tax on dividends on capital gains), whereas Mr Stanbury’s report dated 4 October 2021, paragraph 3.05, suggested that the Claimant is liable to pay Corporation Tax on his pre-tax profits and Income Tax and Social Security deductions based on his post-tax profits. For me to seek to resolve this issue would also appear to fall foul of the Bank Mellat principle that an English court should not undertake its own research into questions of foreign law.
view,
as a matter of English law, the Wood Mitchell principle applies. That principle is to the effect that the Gourley or Rought netting exercise is not undertaken unless it is “clear beyond peradventure” that the damages in question will not be taxed in future.
judgment
is that it shifts the burden of proof to a defendant: “After a period of uncertainty the Court of Appeal…in…Wood Mitchell held that it was the defendant’s onus to show that factor (2) is satisfied, so that their failure to do so ousts the Gourley rule”. The point is repeated at McGregor at paragraph 52-005.
judgment,
Mr Dignum rightly drew my attention to p.413 of Rought, where Lord Morton held that it is for the party claiming losses “to prove the loss which they have suffered”. In Rought, this required the company whose land had been acquired to prove their lost profits taking into account the incidence of taxation. The passage continued by indicating that the other party might then criticise the figures and the court would ultimately decide on the correct approach. However, I agree with Mr Huckle that this passage is directed at how the losses for which compensation is to be awarded would have been taxed, for the purposes of any netting exercise, and not who bears the burden of proof on the question of future taxation.
view
the Gourley rule is ousted. However, in my
view
the fact remains that - whichever side bore the burden of proof - the taxation position remains unclear, such that Wood Mitchell applies.
6: Past losses
6.1: Past lost income
(a): The legal principles relating to the lost income claims
v
South Cumbria Health Authority [1993] PIQR Q1 was appropriate.
judge
made a global award to reflect the risk of loss of future earnings and pension benefits and the plaintiff’s future
vulnerability
in the market. The Court of Appeal upheld his approach on the basis that there had been “far too many imponderables” for him to have been bound to adopt the conventional multiplier/multiplicand approach; further he “had well in mind that it was his duty to look at the matter globally and to ask himself what was the present
value
of risk of future financial loss. He had in mind that there was no perfect arithmetical way of calculating compensation in such a case. Inevitably one is driven to the broad-brush approach. The law is concerned with practical matters…and
very
often one is driven to making a
very
rough estimate of the damages” (per Balcombe LJ at Q5-6, in part quoting Lord Reid in Gourley).
v
Atlas Ward [2008] EWCA Civ 194, the Court of Appeal made it clear that
judges
should not adopt the Blamire approach too easily. At [19]-[21] Keene LJ held that “[a]ll assessments of future loss of earnings…necessarily involve some degree of uncertainty…Merely because there are uncertainties about the future does not of itself
justify
a departure from [the conventional] method.
Judges
should therefore be slow to resort to the broad-brush Blamire approach, unless they really have no alternative”. At [16]-[17] Ward LJ observed that the only uncertainty in Bullock related to whether the claimant would achieve a certain level of earnings. In those circumstances the court was “not only able…but bound” to use a conventional approach as “a much more appropriate method for fairly assessing damages”.
Van
Wees
v
Karkour [2007] EWHC 165 at [134] Langstaff
J
adopted the global sum approach to assessing the Claimant’s employment prospects, because he considered that there were “too many possibilities and too many uncertainties” about her likely career path. These related to multiple chances of her having reached
various
positions and uncertainties over accurate salary rates, rates of pay progression, dates of promotion and the likely influence of other possible factors such as working abroad, being paid in different currencies and being subject to different tax regimes. That said, the data available to the
judge
enabled him to perform a “more calculated” assessment than had been used in Blamire.
v
Duchon [2020] PIQR P4, the Court of Appeal upheld a trial
judge’s
use of the Blamire approach where that had been a “wholesale insufficiency” of evidence: the only evidence before the trial
judge
was “a letter from a friend, a snapshot of unsuitable
jobs
…from one…website, and
various
assertions from the Claimant, a number of which were specifically rejected”. The Court noted that “if the only issue had been one of uncertainty” the conventional approach could have been used: [34] and [38].
v
Davis [1993] PIQR Q87 (loss of a two-thirds chance of becoming a principal lecturer), Doyle
v
Wallace [1998] PIQR Q146 Q87 (loss of a 50% chance of becoming a teacher), Langford
v
Hebran [2001] PIQR Q13 (loss of
various
chances of escalating success as a kickboxer) and Collett
v
Smith [2008] EWHC 1962 (QB) (loss of a 60% chance of playing in the Premiership for a third of a footballer’s career).
(b): General observations regarding the claim for past lost income
(i): The ‘baseline’
job
as a Hewlett Packard representative to support himself financially. He had a studio but had to give it up in mid-2013 to save money for the Goldsmiths course. When he had the studio, he estimated that he produced 40-50 pieces of art a year.
January
2015. Although he was focussed on his studies that year rather than producing work for commercial sale, he nevertheless produced 23 new pieces of art before his accident on 28 November 2015.
various
points had to support himself with part-time work, which I consider fair. It is clear to me that he worked
very
hard and was willing to do so in pursuit of his art.
(ii): The shortfall
view,
the Claimant has done his best to estimate what art he would have produced had the symptoms not inhibited him in the way they have done. The nature of his deficits is that they are largely hidden. Although the experts can provide scientific data about the Claimant’s injuries, this does not extend to being able to provide an incontrovertible assessment of the lost productivity that they cause. In those circumstances, I accept Mr Huckle’s submission that the Claimant is best placed to assess how much productivity he has lost. I did not understand any of the experts to be saying that his assessment was wholly unreasonable given his symptoms (subject to the evidence about mitigation of loss set out above).
job.
I do not therefore regard the evidence the Claimant provided to the Canadian compensation authorities as inconsistent with his evidence as to his ongoing symptoms and the shortfall at this time.
(iii): Selling the shortfall and unsold or held back work
just
under 10%. There was evidence to the effect that artists are advised to routinely hold back from sale around 25% of their art. Mr Gupta advises all his artists to this effect. The Claimant had also been given advised by the accountant for Robert Rauschenberg (a famous artist) to hold back four pieces from each series he produces. This is for several reasons. It is sensible for artists to retain some art for their own future financial benefit or that of their estates. Artists use paintings as gifts, often a little strategically. The Claimant had done this, by, for example, giving Ms
Joyner
a painting for her birthday in 2020. They may also keep paintings for their own personal use, including for future research.
value
of them. References below to paintings being “sold” should therefore be interpreted as referring to both sold, and held back, paintings.
(iv): Calculating the
value
to the Claimant of the shortfall
very
helpful. He had reviewed a large amount of material, including the Claimant’s archive of work, his annual accounts, price lists, sales records and gallery artist reports as well as the key witness evidence. He described the case as “replete” with data for the purposes of calculating the Claimant’s losses, compared to the 900 or so similar cases in which he has advised. Based on his analysis of the data, he was satisfied that the Claimant’s documentation provided a “reliable record” of the work sold and that the invoices reconciled to the accounts satisfactorily: typically, there were only negligible discrepancies, which were often likely due to exchange rate differences.
(c): Past lost income per year, 2016-2022
(i): 2016
very
slowly after his return to Goldsmiths in
January
2016. He said that “[w]ith huge difficulty” he produced the “bare minimum” he needed for the Goldsmiths end of year show in
July
2016, namely a “tryptic” (a large work, broadly equivalent to three separate paintings) and five further paintings. He then took the rest of the year off to recover from his injuries. It was no part of the Second Defendant’s case that he had failed to mitigate his loss in doing so.
various
sizes before the
July
2016 show. I consider this credible. This was the period when the Claimant’s symptoms were at their worst and it is thus reasonable to infer that but for the symptoms, he would have been significantly more productive (around three times more so) than he actually was. Further, I accept the Claimant’s evidence that it was clear to the students that their focus at this point in the course was to produce work for the show rather than engage in further study. I therefore do not accept the Second Defendant’s suggestion that absent the accident the Claimant would have been studying in 2016 and so would not have been working at full capacity in any event.
various
gallerists wanting to work with him. An article entitled “Why London artist Manuel
Mathieu
is on the way up” generated a lot of interest in him. The demand for his work continued into 2017 (see section 6.1(b)(ii) below).
very
significant impact the accident had on the Claimant’s productivity during 2016, the rising
value
of his art and the sensible assumptions and methodology used by Mr Stanbury. I do not accept, as the Second Defendant submitted, that such a large disparity between actual income and calculated lost income means that an award for the entirety of the latter is “wholly unreal”.
(ii): 2017
very
hampered by his symptoms. His archive shows that he produced 39 paintings and 21 drawings that year. However, he was set back by the second road traffic accident which occurred on 27 March 2017. His evidence was that he lost four weeks’ productivity as a result. Even allowing for that, his claim was that he could have produced a further 30 pieces of work in 2017 but for his symptoms from the 2015 accident. I accept the Claimant’s case in this regard. It is a reasonable figure bearing in mind the ongoing impact of his symptoms, relative to what he was still able to produce. It is a lower shortfall figure than that adopted for 2016, recognising that the impact of his symptoms was reducing, and his productivity was increasing. Again, the Second Defendant’s suggestion of a shortfall figure of five lost paintings / 10% lost productivity does not fully reflect the ongoing impact on the Claimant.
very
much seen by the collectors as a talented artist whose career was rapidly ascending”. By the time of the Tiwani show the Claimant had also started working with the Kavi Gupta Gallery in Chicago and the Maruani Mercier Gallery in Brussels and Ms Ricci explained that when enquiries were made of these two galleries, they also had no “spare” works by the Claimant which could be used to meet customer demand. Ms Ricci gave an account at trial that differed from her written evidence as to whether she, or others, had asked the Claimant to produce more work, but her inconsistency on this point of detail from events over four years ago did not in my assessment undermine the broad thrust of her evidence. Finally, the demand for the Claimant’s work continued into 2018 (see section 6.1(b)(iii) below).
(iii): 2018
view,
a sensible recognition of the fact that some of his lost productivity would have been directed to other, less lucrative, art forms. I do not therefore accept the Second Defendant’s submission that the lost productivity must be equally allocated across all the art forms in which the Claimant works.
varies
each year.
(iv): 2019
very
similar to those for 2018 and illustrate that his symptoms were stabilising, as was his ability to cope with them. The Claimant again claimed a shortfall of 10 large plus four medium lost paintings for this period. Mr Rabinowitz questioned whether the fact that the Claimant spent the second half of 2019 in the Stuttgart residency should lead to a reduction in the shortfall. There is some force in this, given the Claimant’s evidence that a residency generally involves an element of holiday time. However, the residency does not seem to have adversely impacted on his productivity for the year, as his figures are similar to those for 2018. The tone of the correspondence of the Stuttgart residency is also quite formal: it describes the residency as an academy fellowship and does not refer to any time off for travel. I therefore do not consider that this is a reason to reduce the shortfall claimed and so adopt the Claimant’s figures of 10 large paintings and fourmedium ones.
v)
below).
(
v):
2020
virtual
art fairs during the pandemic and that all the pieces the Claimant had placed with him during 2020 sold. Mr Charbonneau organised a sale of 10 small pieces in September/October 2020 and they all sold. Mr de Montferrand exhibited the Claimant’s work at shows in China in
June
and November 2020 and all nine pieces sold. The Claimant also described selling three of the four pieces he exhibited at the PHI Foundation in Canada. The demand for his work also continued into 2021 (see section 6.1(b)(
vi)
below).
(
vi):
2021
(
vii):
1
January
2022-31 March 2022
vi)
above and the powerful evidence as to the Claimant’s current trajectory described in section 7.1 below.
“[The Claimant] has recently been advised to raise his sales prices and has done so to the level of [USD] $100,000 for a large painting…and I would expect his sales prices to increase over the next few years towards a level of [USD] $150-250,000 for large paintings and [USD] $50,000-70,000 for his medium paintings, and then perhaps to level off. I would put the chance of these price ‘brackets’ being achieved at 70% given the evidence of his career progression to date, indeed I would be
very
surprised if they were not reached. Going beyond 5 years or so is
very
speculative, because of market forces and interests…long term his prices are unlikely to reduce below the level reached in this initial period of rising prices and might well continue to rise if the market remains strong for his genre”.
July
2021 and the highest price on that was USD $74,200. Moreover, Mr Gupta and Mr Moos had been less optimistic on the issue in their March 2021 statements. Mr Gupta had said that the price of the Claimant’s larger-scale work should rise to “something in the region of USD $100,000 or more within the few years”. Mr Moos said that “over the next three years” he could “confidently predict” that the Claimant would reach sales prices “in the region of USD $100,000”.
values”.
I consider that as professional people “closer” to the Claimant and his position in the market, Mr Gupta and Mr Moos are better placed to estimate his likely sales prices in the immediate term than Mr Francis, who could only give quite general predictions. In this regard I take the same approach as the trial
judge
in Collett
v
Smith [2008] EWHC 1962 (QB) at [97], who had regard to the
views
of Sir Alex Ferguson, given his “a wealth of experience in the development of young [football] players”: she considered that although his was not expert evidence, it “must inevitably carry great weight”.
view
that the prediction by Mr Gupta and Mr Moos is sound.
vi)
above) and the fact that he is clearly currently on a powerful upward trajectory (see section 7.1 below) I see no reason to reduce the 70% chance figure for this period of past loss.
judgment
date of 31 March 2022, that being shortly before the actual
judgment
date, and almost exactly one year from the estimates given by Mr Gupta and Mr Moos.
vi)
above) and him achieving a sales price of USD $100,000 for a large painting and USD $30,000 for a medium painting by the end of March 2024; (iv) costs deduction of CAD $2,000 per painting to be applied; (
v)
reduction to reflect that the Claimant has only a 70% prospect of losing the
value
of the shortfall calculated in this way; and (
vi)
pro rata award to reflect period of past loss of 1
January
2022 to 31 March 2022.
6.2: Other past losses
January
2016 when his then partner Alexandra Melancon cared for him. The Second Defendant offered £2,500 on the combined care claim. I consider this a reasonable figure because (i) the invoice showed that her flight cost CAD $1,067.85 (£531); (ii) I accept the Second Defendant’s submission that her counselling fees are irrecoverable; and (iii) there was no witness or documentary evidence to corroborate Ms Melancon’s losses.
7: Future losses
7.1: Future lost income
(a): The issues
vogue,
market preferences, changes of gallerist,
variation
of discounts, economic calamities, geopolitical instabilities, sustainability of pricing, competition, physical health, other emotional demands, perhaps even another pandemic”.
value
and pricing beyond the next two to three years involves speculation. Mr Francis
volunteered
that when he was working with Anthony Gormley and
Jean-Michel
Basquiat at the outset of their careers, he would not have been able to predict what they would be earning two to three years later.
J
said in
Van
Wees at [100], where there are “a number of uncertainties and imponderables which are not amenable to any precise answer”, the court needs to perform “the best
jury
assessment [it can] in the light of all the material, having seen the witnesses and considered what [it thinks] to be the realities of the situation”. Having conducted the assessment, the award may be
very
much smaller than that claimed, or may indeed be nil, but this does not mean the court should not carry out the process.
very
likely at a significant rate, such that the multiplicands…are far too high. Moreover, the proportion of unsold works will likely go up and his lost profit become even smaller”. For these reasons, even if some award could be quantified for the first two to three years, it was said that beyond that a Blamire award was appropriate. By way of illustration only an award based on two lost paintings a year was calculated.
(b): Duration of the Claimant’s productivity and the impact of his symptoms on it
view
the Claimant is likely to be akin to the two artists in their 80s described by Mr Francis at trial, who continue to work seven days a week and “almost certainly” produce over large numbers of pieces of art a year.
vii)
above. I address the Claimant’s future loss claim in two distinct chronological phases to reflect the agreed expert evidence as to the two to three years point, and in light of my findings in section 6.1(c)(
vii)
above about the Claimant’s prices in the immediate term.
(c): Future lost income from 1 April 2022-31 March 2024
(i) His sharply increasing sales demonstrate, as Mr Francis said, “sustained and rising interest in his work internationally”.
(ii) There has been increasing awareness in the art world in recent years of the need to recognise artists from diverse backgrounds. The Claimant may well be benefitting from what several of the witnesses described as a long overdue historical correction. Although Mr Sainty had initially characterised the impact of the Black Lives Matter movement as a trend, he later accepted that it is more likely to lead to embedded change in the art world.
(iii) Displaying in art institutions or museums as opposed to galleries significantly assists in taking an artist’s career to a higher level, and the Claimant has recently achieved this: in 2020 he exhibited in what Mr Moos described as “two significant art institutions” (the Museum of Fine Arts in Montreal and the Power Plant in Toronto). Although Mr Sainty was of the
view
that these are not among the most prestigious museums worldwide, there is evidence that the Claimant is moving into the international museum scene: the Miami Museum of Contemporary Art having committed to showing his works and the Claimant has been in some discussions with the Tate Museum in London.
(iv) The Claimant has the benefit of what Mr Francis described as “distinguished and well-connected collectors” such as Ms
Joyner,
and this “helps to sustain and widen the collector base as it is competitive”. Ms
Joyner’s
role as a trustee and benefactor of major US museums was also likely to assist.
(
v)
In 2020 the Claimant was “long-listed” for the Sobey award, described by Mr Charbonneau as “the biggest award in Canada, attracting a lot of publicity”, which “has been the springboard for the careers of many Canadian artists over the years”. Due to Covid-19 the committee decided to share the award among all 25 long-listed artists.
(
vi)
In late 2021 two of the Claimant’s large works featured in the ‘Social Works II’ exhibition at the London Gagosian, widely recognised by the witnesses as one of the world’s leading galleries (
variously
described as the “Ferrari” or “Rolls Royce” of the art world). This was described by Mr Moos as a significant achievement for the Claimant. The two works sold, and he has since provided them with four more paintings. In early 2022 he arranged a
video
interview with Gagosian to go on their YouTube channel.
(
vii)
In 2021 he was working on a major catalogue of his work, to which a number of internationally respected authors had agreed to contribute, and the design concept for which was being created by Ima Boon, described by Mr Moos as the “greatest living book designer”.
(
viii)
On 4
January
2022 the Artnet website included the Claimant as the only Canadian in its list of “12 artists poised to break out in 2022”.
(ix) In early 2022, he was taken on by Pilar Corrias, London gallerist. A show was arranged for April 2022. Mr Moos noted her “outstanding profile as an early detector of talent” and ranked her “among
very
few London and Europe based galleries”. He was clear that she “knows how to develop the careers of young artists in an expert fashion” and referred to “at least three artists in her stable I have watched rise”. While Mr Sainty was more guarded in his recognition of her, he did accept that while thousands of students graduate from art school each year, a “small proportion” get taken on by dealers at different levels.
view
Mr de Montferrand accurately summarised the position when noting that the Claimant “…is now entering a higher level in his career as an emergent international artist”. Similarly, Mr Francis described the Claimant as being on a “steep trajectory” that was “rare but demonstrable” and showed “demonstrated skills, business and social as well as artistic, that point towards a drive for success”; “it is all going in a certain direction so far”. He has recently had one less successful exhibition, at the Matthew Brown gallery in Los Angeles, but this appears out of kilter - at least for now - with the otherwise positive evidence.
vii)
I explained that I accepted the evidence of Mr Gupta and Mr Moos to the effect that the Claimant is likely to achieve a sales price of USD $100,000 for a large painting and USD $30,000 for a medium painting by 31 March 2024.
view,
this continues to be an appropriate figure to reflect both the Claimant’s prospects of continued success at the same level as he is currently enjoying and the general uncertainties of the art market.
v)
reduction to reflect that the Claimant has only a 70% prospect of losing the total
value
of the shortfall calculated in this way.
(d): Future lost income beyond 1 April 2024
(i) Mr Sainty observed that of his graduating class from Goldsmiths, he is in the minority group (one third) still working as a professional artist, and that his “star has risen faster and higher than many of his contemporaries”.
(ii) Having tutored students for 23 years, Mr Mabb considered that the Claimant was “exceptional” and was notable for his drive, ambition to succeed and marketing skills. He also indicated that the Claimant was the only one of the students he had tutored who were at the level of success the Claimant was in their twenties, or who had gone on to enjoy the level of success he has.
(iii) Ms
Joyner’s
own
view
is that the Claimant is one of “a small group of really promising abstract painters globally” and that his work is “at the highest level of global contemporary abstract artists.”
(iv) Having worked in the art world for 25 years, Mr Charbonneau noted that his sales in Canada had been “unprecedented”, as museums and private collectors had been prepared to pay around four times as much for his work than they have historically paid for other artists.
(
v)
style='font:7.0pt "Times New Roman"'> The Claimant’s art is being purchased by
very
wealthy private individuals, often referred to as “marque collectors”, Mr Moos, having worked as a museum curator for many years and written extensively on abstract art, now effectively acts as a private curator for eight such collectors. His two criteria for recommendations to his clients are that the work is of exceptionally high standard and capable of standing the test of time and that the piece represents a good financial investment. At his recommendation, five pieces of the Claimant’s work have been purchased by his clients. He intends to continue to recommend the Claimant’s work because “[m]ore than ever [his] work fulfils the stringent criteria that I apply”.
(
vi)
style='font:7.0pt "Times New Roman"'> Many of the witnesses identified the fact that the Claimant is supported by Mr Gupta as significant, as he has a proven track record of helping establish the careers of some of the world’s leading artists. These include Theaster Gates and McArthur Binion, who have subsequently gone on to be represented by the world’s leading galleries such as Gagosian or White Cube. He also represents Mickalene Thomas and Angel Otero.
(
vii)
style='font:7.0pt "Times New Roman"'> In his March 2021 statement, Mr Gupta accepted that he has a long-standing reputation for developing the careers of young artists, so that they have risen to being internationally recognised, displaying in prestigious museums and art institutions and attracting significant sums for their work. He set out his plan for putting the resources of his gallery into “projecting” the Claimant into this level and said that the Claimant was at the top of his team’s lists of artists who they consider for exhibitions, art fairs and group shows.
(
viii)
style='font:7.0pt "Times New Roman"'> The fact that he has recently been taken on by Pilar Corrias in London is notable. She represents the
very
successful Christina Quarles
(ix) The fact that he is building a relationship with Gagosian is significant.
Joyner,
continued to generate interest from the marque collectors and exhibited in more museums worldwide. He is quite likely to have benefitted from the continued promotion by Pilar Corrias, who has achieved significant success for other similar artists. His relationship with Gagosian may have developed and strengthened further, perhaps with a
view
to them formally representing him, as has happened with other artists initially nurtured by Mr Gupta. This scenario is not, in my
view,
unrealistic.
very
small number of artists. One example that emerged in the evidence was Mickalene Thomas, age 51. From 2007-2012 her works sold for USD $20,000-50,000 and from 2013-2015 for USD $100,000-$175,000. In 2021 she achieved prices of USD $1,542,000 and USD $1,800,000 for works produced in 2011 and 2016 which had been brought to auction for the first time. In his report Mr Sainty referred to Sarah Lucas who achieved sales of USD $904,000 in 2014 and whose works regularly sell for £100,000-£250,000. At trial Mr Sainty mentioned to Cecily Brown, a British artist promoted by Gagosian, who has achieved what he described as “Olympian” or “stratospheric” success. He referred to a work she had sold for $7 million.
very
powerful areas of evidence that cut across this otherwise positive picture, and which create
very
significant difficulties for the Claimant’s lifetime loss claim.
very
few artists maintain lifelong success to the level of financial remuneration sought by the Claimant. He provided numerous examples of artists who have achieved significant success in their early years, but whose fame and income have then reduced considerably, saying “[a] rapid rise and later fall in
values
is more common than contemporary dealers like to admit, while changing fashion and rapidly shifting taste along with the fickleness of buyers cannot be predicted”. He referred to the Young British Artists (YBAs) promoted by British collector Charles Saatchi in the early 1990s, others who had achieved initial success having graduated from Goldsmiths or exhibited at the ICA, and further examples. He supported his evidence on each of these artists with data showing the prices they had achieved at auction.
very
high sales prices at the start of their careers, but then their prices and the demand for their work reducing over time, even if their work remained critically acclaimed. For many of the artists, their work simply does not get brought to auction now. He noted that with one exception none of the YBAs are now currently selling their works through the main London and international galleries. Further, if the art is brought to auction, it often does not sell or it achieves relatively modest sums, often less than £10,000 per painting. Several of these artists have now taken up other professions such as teaching. Although the experts agreed that the YBAs were not direct comparators for the Claimant, I do not consider that this undermines the force of Mr Sainty’s evidence. His research showed that artists going into “tailspin”, as Mr Huckle described it, is a recognised pattern, not limited to the YBAs. Even artists who have achieved
very
substantial success in life can fall out of fashion in their final years: Mr Sainty cited Boticelli as an example of this.
very
few”.
volatile
nor does it preclude changing fashions and demand for individual artists”. I found force in Mr Sainty’s arguments that there have been previous “booms” such as that which has occurred in the last twenty years and the art market has always been to some degree international. Further, his evidence that as opportunities expand so does the competition made sense to me.
very
lengthy period. The point was made that as Mr Sainty is not a dealer of contemporary art, he had no access to figures from the primary art market (when an artist first sells their painting, normally to a gallery or direct to a collector) and had to rely on auction prices. That was correct, but he presented the results of his analysis of the auction results in a comprehensive way, and they provided detailed evidence of the sales prices of a significant number of artists. There was no similarly referenced contradictory picture provided by Mr Francis based on primary art market data.
very
artist must develop and innovate to sustain their careers. Most artists develop stylistically from their student years into their mid-30’s, but it is about that age that artists may find it most challenging to advance and innovate”. Further, “[o]nly a small handful of truly great artists have ever managed to sustain a lifelong career of constant innovation and creativity”. At trial he confirmed that “most don’t manage to do it [innovate]”; “many fail to innovate and achieve the same sense of novelty and excitement as they did when they were young”. He gave Picasso as an example of someone who had succeeded in this regard: he had totally re-thought his art every 10 years.
value
and pricing. The Claimant is business savvy, and will no doubt have an eye on the need to innovate, but whether he is able to do so with financial success is uncertain. This obviously depends on whether or not any innovative work he is able to produce continues to find favour on the market to the same level as his current paintings. There is some evidence already that his ceramic works have not done so, which underscores the uncertainty.
volatile
industry, where there is good evidence that initial success is not necessarily a predictor of long-term success at the same level.
(i): 1 April 2024-31 March 2029
very
fluid average derived from several of the examples Mr Sainty provided: Abigail Lane (a participant in the 1988 YBA Freeze show, who achieved good sales prices including for early work until 1998); Gillian Wearing and Michael Landy (who graduated in 1990/1988 respectively, were elected to the Royal Academy in 2007 and 2008 and have enjoyed critical success and good prices for work done “in the 1990’s”); David Salle (whose most
valuable
work was that done in “the 1980s [and] early 1990s”); and
Julian
Schnabel (who was highly sought after “in the 1980’s” and whose works from this period continue to do well at auction).
view
this figure recognises the chances that his prices will rise or hold and that there will be continued unmet demand for his work, but also acknowledges the
very
significant risks that his prices will fall and/or that the unmet demand will.
judgment
Mr Huckle invited me to review this 40% figure, and the 70% figure used in sections 6.1(c)(
vii)
and 7.1(c), pursuant to the principles summarised by Fraser
J
in Gosvenor London Ltd
v
Aygun Aluminium UK Ltd [2018] Bus LR 1439. He argued that due to the polarised positions of the parties at trial there was no opportunity to canvass the broad loss of a chance approach I have taken to quantifying the Claimant’s loss. The Defendant argued in response that the Claimant’s case was predicated on a percentage chance recovery and any submissions relevant to the formulation of the loss on that basis could and should have been made at trial. I accepted those submissions, and on that basis concluded a review was not appropriate: Gosvenor at p.1462F-G, paragraph 52 makes clear that the discretion to alter a
judgment
before it is handed down should not be exercised so as to provide litigants with a “second bite at the cherry”, to remedy lacunae in their own evidence or raise further arguments.
value
of the shortfall calculated in this way. This will generate the annual multiplicand. I address the multiplier below.
(ii): From 1 April 2029, for the rest of the Claimant’s lifetime
very
difficult to predict in light of the agreed expert evidence.
very
significantly, he may decide to take up a teaching position as Mr Sainty explained other artists have done. The Claimant has shown himself willing to supplement his income when needed before (as he did before the Goldsmiths period, when working at Hewlett Packard). He already mentor’s student artists and his friend Mr Kiernander has already taken up a teaching position. Although the Claimant did not advance a scenario of this kind, it is my task to assess what is likely to happen in the future as best I can, based on all the evidence I have heard. Having done so, the Claimant eventually taking up a teaching post at some point seems a realistic possibility. However, there was no evidence before me as to the likely salary for an art teacher, the ability of the Claimant to secure that kind of work, how he would manage his symptoms while doing that kind of work and whether his symptoms would lead to any financial loss in this scenario.
very
substantial reduction to the multiplicand figure advanced by the Claimant for this part of his future loss claim is necessary to reflect the significant risks that he will not sustain his current success, especially given the absence of evidence of innovation or auction history. In my assessment, the above awards afford him compensation for the chances he has lost as accurately as possible, given what is inevitably an uncertain exercise.
very
substantial modifications and assessing the multiplicand in a broad-brush way. That is consistent with the authorities indicating that
judges
should not resort to the Blamire approach unless essential.
7.2: Other future losses
James
agreed that provision should be made for three courses of six CBT/ACT sessions over the course of the Claimant’s lifetime. Dr Bach estimated the cost of each session at £200-250. Dr Nathaniel-
James
used the lower of these two figures. Using the mid-point of £225 per session, for 18 sessions, gives an award of £4,050.
8: Provisional damages
8.1: The legal framework
(a): The statutory criteria and the Willson test
J
(as he then was) in Willson
v
Ministry of Defence [1991] ICR 595. At pp.598H-599A, he identified three questions he had to decide, namely (1) is there a chance of the claimant developing the disease or deterioration in question? (2) is the disease or deterioration serious? and (3) if so, should the court exercise its discretion to make an award of provisional damages? This approach was approved by the Court of Appeal in Curi
v
Colina , The Times, 14 October 1998: see the
judgment
of Roch LJ, with whom Ward, and Potter LJ agreed (transcript, p.9).
(b): The ‘chance’ and the ‘seriousness’ questions
J
considered that the chance must be “measurable rather than fanciful…[h]owever slim” (p.599B-C). The Court of Appeal in Curi held that this was a “sensible and proper approach” and agreed that the chance “must be more than fanciful” (transcript, p.9). Mr Huckle urged some caution about the use of the word “measurable” as this is not in the statute, albeit that it has been used in some of the cases. It appears to mean no more than that the chance is capable of being measured so as to ensure it meets the “more than fanciful” test. Provided it does so, precise quantification is not necessary: as Simon Brown
J
(as he then was) explained in Patterson
v
Ministry of Defence [1987] C.L.Y. 1194 “…one great advantage of a provisional damages award is that it is unnecessary to resolve differences…between the specialists…as to the precise extent of the risk to which the plaintiff is now exposed” (transcript, p.9).
v
Royal Liverpool and Broadgreen UH NHS Trust (unreported, 17
July
2006) Beatson
J
held that the claimant should have been permitted to amend his claim to plead provisional damages in respect of the 0.15% risk of serious consequences of syringomyelia (a potentially serious cyst or syrinx within the spinal cord) (transcript, paragraph 11); and in Kotula Irwin
J
at [43]-[46] concluded that a 0.1% risk of serious consequences of syringomyelia (1 in a 1,000 patients) was sufficient for these purposes.
J
considered that whether deterioration is serious in any particular case is “a question of fact depending on the circumstances of [the] case including the effect of the deterioration on the plaintiff”. He gave the example of a hand injury having a particularly serious impact on a pianist (p.599E). In Curi, the Court of Appeal confirmed this approach, indicating that a disease or deterioration could be serious because of the effect on the activities, capabilities, life expectancy or financial position of the claimant. Further, the Court held that the disease or deterioration must be “such that an award of damages which included a sum for the ‘chance’ will be wholly inadequate to compensate the plaintiff for the position in which he would find himself once the chance had materialised” (transcript, p.9).
(c): The discretion
J
noted that in Patterson Simon Brown
J
had made a provisional damages award in respect of mesothelioma but had declined to do so for the risk of further pleural thickening. This was in part because he:
“…would not regard it as appropriate to leave this matter over for future legal proceedings. Even assuming [the claimant’s asthmatic condition] were to become aggravated by the worsening of pleural changes, it would be
very
difficult to assess the level of that aggravation, or its impact upon the plaintiffs day-to-day existence…generally speaking, it appears to me desirable to limit the employment of this
valuable
new statutory power to cases where the adverse prospect is reasonably clear-cut and where there would be little room for later dispute whether or not the contemplated deterioration had actually occurred” (transcript, p.6).
v
Central Electricity Generating Board (unreported, 19 December 1988) Michael Davies
J
had indicated that he would not be enthusiastic about awarding provisional damages save “in the clearest case” (Willson, p.601E-F).
J
continued:
“The general rule in English law is that damages are assessed on a once-and-for-all basis. Section 32A of the Supreme Court Act 1981 creates a
valuable
statutory exception. In my
judgment,
the section envisages a clear and severable risk rather than a continuing deterioration, as is the typical osteoarthritic picture…many disabilities follow a developing pattern in which the precise results cannot be foreseen. Within a general band this or that may or may not occur. Such are not the cases for provisional damages. The courts have to do their best to make an award in the light of a broad medical prognosis. In my
judgment,
there should be some clear-cut event which, if it occurs, triggers an entitlement to further compensation” (Willson, p.602A-B).
“…first…whether, in respect of any of the three events…there can truly be said to be a clear-cut identifiable threshold…[second] the degree of risk and the consequences of the risk…third…weighing up the possibilities of doing
justice
by a once-and-for-all assessment against the possibility of doing better
justice
by reserving the plaintiff’s right to return” (Willson, p.602C-E).
judges
should bear in mind that the power to award provisional damages is an exception to the general rule that damages are assessed on a once and for all basis, with the practical advantages that brings. The observations from Patterson and Allott quoted above which emphasise the need for clarity were reiterated (transcript, pp.9-10).
J
observed that “…where a risk is small that in itself may be the
justification
for an award of provisional damages. This is because, if the Claimant is to be restricted to a lump sum once and for all award, the smallness of the chance may leave that Claimant significantly under-compensated if the risk transpires” (transcript, paragraphs 11-12).
v
EDF Energy Networks (EDN) PLC [2011] EWHC 1546 (QB) in which Irwin
J
(as he then was) reviewed all the key authorities and said the following about the discretion:
“[47] I bear in mind all of the dicta in Willson and elsewhere in favour of the need for clarity. We are not here dealing with the development of osteoarthritis, or even of a psychiatric condition…Those are
very
general conditions which are Protean [ie.
variable]
in their form and effects. It will often be difficult to establish the cause of osteoarthritis particularly later in life. It may often be difficult to establish the origins of a psychiatric condition. It seems to me to be relatively easy to establish what has flowed from the development of a syrinx in a given patient, and having identified the effects, to decide whether or not they were serious. Imaging will provide a picture of the location and size of the cyst or cysts. It will readily be apparent which part or parts of the nerve supply will be affected. By definition, in a case as such as this, there will be a fully developed picture of the neurological condition of the patient before the syrinx develops. His or her condition will have been fully analysed and reported. Of course, the impact of the development of syringomyelia may often be compounded by other disorders or indeed by progressive deterioration which is not the result of a syrinx. Sometimes the effects on functioning or the need for care will indeed be difficult to tease out, and it is likely in such cases that the wise Claimant will not risk costs in making a claim. If a Claimant does seek further damages or
variations
on an indistinct factual ground, he may rapidly be placed on a significant costs risk by the astute use of CPR Part 36. It is relevant to bear in mind in the context of syringomyelia that such claims will be extremely rare. By contrast to potential claims arising from osteoarthritis or psychiatric condition, one truly is contemplating a trickle not a flood.
[48] I bear fully in mind the desirability of finality of awards. Finality brings great benefit not merely to insurers and to the court system, but also to Claimants. However in this context that must be set against the potentially enormous inadequacy of an award, in that
very
small but measurable group of patients who go on to develop really significant incremental spinal compromise as a consequence of syringomyelia. It does seem to me that this is precisely the kind of rare but highly damaging contingency which Parliament must be taken to have in mind, when permitting damages awards to be provisional, and permitting the
variation
of periodical payment”.
v
Countess of Chester Hospital NHS Foundation Trust (unreported, 13 February 2015) at [13], Blake
J
held that “…where the future risk cannot really be separated from the existing medical condition, then that is a reason to make the
judgment
at the time of trial rather than at some distant point in the future because that is really already insufficiently disconnected with the overall assessment for the trial
judge”.
v
Whittington Hospital NHS Trust [2017] EWHC 2318 (QB) at [30], Nelson
J
declined to award provisional damages in relation to a possible deterioration in a claimant’s psychological condition, in part because he was concerned about the difficulty, in future, of “establishing the origins of a particular psychological condition or its exacerbation”.
(d): Causation
v
Glenhaven Funeral Services Ltd and others [2002] ICR 412 at [163]-[166], the Court of Appeal held that while the power to award provisional damages required the court to decide whether there was a proven or admitted chance that at some definite or indefinite time the claimant would develop mesothelioma as a result of exposure to asbestos while employed by the defendants, the question of which, if any, of the defendants was liable for mesothelioma which might result from that exposure should be decided if the disease developed, on the basis of the evidence then available and on the law as then established.
v
Williams [2010] PIQR Q1, Slade
J
considered an application for provisional damages by a claimant who had sustained serious injuries to his right lower leg in a road traffic accident. The application was put on the basis that there was a chance that he would suffer a below knee amputation as a result of fusion surgery. One of the issues was whether the claimant first had to prove on a balance of probabilities that he would undergo the operation which could lead to the need for an amputation. Slade
J
held that he did not:
“It is for the applicant for a provisional award of damages to establish on a balance of probabilities that there is a chance that at some time in the future he will suffer some serious deterioration in his physical condition. The chance is established by less than a balance of probabilities standard. If that standard were satisfied, the event would not be a chance but a certainty not warranting provisional damages but the award of an ascertained sum. There is no warrant for imposing a preliminary hurdle to overcome to a balance of probabilities standard of proof that an event which may lead to deterioration in the applicant's physical condition will occur…the appropriate test to be applied in deciding whether Section 32A is satisfied is whether the claimant has established on a balance of probabilities that as a result of the act or omission which gave rise to the cause of action there is a chance of serious deterioration in his physical condition in the future” (paragraphs 12 and 14).
8.2: The Claimant’s provisional damages claim: epilepsy
joint
statement that the Claimant had an increased risk of developing epilepsy related to his traumatic brain injury (TBI). Dr Foster’s
view
was that there is a current residual lifetime epilepsy risk of 5-7%; Dr Orrell put the figure at 8%. This is to be compared to a background risk of epilepsy at 0.1-1% as described by Dr Orrell in his report dated 27 August 2016. Dr Orrell’s written evidence was if the Claimant did experience seizures in the future, there was around a 64% probability that these would be controlled by medication.
v
Ali [2007] EWHC 1255 (QB) at [10], Lloyd-
Jones
J
(as he then was) described epilepsy as “clearly sufficiently serious for a once and for all damages award to be inadequate to compensate the Claimant should it occur”. In Loughlin
v
Singh [2013] EWHC 1641 (QB) at [98], Kenneth Parker
J
recognised that there was a good prospect that any epilepsy that developed could be controlled with medication, but that there was still a non-negligible risk that uncontrolled epilepsy would develop, and in that scenario the Claimant would be seriously under-compensated by a conventional award. The same position applies here: although on Dr Orrell’s evidence the Claimant has a 64% prospect that epilepsy would be controlled by medication, this still leaves a 36% prospect that it will not be, in which case it would be a serious condition for which he would be seriously under-compensated.
joint
statement by the neurologists.
8.3: The Claimant’s provisional damages claim: dementia
(a): The chance of the Claimant developing dementia due to his brain injury
(i): The evidence
volume
of medical literature. Neither had been involved in the underlying research but both expressed their opinions on it, and how it applied to the Claimant.
view
was that there is accumulating evidence of a generalised increased risk of developing dementia, Alzheimer’s or a similar condition following a TBI. This risk is considerably stronger for the Claimant given his severe TBI, and the absence of independent factors in his case predicting for early onset of dementia. The only such factor which might be relevant to the Claimant was his ethnicity and this was likely to be of limited significance. However, he accepted that the Claimant is probably in the top 10-20% of people with his level of brain injury in terms of his recovery so far. Dr Foster took a different
view
to Dr Orrell. He considered that there is insufficient evidence that there is a generalised increased risk of dementia due to TBI. Further, any general risk is likely to be even lower in the Claimant’s case because he has had an exceptional outcome so far and is in the top 1% of patients with his level of brain injury in this regard.
July
2018) [2] and Barnes et al (May 2018). [3] The Agrawal and Ford paper summarised previous research findings. The Barnes research was a cohort study of more than 350,000
veterans.
Its conclusion was that “...even mild TBI without [loss of consciousness] is associated with more than a 2-fold increase in the risk of dementia diagnosis”. Applying the Barnes research and bearing in mind that the Claimant was then 34 and had not yet developed dementia, Dr Orrell estimated that the cumulative incidence of dementia for the Claimant would be around 20% at age 60 and around 55% at age 80, against background incidences of around 5% and 25% at those ages respectively. These percentages broadly equated to the risk of two to four times normal background risk which had been given by Agrawal and Ford. In his 31
January
2022 report, Dr Orrell provided a graph from the Barnes paper which illustrated a dose-response relationship (i.e. the more severe the head injury, the higher the risk) and which he had used to calculate his cumulative risk figures. Dr Orrell accepted from the outset that there is a wide range of opinion and uncertainty at the present time. He had suggested that a neuropsychiatrist and statistician might be able to assist further.
view
on the issue. It was suggested that the
veterans’
cohort used in the Barnes research was not typical of the general population, and that its results were far removed from other data with respect to the background risk in the uninjured population and the increased risk following TBI. Dr Orrell accepted that the Barnes research was controversial but pointed to other research showing the TBI/dementia association, primarily larger population-based studies. Of these, in his May 2021 report he referenced further 2018 papers by Fann et al [4] (which had found that the risk of dementia was highest in the first six months post-TBI, dropping towards around 1.4 hazard ratio (ie. how often a particular event happens in one group compared to how often it happens in another group) by six years post-TBI) and Nordstrom and Nordstrom [5] (which suggested that the risk was increased by four to six times in the first year post-TBI and then decreased rapidly but was still significant for more than 30 years post-TBI). The Fann and Nordstrom studies had also been cited in the Agrawal and Ford paper.
January
2022 report, Dr Orrell had also referred to a 2019 paper by Graham and Sharp. [6] Professor Sharp is a leading neurology professor at Imperial College. The paper stated at p.1221 that “Previously, TBI has generally been
viewed
as producing a static neurological insult. However, it is now clear that it can trigger progressive neurodegeneration and dementia” [my emphasis]. Dr Orrell considered that this was an overstatement as there is a range of opinion on this issue. At p.1222, Box 1, Graham and Sharp estimated that the “all-cause dementia risk is increased by around 1.5 times” in cases of TBI.
January
2022 report he had also referred to concerns about the definitions of TBI used in the research and self-reporting by older participants in the studies of reduced levels of neuro-functioning.
very
difficult to control for these factors in the research.
Julien
et al [8] concluded that whether TBI is a risk factor for Alzheimer’s disease remains elusive. Li et al [9] showed around 1.6 times the risk of dementia after head injury. Huang et al [10] noted difficulties in the literature and did not find an increased risk of Alzheimer’s disease from TBI. Most recently, the Hicks et al [11] meta-analysis (published in December 2019) analysed 68 research papers. It was “the first comprehensive and detailed evaluation of the methodologies of studies examining TBI as a risk factor for dementia and [Alzheimer disease]” (p.3216). It found common methodological weaknesses in the research, reflecting the issues described by Dr Orrell and Dr Foster. The Hicks review identified only one in which stronger methodological rigour had been applied. This was a study by Plassman et al. [12] Dr Foster accepted that this study was well designed but said that it had also been based on
veterans
and had not been able to exclude the role of confounding factors.
(ii): The parties’ submissions
views
should be preferred to the “nihilistic” approach of Dr Foster. Dr Foster had retired from clinical NHS practice in 2018; his review of the research was quite limited compared to the work done by Dr Orrell; and he was
vulnerable
to criticism for not having identified the Graham and Sharp paper. He submitted that based on Dr Orrell’s evidence, the Claimant can prove a more than fanciful chance of the TBI causing future dementia, at between 1.2 and 4%, although the court need not assess the exact percentage.
view
that science has simply not provided the evidence to demonstrate a causal link. He argued that Dr Orrell had presented the Barnes research as the centre of his argument when it was the most extreme, flawed and controversial of all the available literature, in breach of his duties as an expert. In contrast, Dr Foster had approached the issue in a fair and balanced manner and his evidence should therefore be preferred. Dr Orrell’s evidence was also inherently unreliable because of his
volte
face on the issue of the treatability of the Claimant’s headaches. In any event, Dr Orrell had largely accepted the criticisms of the research advanced by Dr Foster. The Claimant’s excellent recovery compared to most other patients who had sustained a severe TBI meant that the generalised risk may well not materialise in his case. Dr Orrell was unable to identify what the adjustment factor ought to be to any risk due to lifestyle factors specific to the Claimant.
(iii): Analysis and conclusion
vast
majority of cases of this nature, where the entitlement to provisional damages is not admitted by the defendant, the claimant proves their case based on agreed expert evidence about the existence of the chance (even if the experts disagree about the precise extent of it).
view
the answer to this first, general question remains doubtful as a matter of science.
vulnerable
to some criticism for not having identified the recent Graham and Sharp paper himself. It is a fact that he is retired from NHS clinical practice.
view,
both Dr Orrell and Dr Foster were trying to assist the court in interpreting a complex body of research in which neither of them had been directly involved. Neither are expert epidemiologists. In a sense, the research speaks for itself. Indeed, this was a point put by Mr Huckle to Dr Foster in cross-examination.
view,
is the Hicks team’s conclusion as to the common methodology issues in the individual research studies. One of the recommendations for the future made by the Hicks team to address the methodological “weaknesses” they had identified was that researchers should focus on outcome
variables
that move beyond what was described as the “catchall” definition of dementia. They hoped that studies incorporating the more rigorous methodological elements they had identified would “help the research community in finally answering the question as to whether a TBI does indeed increase the risk of [Alzheimer disease]” (p.3126) [my emphasis].
vulnerable
to the criticisms levelled at it by Dr Foster. In the circumstances, this paper alone is not a sufficiently sound basis for the Claimant’s claim as to the chance element.
views
expressed in their 2019 article. However, neither was an expert called in the trial.
(b): The seriousness of dementia if the Claimant develops it
(c): The discretion to award provisional damages due to dementia
(i): The evidence
view
that in future “systemic use of clinical assessments in combination with multimodal biomarkers and postmortem
validation
will allow the development of accurate diagnostic criteria for post-traumatic dementias, as well as facilitate the measurement of disease progression and prognostification” (pp.1221 and 1226) [my emphasis].
(ii): The parties’ submissions
(iii): Analysis and conclusion
various
elements of factor (i) militate, strongly in my
view,
against exercising the discretion.
view,
therefore, the
various
elements of factor (i) need to be present now.
J
to consider the risk of further pleural thickening unsuitable for a provisional damages award in Patterson.
very
difficult to assess the level of the aggravation, or its impact upon the [Claimant’s] day-to-day existence” if he developed post-TBI dementia.
J
in Kotula to be unsuitable for provisional damages because they are “
very
general conditions which are Protean in their form and effects” and where the cause is often difficult to establish.
J
in Willson; or one where, with ease, it could be separated from the existing medical condition”, per Yale-Helms and XX.
9: Conclusion
judgment.
On that basis there shall be
judgment
for the Claimant in the sum of £3,178,741.64.
judgment.
Appendix 1: Summary of the basis of calculation of past lost income
CAD$ / £ = 0.61 US$ - CAD$ = 1.26 (7/4/22)
|
1. |
2016: 20 lost paintings, sold in 2016: CAD $64,320, converted to GBP £ 25 lost paintings, sold in 2018 : CAD $268,292.86, converted to GBP £ |
£39,235.20
£163,658.64 |
|
2. |
2017: CAD$126,600, converted to GBP £ |
£77,226.00 |
|
3. |
2018: CAD $150,244, converted to GBP £ |
£91,648.84 |
|
4. |
2019: CAD $258,962, converted to GBP £ |
£157,966.82 |
|
5. |
2020: CAD $235,046, converted to GBP £ |
£143,378.06 |
|
6. |
2021: CAD $406,446, converted to GBP £ |
£247,932.06 |
|
7. |
1 |
£57,860.96 |
|
|
Total |
£978,906.58 |
Appendix 2: Summary of the basis of calculation of future lost income
|
1. |
1 April 2022-31 March 2024: principles set out at section 7.1(c) of the
CAD$426,868.05 k x 2.005 = CAD$855,870.44 |
£522,080.97 |
|
2. |
1 April 2024-31 March 2029: principles set out at section 7.1(d)(i) of the
CAD$271,040 x 4.74 = CAD$1,284,729.60 |
£783,685.05 |
|
3. |
1 April 2029 for remainder of the Claimant’s life: principles set out at section 7.1(d)(ii) of the
CAD$32,850 x 40.08 = CAD$1,316,628 |
£803,143.08 |
|
|
Total |
£2,108,909.10 |
C’s Life Expct April 2024 - Table A.3 - Age 37.5 = 47.3 years (Age 84.8 years)
No.2 - 2024 - 2029 - Period 5 years - Multiplier = 4.74
(5/47.3 x 44.82 = 4.74)
No.3 2029 for life - Period 42.3 years - Multiplier = 40.08
(42.3/47.3 x 44.82 = 40.08)
Interest
General Damages - 2% pa. since service
Claim Form Served - 29th
January
2019
Period to 13/4/2022 - 3 years 74 days = 3.202 years
Interest 6.41 % - £66,580 = £4,267.78
Special Damages
Total Sum - £983,029.58
i)£5,000 - (28/11/15 - 10/8/17) - Period 1 year 237 days
SAR 0.005% x ½ x (1yr 237/365) x £5,000 = £20.62
ii)£45,000 - (28/11/15 - 31/5/20) - Period 4 years 184 days
SAR 0.005% x ½ x (4ys 184/365) x £45,000 = £506.71
iii) £983,029.58 - (28/11/15–13/4/22) - Period 6 years 136 days
SAR 0.005% x ½ x (4ys 184/365) x £933,029.58 = £10,506.17
SAR 1/6/20 ff - 0.001% x ½ x (1yr 317/365) x £933,029.58 = £871.68
Total Interest = £11,905.18
Appendix 3: Total breakdown of the award
|
1. |
General damages for pain, suffering, injury and loss of amenity |
£66,580 |
|
2. |
Interest on general damages |
£4,267.78 |
|
3. |
Past lost income |
£978,906.58 |
|
4. |
Other past losses |
£4,123 |
|
5. |
Interest on special damages adjusted for Interim Payments of £5,000 (10/8/17) + £ £45,000 (31/5/20) |
£11,905.18 |
|
6. |
Future lost income |
£2,108,909.10 |
|
7. |
Other future losses |
£4,050 |
|
|
Total |
£3,178,741.64 |
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