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Chambers of Jacob Levy QC

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XP v Compensa & Anr [2016] EWCH 1728 (QB) Whipple J).

Counsel for the Claimant: Simon Brindle

Simon represented a Claimant who suffered a traumatic miscarriage following a road traffic accident in Poland.  That same Claimant was then injured two years later in a road traffic accident in the UK.  The claim involved consideration of the assessment of damages under Polish Law, including the application of the principle of Joint and Several Liability, as well as apportionment between two successive tortfeasors.

Both Defendants admitted liability; but both disputed the damages claimed.  Each contended the other contributed more significantly to XP’s loss and damage.  Much of the argument in the case concerned the issue of causation, with the relative contribution to the Claimant's loss and damage of each of Accident 1 and Accident 2 being hotly contested.

Additionally, the claim was complicated by a number of other features:

First, was the applicable law.  As Accident 1 occurred in Poland, pursuant to Rome II, damages fell to be assessed under Polish Law; damages for Accident 2, though, fell to be assessed under domestic law.  A subsidiary point arose about whether interest on damages for Accident 1 should be awarded in accordance with Polish or UK law.

Second, Accident 1 caused the Claimant to miscarry at 16 weeks.  This caused the Claimant physical and psychiatric injury. The nature and extent of the psychiatric injury was disputed.

Third, after Accident 1, the Claimant resumed an abusive relationship with the father of her miscarried child. This relationship endured for several months, and concluded only when the Claimant took legal proceedings against him. The extent to which the abusive relationship contributed to the Claimant's mental health problems was disputed.  The Defendant to Accident 1 contended that it was the predominant cause of them in the period between the two accidents.  But, it was also in issue whether the concept of Joint and Several Liability under Polish Law meant that the Defendant would be liable to compensate XP for the consequences of both its driver’s negligence and the partner’s conduct.

Fourth, the Claimant suffered Accident 2 while she was still suffering from the consequences of Accident 1.  The Defendant to Accident 2 contended that, as a result, it was not liable for anything but a small amount of loss following Accident 2, on the basis that the other losses would have arisen in any event.

Fifth, XPs case was that, absent Accident 1, she would have carried her baby to term, returned to work as a single parent and enjoyed a successful career.  The Defendant to Accident 1 contended, though, that it would have been financially difficult, if not impossible for XP to have returned to work and that, as a result, her loss of earnings claim should be substantially reduced. 

Sixth, the nature and extent of the Claimant's ongoing personal injury and likely future loss were disputed. The prognosis was not agreed and neither was the basis upon which damages for future loss should have been calculated. 

Seventh, the Claimant had not conceived since she miscarried in 2011. She desperately wants a child. There was a dispute as to the approach which should be adopted to that aspect of her loss, specifically whether she is entitled to claim for in vitro fertilisation or "IVF" treatment.

In her Judgment, Whipple J, roundly rejected the Defendants’ contentions and found in favour of XP on almost all issues.  In particular, she found that Accident 1 was responsible for the majority of XPs difficulties, including her on-going symptoms, and that Accident 2 contributed to them by a period of 2 years.

As Accident 1 took place in Poland, the Judge had to determine the measure of damages for that accident in accordance with Polish Law principles.  That meant that, rather than determine damages for pain, suffering and loss of amenity, the Court had to assess the level of Redress that would have been awarded by a Polish Court, in Zloty.

Regarding the causation issues, given the complexities of the case, the judge felt unable to specifically attribute the Claimant’s loss of earnings in that period between the Accidents individually.  Instead, she applied the approach suggested in Rahman v Arearose Rose [2001] QB 351 and assessed the Claimant’s total loss and then applied a percentage apportionment that reflected the circumstances of the case.  Additionally, the Judge held that the concept of Joint and Several Liability under Polish Law applied, rendering the Defendant to Accident 1 liable to compensate XP for the consequences of both the accident and her erstwhile partner’s behaviour.

The judge considered statistical evidence adduced by the parties on single parents’ ability to work, but made an assessment of whether she felt XP would have returned to work and obtained promotion.  She felt XP would have done so and awarded damages as claimed.  Moreover, the learned judge awarded XP damages on the basis that Accident 1 had effectively prevented her from ever being able to regain her former working capacity.  Given the imponderables in the case, the learned judge made the equivalent of a Blamire award (albeit under Polish Law) of £150,000.  An award of £25,000 for lost pension rights also was made.

The Judge also accepted that, given XPs age at trial (in her early 40s), IVF treatment was necessary to give her the best chance of conceiving.  There was some debate as to whether the cost of IVF treatment could be recovered under Polish Law, but the judge concluded that it was.  Consequently, the judge awarded the cost of three rounds of IVF treatment.

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