XP v Compensa Towarzystwo SA & Anor [2016] EWHC 1728 (QB)

[2016] EWHC 1728 (QB)

Case No HQ14X01115

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/07/2016

Before

Mrs Justice Whipple

Between

XPClaimant

Mr Simon Brindle (instructed by Anthony Gold Solicitors) for Claimant

Mr Bernard Doherty (instructed by Sullivans Solicitors) for First Defendant

Mr John Meredith-Hardy (instructed by Keoghs LLP) for Second Defendant

Hearing Hearing dates: 17, 18, 19 and 23 May 2016

INDEX

A.INTRODUCTION 1-4

B.FACTS

Background 5-7

Accident 1 8

Between Accident 1 and Accident 2 9-20

Accident 2 21

After Accident 2 22-25

The Present 26-29

C.MEDICAL EVIDENCE

Orthopaedic Evidence 30-31

Gynaecology Evidence 32-35

Psychiatric Evidence 36-38

D.CAUSATION OF PSYCHIATRIC INJURY

General 39-44

Disputed Issues 45-53

Summary of My Findings on Causation of Psychiatric Injury 54

E.POLISH LAW

Introduction 55-57

Summary of Disputed Issues 58-59

Experts 60-62

Resolution of Polish Law Issues

a.Art 441, joint and several 63-65

b Date for interest to run 66-68

c.Quantum of Redress under Polish Law 69-73

F.DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITY

Accident 1 – Redress 74-77

Accident 2 – General Damages 78-81

G.SPECIAL DAMAGES

ACCIDENT 1

Past Loss of Earnings 82-88

Apportionment of Past Loss of Earnings between the Defendants 89-101

Travel Expenses 102

Treatment Costs 103-105

Medication 106

Miscellaneous Expenses 107

Interest 108

ACCIDENT 2

Loss of Earnings 109

Travel Expenses 110

Medical Treatment 111

Care and Assistance 112

Medication 113

Damaged Items 114

Miscellaneous 115

Interest 116

H.FUTURE LOSSES

ACCIDENT 1 117

Fertility Treatment 118-126

Pyschiatric Treatment 127

Loss of Earnings 128-134

Careers Counselling 135

Loss of Pension 136-138

Travel Expenses 139

ACCIDENT 2 140

I.CONCLUSION 141-142

APPENDIX 1

Mrs Justice Whipple:

A.INTRODUCTION

[1]This claim is brought by XP. She claims damages for personal injury and consequential losses. The First Defendant (“Compensa”) is the road traffic insurer of Mr Miroslaw Stamiak, who was responsible for a road traffic accident on 27 April 2011, when the Claimant was a front seat passenger in her brother’s car with which Mr Stamiak’s car collided. The accident occurred in Poland. This was “Accident 1”. The Second Defendant is Mr Przemyslaw Bejger, who was responsible for a road traffic accident on 25 March 2013, when the Claimant was a front seat passenger in a Fiat Ducato vehicle being driven by him on the M4 in the United Kingdom when it collided with another vehicle. His road traffic act insurers defend this claim on his behalf, and he has not taken any part in this litigation personally. This was “Accident 2”.

[2]Both Defendants have admitted liability for the accidents in which they (or their insured drivers) were involved. But the Defendants dispute the damages claimed, and dispute their relative contribution to the Claimant’s loss and damage.

[3]The claim is complicated by a number of features. The following is a summary. The first, and most upsetting, is the fact that Accident 1 caused the Claimant to miscarry a pregnancy at 16 weeks. The miscarriage was traumatic and undoubtedly caused the Claimant physical and psychiatric injury. The nature and extent of the psychiatric injury is disputed. The second is that after Accident 1, the Claimant resumed an abusive relationship with the father of her miscarried child. This resumed 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 is in dispute. The third is that the Claimant suffered Accident 2 around 2 years after Accident 1, and while she was still suffering from the consequences of Accident 1. Much of the argument in this case was concerned with the relative contribution to the Claimant’s loss and damage of each of Accident 1 and Accident 2. The fourth is the nature and extent of the Claimant’s ongoing personal injury and likely future loss. She remains significantly psychiatrically unwell now (the prognosis is not agreed). The quantum of damages, particularly in relation to future loss of earnings, remains in dispute. The fifth, which is really a specific aspect of the fourth, is that the Claimant has not conceived since she miscarried in 2011. She desperately wants a child. There is 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. Sixthly, Accident 1 occurred in Poland, and the damages consequent on it fall to be determined according to Polish law. Accident 2 occurred in the UK, so the damages are assessed under domestic law.

[4]In this judgment, I shall set out the facts before turning to the expert evidence to the extent that it is agreed. I shall then consider the issues which are in dispute, before turning to the figures. I have ordered that the Claimant’s identity should be protected, and for that reason she is referred to as XP. I gave my reasons in a separate judgment. B. FACTS Background

[5]The Claimant was born in 1976 in Poland. She is well educated and has an MA in management and marketing from a Polish university. She came to the UK in 2000, and has lived here ever since. She stayed here initially as a student, with restrictions on working. But Poland joined the EU in 2004 and from that date she was free to work in the UK unrestricted. Her first full time job (starting in 2004) was with a mail order company based in London. She earned £17,000 pa plus benefits including private healthcare. That job came to an end when the company moved out of London. From October 2005, the Claimant got a better-paid position at another company (“Company 1”). This was initially a fixed term 2-year contract for £20,000 pa plus benefits, including pension and private healthcare. Her contract became permanent, at a salary of £21,000 pa (plus benefits). She left that job in 2008 and briefly went back to Poland. She returned to the UK and in May 2009 got a job at a JobCentrePlus, employed by the Department of Work and Pensions (“DWP”). She started on a one-year fixed term contract at a salary of £23,940 with a pension (to which DWP contributed 18.8%) giving an overall salary value of around £27,000. Her one-year contract was renewed several times. The Claimant was in this job when she had Accident 1.

[6]In around July 2010, the Claimant started a relationship with a man she had met at her work called Haydn. The Claimant broke off that relationship in around January 2011. Shortly afterwards, she found out she was pregnant by him. She was pleased to be pregnant: she had been thinking about having children and this was good news. She told Haydn about the pregnancy; he was pleased; the relationship resumed at that point. On 6th April 2011, the Claimant had a scan. The baby was 16 weeks gestation. All seemed well. The due date was 13 October 2011.

[7]On 23 April 2011, the Claimant flew to Poland to see her parents over Easter. Accident 1

[8]Accident 1 occurred when the Claimant was a front seat passenger in a car being driven by her brother. The other vehicle hit the side of her brother’s car as it reversed out of a side turning. After the accident, she went back to her brother’s house by taxi (the car was beyond repair). The Claimant fell asleep but was woken up by painful stomach cramps and bleeding. She got into a warm bath to see if that would ease the pain. She started bleeding more profusely. The baby then came out while she was in the bath. She recalls that it was recognisable as a human fetus. Her brother had called the paramedics, who took her out of the bath and to hospital. She woke up in hospital, in significant pain, bleeding and dizzy. She underwent surgery to evacuate retained products of conception (“ERPC”). She remained in hospital for 3 days. She was discharged with strong pain killers, a neck brace and advice to avoid having sexual intercourse for 3-4 months. Between Accident 1 and Accident 2

[9]The Claimant returned to the UK on 3 May 2011 and returned to work as she had planned to the following day, 4 May 2011. No one at work had known she was pregnant, and she told no one of the miscarriage. She felt that she was still in shock but tried to get on with life as normal.

[10]Haydn was waiting for her when she came out of work that day. He was angry that she had lost the child and became aggressive. From this point Haydn became increasingly erratic and abusive in his behaviour. The Claimant describes herself as being traumatised, disorientated and very vulnerable at that stage. Haydn repeatedly forced himself on the Claimant in the subsequent days and weeks, even though she told him she did not wish to have sex.

[11]In the days and weeks following, the Claimant became tearful, particularly around pregnant women or mothers with small children. This was a problem at her workplace, where there were members of the public present.

[12]On 5 May 2011 she consulted her GP for the first time about Accident 1. She was reviewed after a week, and then again on 19 May 2011. She took some time off work certified by her GP. She was reporting problems associated with her whiplash injury, as well as seeking counselling to help with her miscarriage. She was certified fit for work with amended duties on 8 June 2011 but the Claimant says that her employer did not make allowances when she went back on 9 June 2011. She started counselling on 24 June 2011 and had regular sessions through to 31 August 2011. Matters deteriorated with Haydn, and she sought some assistance from the police, although she did not at that stage make a formal complaint against him. She attended her GP on 27 July 2011 with a number of problems, relating to her relationship, her work, and her physical symptoms. Her self-assessment score indicated that she was anxious with some signs of depression; the notes record “very flat effect”. She was given a one month certification for part time work.

[13]On 27 July 2011, she asked her employer not to renew her contract because she felt she could not stay at work. Her request for part time work had been refused and she says she was looking for a way out. That contract was due to end in November 2011.

[14]On 3 August 2011, she became very tearful at her counselling session. After this session she called the police, and after speaking to the domestic violence team, she made a formal complaint about Haydn. Haydn was arrested; it turned out that he was married and had children. The Claimant applied to the County Court for a non-molestation order. She went back to her home on 5 August 2011, once she was sure that he was no longer a threat to her.

[15]The Claimant struggled on at work. She was due to leave on 7 November 2011, but did not have another job to go to, so agreed to stay on until March 2012. She was having vivid nightmares by this time, of babies in pools of blood in the bath. She was blaming herself for the miscarriage. She continued to find work very difficult, particularly around pregnant women or mothers with children.

[16]She could not find other work and left the DWP in March 2012 without any job to go to. She claimed jobseekers’ allowance and continued to look for work.

[17]She had more counselling between 1 March 2012 and 24 May 2012. Her GP diagnosed a depressive episode on 18 May 2012.

[18]The Claimant applied for a number of jobs after leaving the DWP, but without success. She cried in one interview, at which point she realised that it was going to be difficult to get another job. But money was running low. For many years she had harboured a plan to start up her own company selling amber jewellery. She started to work up a business plan, and identified three suppliers in Gdansk, Poland, with whom she could work. She set up a company (“M Ltd”) in August 2012. The website went live in November 2012 in time for the Christmas seasonal sales. The Claimant put all her savings, including the proceeds of the sale of a flat in Poland, into the company.

[19]She presented at the GP surgery again on 20 November 2012. The notes record a history of the road traffic accident, miscarriage, domestic violence, restraining order against her boyfriend and a sense of being let down by the police who had not charged him. She was low but not actively suicidal. The next appointment was on 11 February 2013 when she presented with a headache which had been going on for several months including over her left eye and around her cheek with numbness, pain in her neck and tingling in the right arm. The GP noted that “pt very low and stressed….Unable to move on with her life post DV and miscarriage and RTA-pt still waiting for compensation from RTA.” The Claimant was noted to be worried that she had brain cancer. She was listed for review in a week, and declined anti-depressants (as she had before). She was then seen by the counsellor on 12 March 2013, by which time she was assessing herself as having signs of depression and anxiety.

[20]The Claimant decided to move away from her home in South West London, to get away from reminders of the “dark time in my life”. She identified a suitable place to live. She found a suitable property to rent and was due to move on 25 March 2013. Her witness statement says this (§ 40):

“…I was starting to feel some positivity again. I had experienced the worst 2 years of my life. I had a new business and a new place to live. However, I was still depressed and had not dealt with my grief over the loss of my baby. I had stopped socialising and withdrew myself. I was hoping the change in area would help me heal.”

Accident 2

[21]On 25 March 2013, the Claimant was involved in Accident 2. This occurred when she was a front seat passenger in a van driven by Mr Bejger, whom she had hired to help her move. She was half asleep when the van was hit from behind. She felt a huge impact and heard a very loud bang. The car was spinning. Her head hit the left window and she lost consciousness for a moment, and then found herself in the van right up against the motorway barrier. She was in pain, and was helped out of the van. She says in her witness statement (§ 42) that all her memories about Accident 1 came back and the memories of her child came back and she thought it was her time to die. Happily, no bones were broken and she was released from hospital; a friend took her to her home. After this accident, she found herself unable to get on with day to day activities, she had nightmares with vivid images of the child which kept coming back. She describes herself at this time as an “emotional mess”. After Accident 2

[22]Two days after that accident, on 27 March 2013, the Claimant was examined by Dr Harris-Hendricks, consultant psychiatrist instructed for the claim which was by then afoot against Compensa. The Claimant reported to Dr Harris-Hendricks that she had been involved in a second accident, and that “she was the unluckiest person in the world”. She said that she had started to feel some kind of hope before this second accident, but that the second accident had brought back many of her memories about the miscarriage. Dr Harris-Hendricks diagnosed her as being very unwell with a moderate to severe depressive illness, and concluded that Accident 2 had exacerbated earlier problems. She noted psychiatric as well as psychosomatic symptoms.

[23]In the months that followed, the Claimant struggled to work. She had pain from her back and knee. She would sometimes lie on the ground with her laptop and try to work in that position. In her witness statement (§ 46) she says that the rest of 2013 disappeared “into a mire of medical appointments and financial difficulties. I was not able to progress the business and my mental state was at an all-time low.” The GP notes for September 2013 record a diagnosis of post traumatic stress disorder (the first time this diagnosis is mentioned in the records), noting that she had had a road traffic accident 6 months earlier, a “near death experience with flash backs.”

[24]Over the next months and years, the Claimant complained of back pain, headaches and a tingling sensation in her lower limbs. A GP note dated 20 September 2014 recorded headaches behind her left eye and sharp pain, constant pain, associated with tiredness, dizziness, pain in knees; she was struggling to concentrate, her vision was blurry when the headache was very severe.

[25]The Claimant underwent cognitive behavioural therapy and eye movement desensitising and reprocessing therapy (“EMDR”). She doubts the latter helped her, because it required her to relive the accident and the nightmare of losing her baby. The Present

[26]That was more than three years ago now. She has not recovered from her difficulties. In her witness statement dated 4 May 2015 (§ 55) she says: “My reality is that I am depressed, I am alone and I do not have a child, I have massive ongoing financial concerns, and I have ongoing severe headaches and my general health deteriorated drastically”.

[27]She was seen by Dr Gaby Parker, consultant clinical psychologist and neuropsychologist on 5 November 2015. Dr Parker recorded the Claimant’s current self-reported symptoms as falling within three categories:(i) physical health difficulties, including pain in left arm, neck and back, facial pain, frequent headaches, loss of hearing and tinnitus in the left ear;

(ii) memory and concentration problems; and

(iii) mental health functioning, in terms of low mood, and a sense that the time for her to become a mother is “running out”. Dr Parker thought that the cognitive symptoms were attributable to mood problems rather than an undiagnosed head injury.

[28]The Claimant is desperate to have a child. She is now 40 years old and her fertility is reducing with age. She has not had a relationship since she broke up with Haydn in 2011. She doubts that she will be able to meet anyone as things stand. She no longer socialises and has lost touch with her friends from earlier years, on account of her depressed state and lack of funds to go out.

[29]M Ltd has not done well. She has invested all her savings in that business. Her parents have helped out and have also invested. The business is still functioning, but it has never made a profit, with most years to date making a significant loss. Apart from M Ltd, and the odd short term temporary job, she has not worked since 2012. She has applied for a number of permanent jobs but has been unsuccessful. She is significantly in debt, due to the failure of M Ltd and her lack of income to meet ordinary living expenses. C. MEDICAL EVIDENCE Orthopaedic Evidence

[30]The Claimant and Compensa instructed orthopaedic surgeons. Mr Korab-Karpinski was instructed for the Claimant and Mr Franklin for Compensa. They met on 4 January 2016 and produced a joint statement. They were in agreement on the issues within their expertise. Neither was called to give evidence at trial. It is agreed that the Claimant suffered the following orthopaedic injuries in Accident 1: a) Soft issue injuries around the cervical spine, the effects of which lasted around 3-4 months. b) Soft tissue injuries in the upper and mid-thoracic spine which settled between November 2012 and February 2013 (somewhere between 19 and 22 months post-accident).

[31]It is further agreed that the Claimant would have been expected to recover from the orthopaedic consequences of Accident 2 within 12 months, without any long term orthopaedic sequelae. It is further agreed that the lumbar spine problems and the pain in the Claimant’s left knee after the second accident resolved within 12-18 months post-accident. I take from this that the timeframe for resolution of the Claimant’s orthopaedic injuries resulting from Accident 2 is in the range of 12-18 months; and that left-knee pain ongoing after that date is unconnected with Accident 2. The experts agree that the physical injuries sustained in Accident 1 and 2 are now resolved and she is physically fit. Gynaecology Evidence

[32]The Claimant and Compensa instructed gynaecology experts. Miss Charlotte Chaliha was instructed for the Claimant and Mrs Ruth Cochrane for Compensa. They met on 18 January 2016 and produced a joint statement. They were in agreement on all the issues within their expertise. Neither was called to give evidence at trial. It is agreed that: a) the Claimant suffered a traumatic miscarriage as a result of Accident 1. b) A second trimester miscarriage followed by an uncomplicated ERPC (evacuation of the retained products of conception) would not be expected to have any long term impact on fertility. The miscarriage and ERPC did not therefore, in themselves, cause any long lasting physical damage.

[33]They then comment on the findings of Mr Sabatini, fertility expert, who saw the Claimant on 7 September 2015 for a consultation. They conclude that:

“In summary, we agree that [XP] suffered a miscarriage at 16 weeks’ gestation on 27 April 2011 as a result of the accident. Since then there has been no physical impairment to her fertility as a result of the accident. We agree with Mr Sabatini that it is impossible to say when [XP] will feel able to try to conceive naturally. Should this not be possible, and if she were to choose assisted conception, her chance of success has reduced simply because of the passage of time.”

[34]It is appropriate for me to deal with Mr Sabatini’s report at this point. His report, in the form of a letter to the Claimant’s solicitor, is dated 1 November 2015. He stated that: a) The Claimant’s chance of successfully conceiving in a natural attempt has reduced by 10-20% since Accident 1. b) If the Claimant was now to attempt assisted conception using donor sperm, her chance of conception by IVF would be approximately 30% (by contrast with 45% if IVF had been attempted at the time of Accident 1). c) Were she to have three cycles of IVF, the cumulative pregnancy rate would be around 70%.

[35]He provided costings for IVF treatment which form part of the Claimant’s claim against Compensa, which I shall address below. Psychiatric Evidence

[36]The Claimant and both Defendants instructed expert psychiatrists. The Claimant instructed Dr Rachel Gibbons, Compensa instructed Dr Michael Isaac, and Mr Bejger instructed Dr Dinshaw Master. The three of them met in January 2016 and produced a joint statement dated 20 January 2016. In that joint statement, they agreed on the following points: a) The Claimant experienced significant psychiatric reaction to the miscarriage which followed Accident 1. b) The Claimant subsequently became depressed and was depressed when Dr Gibbons saw her on 5 October 2015 and when Dr Isaac examined her on 27 February 2015 (Dr Master had not examined her). c) The Claimant currently requires treatment and this should take the form of psychological treatment (cognitive behavioural therapy or “CBT”) and an antidepressant. (There was some disagreement on the precise treatment she should have – I will come to this shortly.) d) The clinical outcome will depend on the efficacy of the treatment and the Claimant’s engagement with it. e) The Claimant’s depression will be vulnerable to relapse and even if she was to conceive, which would transform her general outlook, she would remain vulnerable.

[37]The psychiatrists were called to give evidence at trial. By the time their evidence was concluded, there was agreement on the following further points: a) The contribution to the Claimant’s psychiatric illness from her abusive relationship was modest. Dr Gibbons said that the abuse and the rape were a significant factor but “by far not the major factor”. b) Regardless of the precise diagnosis, whether depression or PTSD (post-traumatic stress disorder), the Claimant was entitled to reject desensitisation therapy (typically recommended for PTSD) which involved reliving the traumatic event, and opt instead for therapy which treated her current functioning (in the form of CBT and/or talking therapy). In terms of treatment, therefore, the psychiatrists agreed it was for the Claimant to choose the precise form of treatment that she found most useful. c) Whatever the historic diagnosis (PTSD or depression), the Claimant is now suffering from depression. d) It was reasonable for the Claimant to reject the medical advice for anti-depressants. This was a matter of choice for her. Dr Gibbons added that many women who are trying to get pregnant do not want to take anti-depressants. This was not countered by the other experts.

[38]There were some issues outstanding between the psychiatrists. Those issues are important to the determination of damages due from each defendant. I shall address them in the next section of this judgment. D. CAUSATION OF PSYCHIATRIC INJURY General

[39]Before embarking on an examination of the outstanding issues between the psychiatric experts, I make some general points about their evidence. First, Dr Master (for Mr Bejger) had not examined the Claimant, nor had he been present to hear her evidence at trial. Inevitably, that left him at a disadvantage in commenting: this is an unusual case, where so much depends on the view taken of the Claimant herself, assessed individually. To a great extent Dr Master agrees with Dr Gibbons, and the alignment of two out of three of the psychiatrists on key issues is significant. Where he disagreed with Dr Gibbons, I placed less weight on his view because he had not examined the Claimant.

[40]Most of the dispute lay between Drs Gibbons (for the Claimant) and Isaacs (for Compensa). They both have long experience as consultant psychiatrists working within the NHS and seeing a wide number of patients with mental health problems. It was clear that Dr Gibbons had thought carefully about this case. Specifically, Dr Gibbons was able to explain to me the deep sense of loss the Claimant feels about the miscarriage, the depression now consequent on her intense desire to have a child, and the potential problems which lie ahead, whether or not the Claimant now manages to conceive. Further, Dr Gibbons’ view of this case has remained substantially unchanged since she first reported, a further reflection of the close attention which I believe she has paid to this case from the outset of her involvement.

[41]By contrast, Dr Isaacs initially concluded that the Claimant suffered an “essentially normal bereavement reaction” following the miscarriage, which was not pathologically amplified into a diagnosable psychiatric disorder at all; he thought the Claimant would have got over the miscarriage if that was the only problem, and he attributed psychological trauma and the Claimant’s consequent depression to the abusive relationship; he thought that Accident 2 had triggered memories of Accident 1, and that Accident 2 was the greater cause of her ongoing difficulties; alternatively, the abusive relationship was the cause of her difficulties; he thought her prognosis was good (all this is set out in his first report dated May 2015). He adhered to his view of causation in his second report dated October 2015, but thought the Claimant was by that time more depressed and so he recommended antidepressants. His view in the joint statement shifted somewhat, and by the time he came to give evidence at trial, his view had shifted significantly. By then, he accepted that he had underestimated the Claimant’s reaction to the loss of the baby and that her reaction was “severe”; he accepted that the miscarriage was the trigger for the Claimant’s problems and the abusive relationship merely a relatively small exacerbating factor; he accepted that Accident 1 was “more psychologically important” than Accident 2; he recognised that the Claimant’s prognosis was difficult to predict, but was not good.

[42]Dr Isaacs has moved away from his initial view. Specifically, in his first report, Dr Isaacs appears to have underestimated the effect of the miscarriage, very significantly. That causes me to question the accuracy of Dr Isaac’s views in this case generally, in those areas where they conflict with Dr Gibbons’ views.

[43]On one point, I do accept Dr Isaacs’ expert view expressed from the witness box (I do not understand what he said to be disputed). He said that by 2015, the Claimant was suffering from “a more autonomous stand-alone depressive disorder which is consequent on the want of a child, and that goes back to the loss of the baby in 2011. The depression has taken on its own life”. That seems to me to be an apt description of the Claimant’s current situation.

[44]The Claimant’s current condition and prognosis is described by Dr Gibbons in terms which I did not understand by the point of trial to be seriously disputed. In her second report (October 2015), she says that the Claimant is now suffering from a mild to moderate depressive illness, which results from the loss of her baby, ongoing concerns about her fertility and financial problems. Disputed Issues

[45]I turn then to the matters in dispute between the psychiatrists. The first issue was the diagnosis post-Accident 1. Dr Isaac rejected Dr Gibbons’ diagnosis of PTSD, preferring to label her illness as a depressive episode following Accident 1. As I have said, little flows from this. But if it is material, I prefer Dr Gibbons’ evidence on this. Dr Gibbons’ view was that the Claimant’s experience of flashbacks to the bloodied baby in the bath, coupled with an aversion to reminders of that traumatic event (ie not wanting to see pregnant women or mothers with young children) fits the criteria for PTSD; triggered by a traumatic event. Dr Gibbons classified that PTSD as moderately severe after Accident 1, reducing to moderate just before Accident 2, then increased to moderately severe after Accident 2, still ongoing in September 2014. By October 2015, Dr Gibbons thought that the PTSD had resolved, and given way to a mild to moderate depressive illness, resulting from the miscarriage and ongoing concerns about her fertility and financial problems. I accept Dr Gibbons’ evidence about the classification of the Claimant’s psychiatric illness, and its intensity, over time.

[46]The second issue is the extent to which the Claimant was on an upward trajectory just before Accident 2 (and so, Compensa argues, would have continued on that trajectory towards recovery but for Accident 2). The Claimant describes herself in her witness statement as having some hope again by the spring of 2013, which is why she decided to move out of London for a fresh start. She told Dr Gibbons that she had felt “5 out of 10” at this point, and was subsequently knocked back by Accident 2. In the joint statement, Dr Isaac said that he thought she was “recovering well” from Accident 1 at this point. He put it somewhat lower in evidence before me, when he said that she was making a “fragile start to her recovery” at this time. But Dr Gibbons and Dr Master disagreed – on paper and in oral evidence - and thought that the Claimant was still significantly unwell in March 2013, based on the entries in contemporaneous GP notes and other material: a) The GP note of 11 February 2013 is particularly important: the Claimant is assessed as “very low and stressed”, as a result of the domestic violence, miscarriage and road traffic accident. This consultation was only around 6 weeks before Accident 2. It does not stand in isolation, but rather is part of an ongoing sequence of medical entries which can be traced back to Accident 1, of similar tenor. b) She was then seen by a counsellor on 12 March 2013, less than 2 weeks before Accident 2, and was recorded as having assessed herself as having significant symptoms of depression and anxiety. c) Separately, the Claimant was seen by Dr Chaliha, consultant gynaecologist, on 25 February 2013 in connection with the claim arising out of Accident 1. Dr Chaliha commented on her psychological state and noted that she was “significantly depressed and unable to function as previously”.

[47]When it was put to Dr Master that the Claimant was getting better just before Accident 2, he said that he did not think so; he said he would be circumspect about the weight to be attached to the fact that she had started her own business and had decided to move out of London – he thought these actions were part of the Claimant’s attempt to move on and put the past behind her, and demonstrated her personal fortitude and resilience in trying to push herself forwards, but he doubted that this was evidence of genuine improvement in her condition. I accept his evidence, which reflected Dr Gibbons’ view also. It is consistent with the contemporaneous evidence of her mental health functioning. I therefore reject Dr Isaac’s view that she was recovering and on an upwards trajectory just before Accident 2.

[48]The third issue is the impact of Accident 2. a) Dr Gibbons thought that Accident 2 had exacerbated the underlying symptoms, but that by October 2015 (around 2 ½ years after Accident 2), “by far the greater proportion” of the remaining psychiatric problems were consequent on the miscarriage, and was attributable to Accident 1. Dr Gibbons thought that the PTSD had resolved by this time, and given way to a depression which was now deeply ingrained. The physical problems (headache and unspecific pain) were somatic symptoms connected with the depression. b) Dr Isaac confirmed in oral evidence that Accident 1 was at least the greater part of the Claimant’s problems, but he said that Accident 2 remained responsible at least in part for the Claimant’s ongoing depression, because the Claimant had lost time as a result of Accident 2, this was “2 years of time when she could have been building her confidence” and that but for Accident 2, “there was a fighting chance that she would have got better”. I was not quite sure where this evidence led me: it falls some way short of establishing that Accident 2 is a material cause of the Claimant’s ongoing depression. Further, that evidence seemed to me to lack consistency with Dr Isaac’s acknowledgement that the Claimant is now suffering a “stand-alone depressive disorder which is consequent on the want for a child”. That want for a child is a direct consequence of the miscarriage in 2011 as a result of Accident 1. c) Dr Master argued that the consequences of Accident 2 only endured for 3-6 months. He based his views on the likely timeframe to recovery of a normal person of ordinary fortitude. The obvious answer to his evidence is that the Claimant was not a person of ordinary fortitude when Accident 2 occurred: she was already vulnerable as a result of Accident 1.

[49]On this issue I reject the positions at each extreme advanced by Drs Isaac and Master. I prefer the middle ground adopted by Dr Gibbons. I proceed on the basis that the psychiatric symptoms consequent on Accident 2 lasted around 2 to 2½ years, with a decreasing intensity over that period. They took the form, initially, of a sharp exacerbation of the Claimant’s existing PTSD which gradually diminished. By 2015, the Claimant was suffering depression consequent on Accident 1 solely: for the purposes of this judgment, I will take 2 years as the cut-off point for the contribution of Accident 2 to the Claimants psychiatric symptoms.

[50]The fourth issue is the Claimant’s current prognosis. The experts agree that this depends to a significant extent on whether she has a baby, and that is of course unknown and unknowable at the moment. On the hypothesis that she does have a baby: a) Dr Gibbons thought her outlook would improve but that she would be vulnerable to relapses into depression. She would need substantial support while going through IVF and during pregnancy. She was particularly vulnerable to post-natal depression. She would need support as a mother as well, given that she was likely to be anxious. b) Dr Isaac was more optimistic, and said that there was vulnerability to relapse, but the prognosis was not so dire; he did not think she was predisposed to post-natal depression by virtue of her recent psychological history.

[51]On the hypothesis that she is unable to have a baby: a) Dr Gibbons thought that there would be ongoing significant psychiatric morbidity, for the rest of her life, and she would never wholly recover from the depression. b) Dr Isaac was more optimistic concluding that with treatment, the Claimant’s outlook could be improved.

[52]I prefer Dr Gibbons on both hypotheses. I believe she has good insight into the Claimant’s condition, and its likely progression, entwined with the key issue of whether she has a baby or not. The Claimant has now been significantly unwell for over 5 years following Accident 1 and her psychiatric problems have become engrained and habitual. The likelihood is that she will continue to have psychiatric vulnerability for the rest of her life.

[53]The fifth issue is whether the Claimant will ever be able to return to her level of functioning for work purposes, as it was before Accident 1. Dr Gibbons thought that it was unlikely that she would ever be able to return to her pre-injury level of functioning. Dr Isaac thought that if she has treatment and the treatment works then she could probably return to pre-Accident 1 levels of functioning (and earnings), and this was the case whether she had a child or not; but on questioning, he did not, on balance of probability, think the treatment would be successful. So in the end there is little between the experts on this point. If there is a difference, I prefer the evidence of Dr Gibbons for reasons already given. Summary of My Findings on Causation of Psychiatric Injury

[54]By way of summary, these are my findings on the causation of the Claimant’s psychiatry injury: a) Accident 1 caused the Claimant to suffer PTSD which lasted for 4 years in varying intensities. b) The abusive relationship with Haydn was a relatively small contributing factor to the Claimant’s psychiatric problems after Accident 1. The contribution it made cannot be quantified precisely. c) Accident 2 caused an exacerbation of the PTSD which lasted for around 2 years, initially intense, but gradually improving. The precise contribution made by Accident 2 cannot be quantified precisely. d) By 2015, the Claimant’s psychiatric injury was no longer attributable to Accident 2. e) By 2015, the Claimant’s PTSD had resolved but given way to depression. Since then and to date, ongoing, she has been suffering from a mild to moderate depressive illness, which results from the loss of her baby, ongoing concerns about her fertility and financial problems. This is attributable to Accident 1. f) That free standing depression has been ongoing now for a year or so. Treatment is unlikely to succeed, but if it does succeed, she will remain vulnerable to relapses into depression for the rest of her life. g) If the Claimant decides to try to become pregnant, she will require psychological support as she attempts pregnancy, and if she becomes pregnant. h) If the Claimant has a child, her overall mood will lift, but she will remain anxious and will require psychological assistance to help her manage motherhood. She will remain vulnerable to relapses into anxiety and depression for the rest of her life. i) If the Claimant does not get pregnant, her mood is likely to remain low indefinitely. j) It is unlikely that she will ever return to her pre-injury level of functioning at work. E. POLISH LAW

Introduction

[55]Accident 1 occurred in Poland. The damages due will therefore be assessed according to Polish Law, applying EC Regulation 864/2007 (known as “Rome II”). I was assisted by experts in Polish law, and my conclusions on their evidence will inform my findings of fact as to the quantum of damage under Polish law. The parties were agreed on this approach, all citing Bumper Development Corporation v Commissioner of Police of the Metropolis

[1991] 1 WLR 1362

as authority for it.

[56]The following provisions of the Polish Civil Code are relevant to this case: a) Article 361. Causal relationship; damage. 1. A person obliged to pay compensation is liable only for normal consequences of the actions or omissions from which the damage arises. 2. Within the above limits, in the absence of a provision of the law or contract to the contrary, remedy of damage covers the losses which the aggrieved party has suffered, and the benefits which it could have obtained had it not suffered the damage. … b) Article 366. Joint and several debtors. 1. Several debtors may be obliged in such a manner that the creditor may demand the whole or part of a performance from all the debtors jointly, from several of them, or from each of them individually, and satisfaction of the creditor by any of the debtors releases the other debtors (joint and several liability of debtors). 2. All joint and several debtors are liable until the creditor is completely satisfied. … c) Article 441. Joint and several liability. 1. If several persons are liable for damage caused by tort, their liability is joint and several. 2. If damage results from an action or omission of several persons, the one who remedies the damage may demand that the other persons reimburse a relevant part, depending on the circumstances, and especially on the fault of a given person and on the extent to which he contributed to the damage arising. 3. Anyone who remedies damage for which he is liable despite lack of fault has a recourse claim against the perpetrator if the damage was caused due to a fault on the perpetrator’s part. … d) Article 444. Personal Injury. 1. In the event of bodily injury or health disorder, remedy of damage includes all resulting costs. On the aggrieved party’s demand, the person obliged to remedy the damage should pay in advance the sum necessary for medical costs and if the aggrieved party becomes disabled also the sum needed to train him for another occupation. … e) Article 445. Monetary recompense. 1. In the instances referred to in the preceding article, the court may award an appropriate sum to the aggrieved party as monetary recompense for the harm suffered. … f) Article 448. Infringement of personal interests. In the event of infringement of one’s personal interests the court may award to the person whose interests have been infringed an appropriate amount as monetary recompense for the harm suffered or may, at his demand, award an appropriate amount of money to be paid for a social cause chosen by him, irrespective of other means necessary to remove the effects of the infringement. … g) Article 481. Delayed monetary performances. 1. If a debtor is late with a monetary performance, the creditor may demand interest for the period of delay even if he has not suffered any damage and even if the delay was due to circumstances for which the debtor is not liable. … h) Article 817. Performance date. 1. The insurer is obliged to make the performance within thirty days of being notified of the event. 2. If it is not possible to clarify the circumstances needed to determine the insurer’s liability or the amount of the performance within the above period, the performance should be made within 14 days of the day on which, having used due care, it was possible to clarify the circumstances. However, the insurer should make the undisputed part of the performance within the period set forth in § 1.

[57]There was a substantial degree of agreement between the Polish law experts. They agreed that: a) the Polish Civil Code places the burden of proof on the Claimant. b) So far as redress is concerned, the amount awarded must be meaningful (they said “economically appreciable”) and must therefore reflect the Claimant’s conditions and standard of living in the country of residence, if that is not Poland. c) So far as pecuniary losses are concerned: i) The Claimant can recover compensation for all “resulting costs” (article 444). This covers loss of earnings and other ordinary consequential losses. ii) Causation of loss is tested by asking whether the claimed loss is a “normal consequence” of the negligent act or omission (article 361). This is an objective test, which is not the same as asking whether damage is foreseen (although it may equate to whether damage is “foreseeable”, in an objective sense). Whether something is a normal consequence depends on whether there is an adequate causal connection; even unusual or sporadic consequences may be regarded as adequate or normal because normality does not mean typical; rather, “is a question of the suitability of a given cause to entail a given effect”. d) Interest is awarded on pecuniary losses as a matter of course. The statutory rate of interest was 13% up to 22 December 2014, from 23 December 2014 to 31 December 2015 was 8%, and since 1 January 2016 has been 7%. (The date from which interest should be awarded was disputed and is considered below.) e) Although future losses are usually awarded in the form of periodical payments, they can be compensated by a lump sum. f) There is no obstacle as a matter of principle to awarding damages to compensate a person for the loss of fertility provided the causation of that loss, by reason of the accident, is established (ie it is a “normal” consequence).

Summary of Disputed Issues

[58]The following Polish law issues separated the experts: a) the interpretation and application of Article 441, relating to joint and several liability; b) the appropriate rate of interest on damages due under Polish law; and c) the appropriate level of compensation for non-pecuniary losses, applying Polish law.

[59]There was no dispute about the approach to pecuniary losses past and future (although quantum was not agreed between the Claimant and Compensa). I shall deal with those heads of loss separately in this judgment, applying the agreed approach.

Experts

[60]Ms Jolanta Budzowska was called by the Claimant. She is a partner in the law firm Budzowska Fiutowski and Partners in Krakow. She has 20 years’ experience of bringing claims for personal injury in the Polish courts, many of them on behalf of severely injured clients. She is a member of the Pan-European Organisation of Personal Injury Lawyers. She is also a member of a “provincial committee” which awards compensation outside the court system for medical accidents, assessing compensation according to the approach applied by the Polish courts under the Civil Code.

[61]Compensa called Dr Katarzyna Ludwichowska-Redo. Dr Ludwichowska-Redo did qualify as a solicitor in Poland in 2013, but has never practised as a solicitor. She has an impressive academic record and has written extensively on the Polish law of tort, and has lectured and taught that subject at university level also. Most recently she was employed as a senior scientist at the Institute for European Tort Law in Vienna, Austria. Perhaps inevitably given her academic background, Dr Ludwichowska-Redo was at a disadvantage to Ms Budzowska in describing the ordinary practice and procedure of the Polish courts, and in anticipating the outcome of this claim, had it been litigated in Poland. Yet, that outcome is the very “fact” which I am required to find, and which forms the basis of this judgment so far as it awards damages consequent on Accident 1.

[62]Where the opinions of the two experts diverged, I found Ms Budzowska’s evidence to be the more compelling, because of Ms Budzowska’s familiarity with the Polish legal system. Resolution of Polish Law Issues a. Art 441, joint and several

[63]Ms Budzowska told me that article 441 was intended to protect Claimants by enabling them to claim damages from one tortfeasor even where more than one tortfeasor has contributed to the damage; that sued tortfeasor can then seek contribution from co-tortfeasors if appropriate. She said that article 441 applies in situations where the damage caused by the negligent act or omission of more than one tortfeasor was “indivisible”. She also said that she thought the Polish court would find the Claimant’s psychiatric illness to be a single “indivisible” form of harm, incapable of precise separation between the contributions made by Accident 1 and the abusive relationship (and indeed by Accident 2). For that reason, she was of the view that article 441 applied in Polish law to render Compensa liable for the totality of the Claimant’s psychiatric injury following Accident 1, even if there was a contribution to that overall harm from other sources.

[64]Much of Dr Ludwichowska-Redo’s report was concerned with explaining how the chain of causation can be broken by the intervening acts of third parties; in her report, and indeed in the joint statement, Dr Ludwichowska-Redo suggested that the acts of Haydn in abusing the Claimant were an intervening act which “set a limit” to Compensa’s liability. I understand this view to have been posited on the operative cause of the Claimant’s psychiatric illness being the abusive relationship rather than Accident 1. But the joint view of the psychiatrists is that Haydn’s conduct was a “modest” contributing factor. Accident 1 remained the most important contributor to the Claimant’s ill-health. On that different factual hypothesis, Dr Ludwichowska-Redo accepted that Compensa remained liable for the full damage. Much of her evidence became irrelevant in light of that agreement.

[65]If there remained any distance between the experts on the joint and several liability point, I prefer the evidence of Ms Budzowska. I accept her explanation of the policy which underlies article 441, and her evidence about other cases when the article has been invoked by the Polish courts to meet cases analogous with this one. b. Date for interest to run

[66]Ms Budzowska acknowledged that there were two schools of opinion on the date from which payment of interest runs in Poland. The first is that interest runs from shortly after the date on which the demand for payment is made, and constitutes interest for the delay in meeting that demand (noting article 817, which would apply here because Compensa is an insurance company, requiring payment within 30 days). The demand for payment means the first demand or notification, which may be earlier than the date of issue or service of proceedings. From that date onwards, it is open to a defendant to meet the Claimant’s claim for compensation (as and when aspects of it are presented), and Articles 481 and 817 of the Polish Civil Code, applied in concert with the relatively high rate of statutory interest awarded in Polish law on both pecuniary and non-pecuniary damages, reflect a public policy of seeking to encourage defendants to do just that. In this case, the claim was notified by letter of claim dated 26 September 2011. The claim was not quantified at that stage, but I am satisfied this was the “notification” to which article 817 refers, and is the date from which interest should run, on the first school of thought. The other school of thought is that interest should run from the date of judgment. Ms Budzowska told me that the former has now gained much greater foothold in Poland and is the basis on which she would expect interest to be awarded were this case being litigated in Poland. Dr Ludwichowska-Redo said she was unable to disagree with Ms Budzowska’s experience of the usual approach in the Polish courts, but simply acknowledged that there are two schools of opinion, and maintained that both are current, and open to me to adopt in my quantification of the Claimant’s losses.

[67]Mr Doherty for Compensa invited me to award interest under English law in preference to Polish law. He argued that this was open to me on the basis that interest was a procedural matter, and so I had a choice as to my approach, citing Maher v Groupama Grand Est

[2009] EWCA Civ 1191

. I do not need to analyse (or decide) the issue of whether the award of interest in this case is a substantive or a procedural matter. I can simply say that if interest on the award against Compensa is a procedural matter, to be resolved under English law, then I would follow the suggestion made in Maher v Groupama (which includes a citation from Lesotho Highlands Development Authority v Impregilo SpA [2004] 1 All ER (Comm) 97 at [33]), to the effect that the domestic court might, in exercising its discretion under s 35A of the Senior Courts Act 1981, wish to take into account of the relevant provisions of foreign law relating to the recovery of interest, including the rate of interest which would have been payable in that other country. It is appropriate in this case that interest on the award should be calculated under Polish law. That would be consistent with this Court’s role in hearing the Claimant’s case against Compensa under Rome II, namely to arrive at a figure for damages which equates to that which would have been awarded by a Polish court if this case had been heard in Poland. Any different approach would be inconsistent with that role. I reject Mr Doherty’s invitation.

[68]I accept Ms Budzowska’s evidence as to what is more usual practice in Poland. I award interest from 30 days after the date of the demand (by which I mean the date of first notification in 2011), on the basis that a Polish court would be likely to do that. c. Quantum of Redress under Polish Law

[69]Both experts agreed that compensation is due under Articles 445 and 448 of the Polish Civil Code for non-pecuniary losses (called “Redress”, and, as I understand it, akin to ‘general damages’ in domestic law for the types of loss described in those two articles). They agreed that there are no tables or guidelines for quantum under these heads, and other cases provided general guidance only, because the doctrine of precedent does not apply in Poland.

[70]Ms Budzowska indicated that in her view the Polish Court would award 350,000-450,000 PLN as compensation under Article 445; this took account of the higher prices and earnings in the UK, and built in an uplift of 100% to reflect the fact that the Claimant lives in the UK where prices are higher. That amount was predicated on my acceptance of Dr Gibbons’ evidence in preference for Dr Isaac’s (as I have indeed found). The award under this head is for damages for pain and suffering caused by bodily injury and health disorder. Ms Budzowska told me that in Poland, the life of a human being, including the life of an unborn child, holds a fundamental constitutional value, and the harm to a mother who loses a child is generally considered to be severe.

[71]She advised me that the Polish Court would award 50,000-100,000 PLN as compensation under Article 448, noting the special significance of the Claimant’s right to a family life consequent on the loss of the child. She cited a recent decision by the Krakow Court of Appeal, in which 102,000 PLN was awarded under Art 448 to a woman who was living in Poland who had lost an unborn child at a similar stage of gestation. She noted that her own figures had not taken account of the possibility that the Claimant might never be able to have a child (rather she had assumed that the Claimant would be able to have a child, and the compensation was for the loss of the baby in 2011, combined with the consequent long interruption to the Claimant’s family plans), so if anything were on the low side.

[72]Dr Ludwichowska-Redo declined to offer any estimate of quantum, noting that this was beyond her expertise. Although she criticised Ms Budzowka’s 100% uplift to reflect the higher cost of living in the UK, Dr Ludwichowska-Redo did not offer me any alternative, and did not refute the fact that by any measure, prices and earnings in the UK are significantly higher than in Poland.

[73]Overall, I am satisfied that Ms Budzowska’s brackets for redress under Articles 445 and 448 are reasonable and I accept them. I shall now come to the precise qualification of redress. F. DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITY

ACCIDENT 1 - REDRESS

[74]I take the view that a Polish court would make awards towards the upper end of each bracket put forward by Ms Budzowska. Under Article 445, noting the life-long effect of the psychiatric injury imposed on the Claimant, the devastating interruption to her life that Accident 1 has caused, and the fact that we are now 5 years post-accident and the Claimant remains uncompensated, I am satisfied that the appropriate figure to award is 425,000 PLN (Polish Zloti). The sterling equivalent is around £75,000.

[75]Under Article 448, the appropriate figure to award is 75,000 PLN. Mr Brindle counsel for the Claimant invited me to go above the top end of Ms Budzowska’s bracket, largely on the basis of the one case identified by Ms Budzowska where 102,000 PLN was awarded under Article 448 for a claimant resident in Poland, so (he said) suggesting that a much higher award was warranted for the Claimant in this case who is resident in the UK. I decline that invitation: it was the joint view of the experts that other cases where awards have been made are not to be used as providing any kind of precedent; further, on review of that case report, it seems that there were significant differences between that case and this case which might justify a higher award in that case. I prefer to stick to the bracket suggested by Ms Budzowska in her report, as a reasonable guide, and to pitch my award towards the upper end of that. The sterling equivalent is around £13,000.

[76]The resulting total figure for redress, in sterling, is £88,000. (This figure disregards the exacerbation in 2013-2015 by virtue of Accident 2, which falls to be considered separately. Further, I am satisfied that it is correct in this case to make the award in pound sterling and not Polish Zloti. My reason for so concluding have been given separately and I do not repeat them here.

[77]Both parties addressed me on the appropriate level of general damages had this been a domestic case. I do not need to reach any view about what the domestic law damages would have been, but wish to record my doubt about some of the arguments presented to me. I do not believe that Mr Doherty is right to suggest that general damages in this jurisdiction would be limited to a figure within the “moderately severe” bracket for PTSD or other psychiatric damage in the Judicial College guidelines. Any domestic court would have regard to the specific and aggravating features of this case: traumatic miscarriage, fertility issues consequent on that loss and exacerbated by the time which has now elapsed, anxiety about infertility, desire for a child, orthopaedic damage, fluctuating intensity of psychiatric harm, interruption to life plans and career, poor prognosis, and so on. These features would, I think, have taken the award out of the brackets relied on by Mr Doherty.

ACCIDENT 2 – GENERAL DAMAGES

[78]Accident 2 caused an exacerbation of the Claimant’s PTSD, initially severe but tapering off over the next two years. It also caused orthopaedic injuries which continued to cause pain for 12 to 18 months. There were headaches and generalised pain which were at least in part a consequence of Accident 2. I agree that the relevant brackets within the Judicial College Guidelines (13th Ed) are: a) Orthopaedic injuries, minor neck injuries, resolved within one to two years, £3,630 to £6,600; and b) Psychiatric injuries, less severe PTSD, virtually full recovery within one to two years, £3,300 to £6,850. This bracket reflects the fact that Accident 2 caused an exacerbation of existing injury.

[79]Mr Meredith-Hardy for Mr Bejger suggests that the appropriate award for general damages should be £9,000. Mr Brindle suggests £12,500.

[80]I conclude that the appropriate figure is £10,000 for general damages for pain and suffering and loss of amenity, attributable to Accident 2. Interest will be due in addition, on the usual basis of 2% pa from the date of service of proceedings.

[81]I am able to reach a figure for redress / general damages for each of Accident 1 and Accident 2, considered separately, by adopting an assessment which is fairly “broad brush”. For reasons which I shall describe below, when it comes to assessing the impact of each accident on special damages and particularly on past loss of earnings, it is not possible to separate out the effects of each accident and I shall have to take a different approach. G. SPECIAL DAMAGES ACCIDENT 1 Past Loss of Earnings

[82]The Claimant came to the UK in 2000. She found it easy to obtain work during the years 2004 to 2011. She appears to have done well in her jobs and to have got good work reviews. But for Accident 1, she would have remained in gainful employment.

[83]Although she had always wanted to set up her own jewellery business, I accept her evidence that the timing of M Ltd, and the scale of it, was a direct consequence of the injuries sustained in Accident 1: that accident caused her to give up her work at the DWP, she was unable to find employment elsewhere, and in those circumstances she decided to set up M Ltd. This was her attempt to rescue the situation. But for Accident 1, her situation would have been very different. Faced with being a single mother in 2011, it is probable that she would have opted to return to DWP after a generous period of (paid) maternity leave. Even if she had dabbled with a jewellery business while on maternity leave, the probability is that she would soon have realised that the business would be too demanding of her time when she had a young child to care for single-handedly, and she would have preferred secure and family friendly employment with the DWP.

[84]She would not have simply sat back and lived off benefits as Mr Doherty argues. A life on benefits is not attractive to those who have choices and are able to work. Moreover, the Claimant had no track record of living off benefits, rather her track record was impressively industrious. My impression of the Claimant in the witness box was of someone who remained determined, even now (and despite her various problems). It is likely that she would have managed to provide for herself and her child, even if she found that difficult at times: she was that sort of person.

[85]Both parties produced statistical evidence in support of their arguments; I prefer the statistical evidence produced by the Claimant’s employment expert, Mr Carter of Keith Carter and Associates (report dated 25 November 2015) based on a DWP survey which showed that 62% of lone mothers were likely to return to work; Compensa’s expert, Mr Halliday of Langman Ltd (report dated 19 November 2015) failed to identify clearly the cohort on which his different statistics were based (specifically, whether it included lone fathers as well as mothers) and so I am unsure of the applicability to those statistics to this case. In any event, I assess the individual, and statistics are of limited help.

[86]It is reasonable to postulate a promotion, as the Claimant does in her Schedule. This would only be modest advancement, to the role of Higher Executive Officer earning £28,830 pa gross, together with an expectation of a modest performance bonus. The Claimant was good at her job and was going to remain at the DWP for some time once she had her baby. She was living in London and she would have wanted the extra income which accompanied a promotion, particularly if it did not entail longer hours, but rather greater responsibility during the hours she was already committed to work.

[87]The total loss of earnings figure to the date of trial is claimed at £84,106.64, based on her earnings while at DWP. I conclude that the hypotheses which underpin this claim are reasonable: the Claimant would have remained working at DWP or some equivalent employer for the years to date, but for Accident 1.

[88]The issue of benefits was raised very late in the day by Mr Bejger’s lawyers and was not explored properly through disclosure or evidence at trial. For that reason, I disregard the issue of benefits entirely for lack of evidence and argument in relation to Mr Bejger. It is agreed that a small amount of benefits (Jobseekers’ Allowance) should be offset against the award as it related to Compensa.

Apportionment of Past Loss of Earnings between the Defendants

[89]Of that total past loss of earnings figure, the loss for the period when the Claimant was suffering the effects of Accident 2, which lasted for 2 years, was approximately £42,964.29 (taking the figures for the tax years 2013/14, and 2014/15).

[90]Mr Meredith-Hardy invites me to conclude that Mr Bejger cannot be held responsible for any part of that loss, which (he argues) would have been incurred in any event as a result of Accident 1, and was not therefore a consequence of Accident 2.

[91]When it comes to attributing damages between Compensa and Mr Bejger, all parties in this case invite me to start the analysis with the words of Laws LJ in Rahman v Arearose Ltd

[2001] QB 351

“[29] … The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible. To make that principle good, it is important that the elusive conception of causation should not be frozen into constricting rules. … [32] … Once it is recognised that the first principle is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible, the metaphysics of causation can be kept in their proper place: of themselves they offered in any event no hope of a solution of the problems which confront the courts in this and other areas.”

[92]Mr Meredith-Hardy relies on other authorities, of which Reaney v University Hospital of North Staffordshire NHS Trust

[2015] EWCA Civ 1119

is an example, to submit that I should ask myself the “but for” question: but for Accident 2, what would the difference have been? (To which hypothetical question he suggests the hypothetical answer, that Accident 2 made no difference and the Claimant would have been out of work in any event for the years 2013-15.) In Reaney, the Court cited with approval the following extract from Kemp and Kemp (136 Release) Ch 3, Ch 13-003 (see para 15): “…it sometimes occurs that the Claimant who is injured had a pre-existing injury or disability which means that he was not capable of independent existence in the first place, and the effect of the injury for which a claim is made has been to increase or enhance the Claimant’s need for care. What is the correct position in law? In principle, one would have thought that the correct approach would be to compare the Claimant’s needs after the injury for which the claim is being made with his needs before he was injured, and to make a valuation between the two”.

[93]In Reaney, the Claimant was already paralysed and wheelchair-dependent before she developed pressure sores through the Defendant’s alleged negligence. The Claimant’s pre-existing paralysis meant that she already had a care regime in place. There was thus a clear baseline against which the Court could assess how much, if any, additional or different care was needed as a result of the pressure sores.

[94]There are other cases where the facts are not so straightforward and in consequence the damages cannot be assessed simply by comparing the before and after. An example of the latter category is Rahman v Arearose in which the trial judge (Rougier J) concluded that the psychiatric effects of two separate incidents “are entwined around each other like ivy strands round a tree”. Rougier J made separate awards against each tortfeasor for those heads of loss where it was possible to do so (for example, general damages), but for other heads (including past and future loss of earnings) he took a global view and assessed the extent to which each defendant had contributed to the Claimant’s loss on a percentage basis, that percentage reflecting his view of the causative potency of each incident.

[95]I conclude, on the facts of this case, that it is not possible to separate neatly the effects of Accident 1 and Accident 2. This is not a Reaney case. This case better fits the Rahman mould. More specifically, this case falls into the following category, identified by Laws LJ in Rahman:

“[20] … it is shown that (a) each torfeasor caused some part of the damage, but (b) neither caused the whole, and (c) some part (but not all) of the damage would therefore have been occasioned to the claimant if only one tort – either of them – had been committed, but (d) on the evidence it is impossible to identify with any precision what part of element of the damage has been caused by which defendant.”

[96]The Court confirmed that in such cases, in arriving at a “just conclusion”, the Court is at liberty to adopt a broad brush approach which has to be translated into percentages (para 23 of Rahman).

[97]I conclude that is the correct approach here. I reject Mr Meredith-Hardy’s submissions to the contrary. I am not able to say that Accident 2 made no difference, or that the Claimant would have been unemployed in any event. I can only say that the combined effect of Accidents 1 and 2 led to her being unemployed for a period of two years. The just conclusion is that the two tortfeasors should share the losses between them.

[98]As a further and related objection, Mr Meredith-Hardy argues that the Claimant had already abandoned her job at the DWP by the time of Accident 2, and so, he says, the loss attributable to Accident 2 cannot be based on lost DWP earnings. I disagree. Once the principle of shared responsibility for the losses is established, the rest is simply calculation. The DWP earnings can, in my judgement, be used to value the Claimant’s losses as a result of the combined effects of Accident 1 and 2 for the two years after Accident 2. As against Mr Bejger, they are a reasonable proxy for her lost earnings in that period.

[99]I conclude that 75% of the loss for this period is attributable to Compensa and 25% is attributable to Mr Bejger. These percentages reflect the causative potency of each accident.

[100]I reach this conclusion applying domestic law principles. It was not suggested to me that Polish law is inconsistent with domestic law on this aspect of the case.

[101]That means that Mr Bejger is responsible for £10,741 of the past lost earnings. That figure falls to be offset against the damages due from Compensa under this head. Compensa’s share is therefore £73,366 from which it is agreed that Jobseekers’ Allowance of £2,311 should be offset, giving a total of £71,055. Travel Expenses

[102]These are claimed at £710.90 against Compensa. Compensa allows £300, noting that some of the claims relate to visits to solicitors and experts which are, strictly speaking, legal costs. The approximate midpoint is £500 and that is the amount I allow for present purposes.

Treatment Costs

[103]Treatment costs are claimed at £1,879.00 against Compensa. These costs comprise psychiatric treatment and fertility treatment. In its counterschedule, Compensa advances a number of arguments to the effect that Mr Bejger is liable in part or in whole for the psychiatric treatment costs. I am satisfied that the costs claimed from Compensa are properly attributable to Compensa, noting the separate claim for medical treatment advanced against Mr Bejger.

[104]So far as fertility treatment is concerned, Compensa argues that the Claimant’s fertility has not been impaired and there is no basis for this cost being compensated. I disagree. I shall deal with fertility costs more fully below, because there is an issue in relation to future costs under this head. I conclude, so far as past costs are concerned, that the Claimant had good reason to wish to consult a fertility expert, given the loss of her baby, and the effluxion of time since then, which has impacted adversely on her fertility. This cost was connected with, and a “normal consequence” of, Accident 1.

[105]The past treatment costs of £1,879.00 are recoverable in full against Compensa.

Medication

[106]Medication is claimed at £283.60 against Compensa. Compensa admits the claim for painkillers but disputes the rest of the claim, on the basis that the Claimant’s need for such medication was not proved or is not attributable to Accident 1. Most of the remaining cost is connected with the Claimant’s fertility concerns. I consider those concerns to be directly attributable to Accident 1 (and a “normal consequence” of them under Polish law). The claim for medication at £283.60 is allowed in full.

Miscellaneous Expenses

[107]Miscellaneous expenses (mainly photocopying of medical records) is claimed at £46.69 against Compensa. These are agreed.

Interest

[108]Interest will be due at the prevailing rate in Poland on that amount (on the basis outlined above), from the date falling 30 days after the date of claim. ACCIDENT 2 Loss of Earnings

ACCIDENT 2

[109]I have dealt with past loss of earnings above. I conclude that the lost earnings attributable to Mr Bejger are £10,741.

Travel Expenses

[110]Travel expenses are claimed at £528.55. Mr Bejger resists this claim. In the round, I allow £500.

Medical Treatment

[111]The Claimant claims costs of medical treatment at £1,146.50. Mr Bejger does not agree these costs. I have found that the effects of Mr Bejger’s negligence endured for around 2 years post-Accident 2. The claim for medical treatment is sound. I allow the amount of £1,146.50 as claimed.

Care and Assistance

[112]The claim is for £1,054 for 6 weeks’ care after Accident 2, provided gratuitously by friends. She relied on friends to drive her to appointments for the rest of 2013. Mr Bejger resists this head of claim, but does not advance any alternative figure suggesting that the claim is excessive and disproportionate, and consequently irrecoverable. I am satisfied that the Claimant has made out her claim for gratuitous care and assistance and that Mr Begjer’s various points lack substance. I award £1,054 under this head.

Medication

[113]The Claimant claims £980.91 for medication. Mr Bejger resists this claim without advancing any alternative figure by way of offer. I am satisfied that this claim has been made out and that Mr Bejger’s various points lack substance. I award £980.91 under this head.

Damaged Items

[114]The Claimant claims £70 as the cost of clothing destroyed in Accident 2. Mr Bejger resists this claim. I am satisfied the claim is made out in the amount of £70.

Miscellaneous

[115]The Claimant claims miscellaneous expenses of £225.79 for removal men to remove items from London to her new home, for a handyman to assemble furniture, for postage, and to cover the fee for access to medical records. Mr Bejger resists these various claims. I am satisfied that the Claimant has made out her claim, which I allow in the sum claimed of £225.79.

Interest

[116]The Claimant claims interest on her past losses at half the special investment account rate. Mr Bejger resists the award of interest, and avers that interest is discretionary. So it is, but it is standard practice to award interest on past losses at half the special investment account rate and I see no reason to depart from that standard practice in this case. I leave it to the parties to arrive at the correct figure for interest. H. FUTURE LOSSES

ACCIDENT 1

[117]For reasons which will become apparent, I will take the heads of future loss in a different order from that in which they are set out in the Claimant’s Schedule and Compensa’s Counter-Schedule.

Fertility Treatment

[118]The Claimant claims the costs of three cycles of IVF in the total amount of £18,150. I have already summarised the report of Mr Sabatini, fertility expert. If the Claimant has that treatment, she is likely, on balance of probability, to conceive.

[119]The basis of the Claimant’s claim is simple: she wants a child. She argues that but for Accident 1, she would have had a child. So this part of her claim is to replace that which was lost when the Claimant miscarried in 2011 (acknowledging that no lost child can ever be “replaced”, in truth).

[120]Compensa denies this claim. It argues that the Claimant remains fertile, and can bear a child naturally. Compensa says that the problem is not her reduced fertility but her lack of partner, and that is nothing to do with Accident 1, but would have occurred in any event because the Claimant’s relationship with Haydn was never going to last.

[121]The Claimant’s answer to Compensa is as follows: first, even if the relationship with Haydn had broken down, but for Accident 1 she would have been in an entirely different position, because she would by then have had a child. Secondly, she argues that she has been unable to meet anyone else to form a relationship, because of Accident 1, the effects of which have meant that she no longer socialises, because she feels depressed and she has no money.

[122]In resolving this debate, the starting point must be to consider the Polish law question (because this head of loss falls to be assessed under Polish law), and ask whether the fertility costs would be seen as a normal consequence of Accident 1 and whether the treatment is necessary. Both Polish Law experts confirmed that if fertility is lost as a result of physical injury attributable to a defendant’s negligence, then a claim for fertility treatment would be recognised by the Polish courts. The experts were less sure of how the Polish courts would approach this claim if it was characterised as a form of treatment for the Claimant’s psychiatric injury (ie as treatment aimed at reducing the effects of her depression). But on the basis that the depression was directly attributable to Accident 1, Ms Budzowska thought that it would still be allowed, on that alternative basis. Dr Ludwichowska-Redo did not express a view whilst accepting that the argument was “not impossible”.

[123]I conclude that the claim for fertility treatment is not, on analysis, a claim consequent on psychiatric injury at all. The claim is, at its most basic, a claim to enable the Claimant to be put back in the position in which she should have been in 2011, by having a baby. It is restorative in nature. Looked at in that way, the claim for fertility treatment is not consequent on the psychiatric injury at all, save that it shares the same trigger, namely Accident 1. It is a claim consequent on the loss of the baby by miscarriage. That was a physical injury. That being so, properly characterised this head of claim is consequent on physical injury. And the claim is a normal consequence of that physical injury, in the sense that by it the Claimant seeks to restore what was lost in Accident 1.

[124]The Claimant’s loss of fertility is not absolute. Rather, her fertility is diminishing with time and age. She is now 40, and she is significantly less fertile than she was in 2011 when she lost the baby. She will continue to lose fertility year on year. Her reducing fertility is the reason she needs IVF. Time is pressing and she cannot afford to wait for a partner, or for better circumstances or health, before trying to become pregnant naturally. I am satisfied that this provides a genuine reason for her seeking IVF treatment. Quite simply, IVF treatment is necessary to restore the position.

[125]I acknowledge that she might, if her life had turned out differently, have stayed with Haydn (unlikely) or formed another relationship after Haydn and then become pregnant naturally. If she had met someone else, and if she had got pregnant naturally, that would have been a way of mitigating the loss consequential on Accident 1, by giving her a child. But because she has not met anyone, she has been unable to mitigate in that way. That is not to be held against her. Specifically, Compensa cannot rely on the fact that she has been unable to mitigate her loss in that way in circumstances where she is psychiatrically unwell, struggling financially, and socially isolated. These are good reasons why she has not been able to form a new relationship. They all result directly from Accident 1.

[126]I conclude that this head of claim is recoverable under Polish law as a normal consequence of Accident 1 which is necessary to restore the position. There is no dispute on the figures. I award £18,150 as claimed.

Psychiatric Treatment

[127]This is claimed at £3,300 to cover 22 further sessions of treatment to deal with future depressive episodes. Compensa offers £600 in its counter schedule. But the need, although not the specific approach, appears to have been broadly agreed by the psychiatrists in the joint statement and Compensa’s counter schedule does not accurately reflect the up to date expert position. Of the experts, I prefer Dr Gibbons’ more pessimistic (but I fear more realistic) view of the Claimant’s prognosis and future treatment needs. I award this sum in line with her view. It is reasonable. It will provide a fund for treatment to be used flexibly over the Claimant’s life time, as needed: £3,300.

Loss of Earnings

[128]The Claimant claims loss of future earnings on a multiplier / multiplicand basis, allowing her six months to get pregnant following the end of this trial (during which period it is said that she will not work), following which she will spend six months working with a careers counsellor, before obtaining work. Thereafter, so it is argued, she will re-enter the job market in an agency role in around a year’s time, before moving to a permanent role thereafter. The Claimant claims an ongoing shortfall between her lost earnings but for Accident 1 and her residual earnings capacity.

[129]Compensa argues that she is fit for work and has been fit for work for some years now: there is no loss; alternatively, that her losses are modest, reflecting six months for treatment, and offered by Compensa at £5,935.

[130]It is plain to me that the Claimant will suffer loss of earnings in the future. That will be through a combination of factors. First, she is currently not available for work because she wants to have IVF. The pressures of that treatment will keep her out of the workplace, reasonably so. Secondly, she is likely to have periods of recurrence of her depression. This is likely to lead to periods of unemployment. Thirdly, given her history, she is likely to find that even when fit for work, it will take her longer to find work.

[131]Further, her career has been set back by all that has happened in the last 5 years, and she will not get back to her pre-Accident 1 earning capacity. There is an ongoing shortfall in her earning capacity, compared to her earnings but for Accident 1. That shortfall will be lifelong.

[132]However, I do not consider that a multiplier / multiplicand approach is appropriate. There is much uncertainty about the Claimant’s employment aspirations for the future. I anticipate that she will now take some time to see if she can become pregnant; if she can become pregnant, then there must be a likelihood that she will choose to remain unemployed, and prepare for the baby, rather than go back to the workplace. If she has a baby, after all that has occurred, it is difficult to predict when she will choose to rejoin the work force.

[133]Polish law permits a lump sum to be paid to reflect this head of loss. An English Court can do so by making a Blamire award (Blamire v South Cumbria HA [1993] PIQR Q1). That is my preferred approach to this head of loss, in the circumstances.

[134]I allow for approximately 3-4 years net earnings, to compensate for periods when she may be out of work when she could have expected to be working, but for Accident 1. I add to the award an amount to reflect an annual shortfall in earnings for the remainder of her life. I do this on a broad brush basis, adopting round figures which are representative of loss rather than closely calculated. The resulting figure is £150,000.

Careers Counselling

[135]The claim is for £3,000. The claim is denied by Compensa on the basis that it would have been required in any event, alternatively, it is a cost consequent on the Claimant’s failure to mitigate her own loss. I reject Compensa’s arguments, which are out of kilter with the psychiatric evidence about the impact of Accident 1, and with my findings on the causation of the Claimant’s mental health problems. This is a reasonable claim which I allow in full.

Loss of Pension

[136]The Claimant claims £147,000 by way of loss of pension, based on a calculation prepared by specialist accountants, on the footing that the Claimant would have remained with the DWP until she was 67 years old. Compensa denies this head of claim on the basis that the Claimant’s employment with the DWP was not secure long term, and that anyway she will recommence pension arrangements once she gets back into the workplace.

[137]I cannot accept that she would have remained at the DWP for the rest of her working life and I conclude it is very likely that at some point she would have moved to a different employer. It is therefore incorrect to value her long term pension loss by reference to the DWP’s current pension terms and conditions. Further, credit must be given for the pension entitlement she will now be able to generate through future work (and I am satisfied that she will go back to work, although the precise timing of that, and the nature of the work she will take on, is difficult to predict – see above).

[138]In the round, I award £25,000 to compensate for loss of pension by reason of Accident 1. This takes account of accelerated receipt.

Travel Expenses

[139]The Claimant claims £1,254.90 for travel to appointments for future psychiatric treatment. Compensa offers £100. This claim stands with the claim for psychiatric treatment which I have allowed in full, and is a good claim. I allow it in the amount claimed.

ACCIDENT 2

[140]The Claimant does not claim any future losses against Mr Bejger. I agree that Accident 2 is not responsible for any of the Claimant’s ongoing losses. I. CONCLUSION

[141]I give judgment for the Claimant in the amounts set out in the table at Appendix 1.

[142]I am grateful to all three Counsel for the considerable help they provided in written and oral submissions, and for their efficient presentation of the evidence. 96. APPENDIX 1 Head of Damage Compensa Mr Bejgera. A. PSLA Art 445 redress 75,000 Art 448 redress 13,000 General Damages 10,000 Interest 46,191 242 Sub-total: 134,191 10,242

b. B. SPECIAL DAMAGES Loss of Earnings (after agreed deduction of £2,311 Jobseeker’s Allowance) 71,055 10,741 Travel 500 500 Treatment Costs 1,879 1,147 Medication 284 981 Miscellaneous 47 226 Care and Assistance 1,054 Damaged Items 70 Interest 38,719 119 Sub-total: 112,484 14,838

c. C. FUTURE LOSSES Fertility Treatment 18,150 Psychiatric Treatment 3,300 Loss of Earnings 150,000 Careers Counselling 3,000 Loss of Pension 25,000 Travel Expenses 1,255 Sub-total: 200,705

d. D. TOTAL 447,380 25,080

XP v Compensa Towarzystwo SA & Anor [2016] EWHC 1728 (QB)

Introduction

Summary of Disputed Issues

Experts

ACCIDENT 1 - REDRESS

ACCIDENT 2 – GENERAL DAMAGES

Apportionment of Past Loss of Earnings between the Defendants

Treatment Costs

Medication

Miscellaneous Expenses

Interest

ACCIDENT 2

Travel Expenses

Medical Treatment

Care and Assistance

Medication

Damaged Items

Miscellaneous

Interest

ACCIDENT 1

Fertility Treatment

Psychiatric Treatment

Loss of Earnings

Careers Counselling

Loss of Pension

Travel Expenses

ACCIDENT 2

Cited in 4 later judgments