Court awards damages for IVF following Claimants miscarriage in RTA
Mrs Justice Whipple’s judgment in the case of XP -v- (1) Compensa Towarzystwo SA (2) Prezeyslaw Bejger  EWHC 1728 (QB) is a helpful decision which illustrates the Court tackling complex quantum issues in a case in which the Claimant was involved in multiple accidents.
The Claimant (referred to as XP in the anonymised judgment) was a Polish national who had been residing in the UK since 2000. She fell pregnant in January 2011, although her relationship with the child’s father subsequently broke down.
In April 2011, the Claimant was involved in a road traffic accident whilst visiting family members in Poland. As the result of the accident, she suffered a traumatic miscarriage, resulting in physical and psychiatric injury.
The Claimant returned to the UK where she resumed the relationship with the father of the lost child. However this relationship became abusive and lasted only a few months. The effect of this on the Claimant’s psychiatric state was disputed.
Whilst still suffering from the consequences of the accident in January 2011, the Claimant was involved in a second road traffic accident in March 2013. This caused an exacerbation of PTSD, orthopaedic injuries and other headaches and generalised pain. These symptoms lasted for approximately two years.
The Defendants in respect of both accidents admitted liability, however the parties disputed quantum, and the relevant contribution to the Claimant’s injuries and losses resulting from each of the respective accidents. To complicate matters further, damages in respect of the first accident fell to be assessed according to Polish law (pursuant to EC Regulation 864/2007 – ‘Rome II’).
Although the case deals with a number of heads of loss, there are three issues which are likely to be of particular interest to practitioners.
Firstly, the Defendants disputed how the Claimant’s past loss of earnings should be apportioned between them. During the two year period during which the Claimant was suffering from the effects of the second accident, the Claimant suffered loss of earnings of almost £43,000.
The Second Defendant argued that the Court should apply a ‘but for’ test, citing the case of Reaney -v- University Hospital of North Staffordshire Trust  EWCA Civ 1119. It was argued that, in the absence of the second accident, the Claimant would have been prevented from working in any event, as the result of the continuing effects of the earlier injuries.
Whipple J differentiated the case from Reaney. It was not possible to separate neatly the effects of each accident, and the approach of the Court of Appeal in Rahman -v- Arearose Ltd and others  EWCA Civ 190 was preferred.
The Court ruled that it could only say that the combined effects of the two accidents resulted in the Claimant being out of work for a period of two years. The judge ruled that it was appropriate to apportion 75% of the loss to the first accident and 25% to the second accident, such a split reflecting the judge’s assessment of the ‘causative potency of each incident’.
Secondly, the Court dealt with the Claimant’s claim against the First Defendant for three cycles of IVF treatment. The Claimant contended that, absent the first accident, she would have had a child.
The Court agreed that the miscarriage was consequent to physical injury sustained in the accident. It was further accepted that the Claimant’s fertility was decreasing over time. By the time of assessment of damages in 2016, she was aged 40 years, and hence her fertility had declined since 2011, and would continue to decrease. The judge agreed that due to the passage of time, the Claimant could no longer afford to wait for a new partner or better circumstances before looking to conceive naturally. IVF treatment was therefore considered necessary to restore the Claimant to her pre-accident position.
Whilst the decision on this head of loss was, strictly speaking, a decision based on the judge’s application of Polish law, it is likely to be cited by future claimants in similar circumstances in cases in England and Wales.
Finally, practitioners will note the Court’s decision in relation to future loss of earnings. Given the uncertainty about future employment aspirations, particularly in view of the Claimant’s desire to have another child, it was difficult to predict if and when the Claimant would rejoin the workforce. Whipple J instead opted to make a broad-brush Blamire-type award of £150,000, calculated on the basis of 3-4 years’ net loss of earnings, together with an additional amount to reflect an ongoing additional shortfall in earnings capacity during the remainder of the Claimant’s working life.
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