The Weekly Roundup: Another Bank Holiday Edition

• Published date: 05 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury
• Law Firm: 1 Chancery Lane
• Author: Ms Sarah Prager and Henk Soede

The team seems to have done nothing but take days off lately; it's exhausting. And especially so when the legislature and courts seem to be determined to take important decisions in our absence. The nerve of it! The High Court distracted us with an important case on mitigation of loss and provisional damages, and another on jurisdiction, whilst Parliament passed the Motor Vehicles (Compulsory Insurance) Bill, deVnuking the law of England and Wales at the same time as the new Motor Insurance Directive does the same for Europe. It is interesting to see the divergence and convergence of UK and Eurolaw post-Brexit, particularly when both the UK and EU are consulting on legislation relating to package travel arrangements. No doubt there will be more to come on this in the coming months...

Brain Teasers: Mitigation and Provisional Damages

The recent decision by Hill J in Mathieu v Hinds, Avivia Plc [2022] EWHC 924 (QB) provides personal injury practitioners with guidance on two potentially difficult areas: mitigation of loss, and the availability of provisional damages in head injury cases involving a risk of dementia.

The facts

The Claimant, an artist, sustained a serious brain injury when, aged 29, he was struck by a moped whilst crossing the road. Aviva insured the vehicle (though not the driver) and judgment was entered against both Defendants, with damages to be assessed. It fell to the trial judge to determine:

(i) Whether the impact of the Claimant's injuries on his daily life is as extensive as he claims;

(ii) Whether the Claimant has mitigated his loss by refusing to undertake certain treatment;

(iii) Whether any damages to reflect lost income should be awarded gross to reflect the prospect of the Claimant being taxed on them;

(iv) Whether the Claimant's injuries have hampered his artistic productivity and if so to what extent;

(v) Whether any award to reflect a suffer a shortfall in artistic productivity and thus income should be quantified using a multiplicand/multiplier approach or a ' Blamire ' approach; and

(vi) Whether the Claimant should be awarded provisional damages in relation to the chance of developing dementia due to his brain injury.

A full examination of all of these issues is outside the scope of this article, but the judgment rewards reading in full. Weighing in at 360 paragraphs and three appendices, it is not a five minute undertaking, but it is a careful and accessibly written exposition of the law and the science in these fields. There is also an interesting passage relation to the incidence of taxation in respect of foreign domiciled Claimants' claims for loss of earnings, also outside the scope of this article.

Mitigation of loss

At paragraph 87 of the judgment Hill J set out the principles relating to mitigation of loss:

(i) A claimant must take all reasonable steps to mitigate loss consequent upon the defendant's breach and will be debarred from claiming "any part of the damage which is due to his neglect to take such steps" ( British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd (No. 2) [1912] AC 673 at 689 , per Viscount Haldane LC).

(ii) In mitigating their loss, a claimant is only required to act reasonably and is not required to do anything outside the ordinary course of events. The standard of reasonableness is not high given that the defendant is an admitted wrongdoer ( McGregor on Damages (21st Edition), paragraphs 9-079 and 9-082).

(iii) That said, a claimant must to some degree act with the defendant's interests in mind as well as their own; and while a claimant might have acted reasonably as far as they are concerned, the...