on the 9th May 1996
CASE REPORT
On the 3rd December 1990, Captain Nigel Laughton, who was born on the 12th October 1965 and so was then 25, was doing the last three quarters of an hour of helicopter training on one of his Army courses. For some reason which seems never even to have been discussed publicly, let alone explained, the instructor decided that they would practise an engine-off landing from 550 feet: apparently it is perfectly possible to land without the engine, but only if you do it from about three times that height. Without warning he cut the engine, whereupon the helicopter plummeted to the ground, destroying itself (how many millions of pounds wasted?) and causing serious injury to Captain Laughton's back. Liability was admitted, and the assessment of damages was heard on the 16th and 17th April 1996 in the High Court in London.
Surprisingly, the instructor was not injured significantly, but Nigel Laughton sustained a serious soft tissue injury to his back at the disc between the 4th and 5th lumbar vertebrae. He was off work for a very short time, partly because he was driven to get back by the effects of Post Traumatic Stress Disorder, and he then struggled on for about three years coping with back pain. It got too much for him in the end, and he underwent a fairly new procedure called a Graf ligament stabilisation procedure (similar to a fusion, but not as rigid). That did not cure the pain, and he was discharged form the Army four years after the accident. He has continuous pain, which has effectively curtailed all his sports, and he is now reduced to watching and coaching (although characteristically he has become one of the best qualified cricket coaches in the country). He needs special chairs, and has to manage his daily activities so that he does not pay for excessive exertion by days of pain. He takes painkillers, uses a Transcutaneous Electronic Nerve Stimulator, and has frequent therapies (physio, reflexology, aromatherapy, acupuncture).
Not surprisingly, he developed P.T.S.D. (very well described in the agreed report by Dr Gordon Turnbull at Ticehurst), which made him obsessive, caused difficulty in temper control, and affected his personal relationships. Although he had pretty well recovered by the time of trial, the judge found that he was still vulnerable and that the prognosis was guarded.
The award for pain, suffering and loss of amenity was £35,000.
£7,500 for the loss of a lifetime's career.
Nigel Laughton had excelled in sport at school, and in the Army: he had captained all the relevant teams for several years, had played at junior Wimbledon, and was the captain of the Army cricket team in Germany. He comes from "a traditional service family", and joined the Army when he was young. At the time of the accident he was seconded to the Army Air Corps from the Black Watch, and he had just been accepted for a regular commission. Our case was that he was an exceptional young man who would definitely have risen to Brigadier at the age of 45, and who might have achieved General when he was 55 (there are four full Generals, 45 Major Generals, and 125 Brigadiers altogether): failing promotion to General, we argued that he would have left the Army with a wonderful track record, and would have been in demand in civilian life. The Army took a predictably unsympathetic view of someone whose life they had destroyed by the most crass carelessness (incidentally, as far as we know, the instructor is still instructing). First, they argued that he would have left the Army shortly after the date of the accident, ignoring the fact that they had just selected him for a regular commission. When that failed to deter his legal advisers, they then set about trying to show that he was an entirely average young man who would not have risen beyond the rank of Colonel, and would not have been able to find work when he left the Army. They were helped in this attempt by the fact that they were unable to find the results of a recent selection process in which the Plaintiff had come nearly top. The judge held that the Plaintiff had "an excellent career potential", and he was impressed by the evidence we had obtained from all ranks of Army personnel (from Major General Sir Somebody, covering most ranks to Warrant Officer Class 2). He said: "The Plaintiff fitted into service life perfectly, having an aptitude for leadership and an enjoyment of the community and family of the army....He shone in everything he attempted....(he) had very strong motivation to get to the top of his chosen profession.". He concluded that the Plaintiff would have reached Brigadier by 45 (although he then found that he was not satisfied that he would have worked beyond 55, which I found surprising).
Again typically, the Plaintiff had started a new career. He had started a geography degree at Oxford, and intended to go into teaching, in either the public or private sector. We predicted that he would rise to being a headmaster (that being consistent with our case that he was, and is, an exceptional young man who was likely to excel in whatever he put his mind to).
The total past loss was £32,000, and the future loss was £268,366.
Imagine our surprise when we were told, the day before the trial, that we were listed before the judge who had been the first to adopt the multiplier discount rate for which one of us has been arguing ever since he took silk! The arguments are now well-rehearsed, and so we won't repeat them here (they appeared in David Kemp's and Bill Braithwaite's articles in Quantum over the last few months). This judge took an enormous step forward, by saying: "No evidence has been addressed before me, as to the actual return given the conventional approach based upon a 4.5% discount figure. I have available before me the precise tool whereby compensation can be accurately assessed using the Ogden tables as a guide. I see no compelling reason why I should not apply them in this case. I agree with the reasoning of Dyson J, in the passage cited above." So, for the first time the point was won without evidence, which is exactly what Bill Braithwaite has been urging for some time. The judge used a discount rate of 3%. Unfortunately, of course, that approach has been overtaken, at least for the time being, by the Court of Appeal decision in Wells, Thomas and Page, in which a multiplier discount rate of 4.5% was said still to be appropriate.
The final figures were as follows:-
| Pain, suffering and loss of amenity: | £35,000 |
| Loss of congenial employment: | £7,500 |
| Loss to trial: | £47,250 |
| Future loss of earnings: | £268,366 |
| Future medical care and therapy: | £34,800 |
| Additional housing costs: | £20,000 |
| Loss of other army benefits: | £11,400 |
| Loss of pension : | £83,710 |
| Plus interest | |
| TOTAL AWARD: | £521,328 |
That award has now been reduced to take account of the Court of Appeal decision, bearing in mind the obvious risk that the Plaintiffs in Wells, Thomas and Page will appeal to the House of Lords, and succeed.
The Defendants made no approach until a few weeks before trial, when they made their only offer, of £250,000.
They did not pay that sum, or any, into court.
They made our lives easy by failing to put forward realistic offers.
As so often happens, when plaintiffs are forced to fight, they do better than they would have settled for, and far better than defendants ever seem to contemplate.
The Defendants' position was made more difficult by their failure to serve evidence in accordance with the directions order, and then seeking leave at trial (not even bothering to apply to the Master a couple of weeks earlier) to call evidence from a personnel officer to show that the Plaintiff was average. We resisted their application on the basis that they had given no reason for their default, and it was not fair on the Plaintiff because, although it is always said that his position can be protected by an adjournment, the reality is that plaintiffs are usually desperate to get their case over, and will not readily agree to it going off for an unspecified number of months.
BILL BRAITHWAITE Q.C. was instructed by Geraldine McCool of Leigh Day & Co.
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