A landmark case that could have
a significant impact on the mechanism used to calculate damages in
personal injury claims has been won by Mourant Ozannes' litigation
team in Guernsey.
On 7 March 2012 the Judicial
Committee of the Privy Council (comprising Supreme Court Justices
Lord Hope, Lady Hale, Lord Brown, Lord Clarke & Lord Dyson)
handed down judgment in the case of Simon v Helmot  UKPC 5,
unanimously dismissing the appeal from the Guernsey Court of Appeal
of the Defendant to the original Royal Court of Guernsey
proceedings, Dylan Simon.
The effect of the decision is to
uphold the Guernsey Court of Appeal's award of almost £4.5m in
addition to the £9.3m already awarded at first instance making a
combined total of almost £14m and confirms the highest lump sum
award ever made in the United Kingdom and Crown
Manny Helmot is a former
Commonwealth Games cyclist who suffered severe head injuries after
being knocked from his bike by a car driven by Mr Simon on a
training ride in Guernsey in 1998.
Mourant Ozannes acted for Mr
Helmot throughout. Advocate Gordon Dawes appeared on behalf of Manny
Helmot in the Royal Court Guernsey, the Guernsey Court of Appeal
and with James Dingemans QC in the Privy Council.
The Privy Council's judgment is
of considerable interest and importance in the many common law
jurisdictions without statutory mechanisms for dealing with such
matters. The case will be looked at closely all around the
common law world. In addition it is likely to have a
considerable impact in the UK itself. The Lord Chancellor is
in the process of reviewing the discount rate to be used in England
and Wales, having last set the figure back in 2001 at 2.5%. He
is likely to come under even greater pressure to make a substantial
downwards adjustment which itself will be reflected in much higher
lump sum awards of damages in England and Wales also, Scotland is
likely to follow.
The Privy Council agreed that
the first and foremost consideration was that a claimant was
entitled to full compensation for his or her injuries. In the
absence of a statutory regime dealing with such matters the
starting point was the House of Lords case of Wells v Wells and the
use of rates of return derived from Index Linked Government Stocks.
Those rates of return had fallen substantially in recent
years. The effect of wage inflation had also been
recognised. The expert evidence called by the claimant had
been given by experts whose credentials had been as impressive as
they could possibly have been and was essentially
unchallenged. In the circumstances it was not open to the
Guernsey Court to find that the claimant's case as to future losses
had not been proved. The discount rates argued for by the
claimant had been proved, including the negative discount rate of
-1.5% and therefore the (very high) multipliers resulting from
those rates and the appeal failed.
commented: "This is a wonderful result for Manny Helmot and
his family. The judgment assures Manny's future care and gives
him and his family peace of mind. It is also a wonderful
result from a legal point of view which is likely to have an effect
in many jurisdictions around the world. The principles
established in this case will mean substantially higher lump sum
awards of damages for seriously injured claimants in those
jurisdictions affected and enable them to fund their care
arrangements in a way that was not possible with the law as it was
understood to be. It is very exciting also for Guernsey to
produce such an important case which has truly made waves around
the common law world."