There is no doubt that the most important case this month is the Court of Appeal decision holding that the power under the Damages Act 1996 Section 2 (9), to allow a departure from making periodical payment orders subject to the Retail Prices Index, could be exercised as the court considered appropriate and fair in all the circumstances, without the need to find exceptional circumstances.
The claimant had argued that the court should allow evidence with regard to linking periodical payments to an earnings-based index rather than the RPI. In large catastrophic injury claims, this could make a very significant difference to the amount of damages.
The defendants are seeking leave to appeal to the House of Lords
Flora -v- Wakom (Heathrow) Limited. Court of Appeal 29 July 2006.
Burden of proof on damages
The claimant was in a car crash and claimed that, as a result, he had post-concussional syndrome and was suffering from a rare form of double vision in both eyes known as bilateral monocular diplopia. The Judge found that he had failed to prove that he was suffering from this.
The claimant appealed on the basis that the Judge had been wrong or unfair to reject bilateral monocular diplopia on the basis that the claimant was putting forward a dishonest claim, because no such defence had been made at trial, and also the Judge had no evidence from which to decide that his post-concussional syndrome would clear up.
The Court of Appeal held that the Judge was entitled to find on the evidence that the post-concussion syndrome would clear up over time, and also that the claimant had failed to prove that he was suffering from bilateral monocular diplopia.
The case illustrates that it will be very difficult to overturn a Judge’s decision on burden of proof unless there is clear evidence that the Judge has failed to consider the evidence properly and deal with it.
Newman -v- Laver. Court of Appeal 31 July 2006.