QB-2019-000783 - [2025] EWHC 2002 (KB)

I find that:

The parties ask the court to determine seven discrete awards (a.-g.). They are considered in turn. I acknowledge and accept Mr Vincent’s submission that the assessment of awards is “in the hands of the court” and it may award Baremo points at variance to the submissions of the parties.

Temporary loss of quality of life

The parties agree that the award for this item depends on the court’s decision on the year of consolidation and the table of the applicable year.

I find that:

Permanent sequelae

The Baremo’s approach is to assess the seriousness of permanent injuries and award “points” for them. After that, where there are multiple injuries, there is an adjustment using the “Balthazar Formula” (Annex of the Royal Decree 8/2004). The final adjusted total is given an economic value linked to the age of the injured person. The value is found in Table 2A2.

Under this heading, the court considers sequelae under the following codes:

The rival cases under these heads are:

The parties agree that DHV’s damage falls within the “moderate” category under this code. The range is 21-50 points. The defendant maintains that the damage is at the very bottom of the range at 21 points with 2 further points for aggravation or destabilisation of other mental disorders under Code 01167. The claimant submits that this is the very top of the category and 50 points should be awarded. The claimant did not address Code 01167 separately, submitting that the cognitive issues fell entirely under Code 01136 rather than being divided.

It assists to set out the elements of the moderate category:

“a)

Memory disorders resulting in learning limitations and recall difficulties.

b)

Moderate emotional symptomatology: Episodes of habitual irritability before stressful situations or flattened affect with easy crying or almost daily apathy. Occasional episodes of euphoria or inappropriate expressions of joy with lack of control and impulses. Common sleep disturbances that affect the patient's daily activities.

c)

Cognitive disturbances observed by third parties in the patient's surroundings: memory and concentration disturbances. Self-referential ideas or occasional suspicions. Moderate difficulty to carry out work activities. Language disturbances are detected during speech: presence of circumstantial language.

d)

Significant reduction in social activity with gradual disappearance of interpersonal relations.

e)

Requires some supervision of some activities of daily living.”

Next, the court reviews the evidence and argument around each criterion detailed in (a)-(e) – each “item”, as counsel sometimes called them.

a)Memory. In the joint neuropsychologists’ statement, it is stated that:

“Dr Scott observed a range of ‘above’ and ‘high’ average scores for memory new learning ability and general non-verbal intellectual skills that suggest a good cognitive recovery and will represent a useful intellectual reservoir that he can draw on in the future. There was some relative weakness on auditory memory tasks when assessed by Professor Worthington but this had improved at Dr Scott’s examination and in any event this may have been a longstanding area of weaknesses given his previous ADHD diagnosis.”

It is certainly the case that the medical records document DHV’s self-reports about memory difficulties. However, there is no objective assessment of the level of his difficulty. During the trial, as noted by Dr Patron, DHV called out from the back of the court to correct his mother’s defective memory of certain details. Therefore, at best, his memory difficulties are uneven. I note that Dr Patron did not altogether dismiss his memory difficulties and awarded points for “relative weakness on auditory memory tasks” under Code 01167, as an aggravation or exacerbation of a previous condition.

b)Moderate emotional symptomology. There is no evidence of euphoria. As to DHV’s sleep patterns, while there is evidence from the claimant himself, that must be viewed in light of the evidence of Ms Makda:

“DHV said that he goes to bed anytime from 11 pm to 1 am and wakes up anytime from 8 am to 6 am. He said he takes a sleeping tablet.”

Ms Kirby states:

“DHV reports that his sleeping pattern has improved as it was very poor after the accident. He feels fatigued during the day but he doesn’t sleep during the day. He goes to bed from between 7pm to 11pm and is usually up around 7am.”

These are independent reports that reveal a consistent pattern. While there is occasionally some disruption of his sleep, it does not amount to the “sleep disturbances” envisaged by the Baremo that “affect the patient’s daily activities”. Recognising the independent evidence, Mr Vincent was realistic in submitting that there is the evidence in the care records contrary to what DHV says and it is “up to the court whether to accept it”. The independent evidence is from two carers. There is no reason to doubt it. However, there is evidence of DHV’s irritability, something evident during his evidence. Mr Vincent characterised this as the claimant having it “in spades” and manifesting in lack of control and impulsive outbursts. There is little doubt, to my mind, that this feature is something that DHV lives with, as evidenced by the stark change of character that his mother attests to, and about which she was not challenged.

c) Cognitive disturbances observed by third parties in the patient's surroundings et cetera including circumstantial language. As to concentration disturbances, it was very clear during the claimant’s evidence how he was unable to concentrate or focus. The court was told that “circumstantial language” amounts to talking in circles or going back on oneself. That was certainly evident during DHV’s testimony. I emphasise that at no stage did I detect that he was putting this on. Indeed, he became frustrated with himself that he lost his train of thought or drifted from the question or simply got lost within an answer. I also accept his mother’s evidence of the difficulties he has in his (“the patient’s”) surroundings on a day-to-day basis. She was not challenged about this. As to work activities, as will be made clear, the court has found that he has absolute loss of capacity in terms of future employment. I have no difficulty in concluding that he would find “moderate difficulty” in carrying out work activities. I have dealt with memory elsewhere.

d) Social activity/relationships. DHV has a group of half a dozen friends, on his mother’s evidence. He also told the court how he saw his friend XXX almost every day. However, I accept the evidence that his social life is very substantially diminished compared to before the accident when he had lots of friends and a very full social life. He was not challenged about this. He previously had a girlfriend that he shared a house with and that relationship has ended. That kind of intimacy and shared life seems a remote prospect presently with the difficulties DHV lives with.

e) Supervision. DHV requires supervision around finances and handling money.

I now draw this together to consider how a Spanish court would assess this code in terms of points. There is force in Mr Vincent’s submission that “this is the most important code.”

First, Dr Patron states that all the criteria must be met for the maximum award. It certainly does not say that in the Baremo. I can envisage a situation whereby several of the criteria were met and/or were severely present which would overall justify an award at the top of the range or even the maximum (if the overall picture fell short of promoting the case to the next level). In fairness, Dr Patron accepted that this was not a rule of law, just a practice he had experience of. I therefore accept the submission by the claimant that it is not necessary to satisfy every one of the criteria for a maximum award. Equally, within any criterion, I accept the corresponding submission that it is unnecessary to establish each element. Some of the items are, as Mr Vincent correctly submitted, “alternatives”.

Second, Dr Patron fixes the appropriate points as being “in the low arc” because, he observes, “the symptoms do not stop him carrying out essential activities of daily life and many personal development activities according to the revised reports.” While true, I accept the criticism of Dr Patron that these considerations are not listed within the Baremo.

Third, I place less weight on the claimant’s submission that there is “no evidence that an award of 50 points is rare, like a 10 in ice skating.” I am not assessing other cases. If DHV’s properly fulfils the criteria, then the court should find that the Spanish court would award the maximum.

Fourth, I find that while there is some interference with DHV’s memory, it is not serious or severe. While his sleep may occasionally be disrupted, there is not a sleeping disorder, nor is there clear evidence or sustained or regular interference with his daily activities. The claimant displayed, despite himself, circumstantial language and losses or lack of concentration during his testimony. There is no reason to believe that this does not occur in his daily life and his mother spoke about the effect all this has had on her son’s behaviour. There can be little argument but that he has at the very least moderate difficulty in carrying out work activities. While DHV is not friendless, his friendship circle has materially shrunk. He has lost many friends due to his behaviour and inability to function stably in social settings. This is entirely understandable, while obviously very painful to the claimant. He no longer lives with the girlfriend he had been in a relationship with since childhood. He requires supervision around money, and while that is significant, he does not need supervision around other daily activities. Therefore, the “some” stipulated in the Baremo is “one” daily activity requiring supervision.

I have carefully examined this code, agreeing it is “the most important code” in the claimant’s case. I reject the suggestion that DHV’s life circumstances only justify the very lowest points award under this code and category. That plainly does not reflect the evidence and I accept Mr Vincent’s submission that it is difficult to understand how Dr Patron placed the claimant “at the bottom of the bracket”. That said, I cannot find (which is to say I am not persuaded that a Spanish court would find) that DHV’s circumstances justify the maximum award under this code and category. Doing the best I can by examining and re-examining the totality of evidence, I judge that the Spanish court would make an award just above the middle of the range. I emphasise that I have reached this conclusion having reviewed all the expert evidence and having had the benefit, which has been particularly valuable here, of seeing the live evidence from Dr Dominguez, Dr Patron, WTX and DHV himself.

I find that:

As previously indicated, there is no audiometry testing, the minimum requirement. An alternative basis was proposed by the claimant in that there was damage to the temporal bone, frequently or usually correlating with loss of hearing. I accept Dr Patron’s response to this that the question is the impact of any injury on the hearing faculty. No loss of hearing has been properly evidenced or proved.

I find that:

The bracket runs from 7-10 points for loss of smell and taste. The defendant contends for 7 points; the claimant for 8. Plainly DHV has not lost his sense of smell and said in cross-examination that he accepted that he retained “some sense of smell”. However, he cannot distinguish between smells. That is a significant impairment to the faculty. As Dr Alder notes, the claimant also reported altered sense of taste, which is perhaps inevitable given the substantial interference with his sense of smell. The impairment here justifies more than the very bottom award in the category of 7 points. Overall, the claimant’s submission is accepted.

I find that:

Dr Dominguez originally awarded 5 points. However, he then stated he was “open to suggestion” about the level of award dependent on reports about DHV’s recovery. Dr Patron has recommended 1 point. In closing submissions, the claimant argues for 5 points, which is the maximum points award in the category. The consultant orthopaedic surgeons are Mr Martin Bircher and Mr Warwick Radford. In their Joint Statement, they agreed that the fracture to the scapula did not involve the shoulder joint. DHV had regained full range of movement in his left shoulder girdle. They then continued:

“3.3

... We agree any soft tissue injury to his left shoulder

girdle will not result in arthritis in in later life as a result of the index accident.

3.4

We agree DHV had a comminuted (multifragmentary) fracture of his right scapula which does not appear to have involved his shoulder joint. We agreed it was appropriate to his scapular fractures conservatively. We agree his right shoulder has regained a functional range of movement. DHV’ range of movement has improved from when he was seen by Mr Bircher to when he was seen by Mr Radford. We believe this difference is due to the timing of our respective examinations. We agree he is not at risk of developing arthritis in his right shoulder in later life.”

In cross-examination, Dr Dominguez had put to him that the award of 5 points was too high, given the lack of pain and the functional range of movement. He said he would “probably agree”. This was because the medical literature shows that necrosis is very painful and difficult to treat. There is no such degree of shoulder pain with DHV.

I find that 5 points is too high. However, this is not at the very bottom of the range. I find that:

The range under the Baremo for post-traumatic arthrosis and/or painful forearm-wrist is from 1-5 points. The defendant argues that the award should be 1 point; the claimant argues for 3.

The medical report of Mr Ragoowansi, a consultant hand surgeon, dated 26 February 2024 states that DHV only experiences pain in the right wrist when it is challenged with “heavy lifting/carrying”. It is comfortable when carrying out daily routines. This supports the consultant’s report dated 6 November 2023 that states that the pain is “at a lower level”. In evidence, Dr Patron pointed out how at times during DHV’s testimony he banged his right hand forcibly on the witness box. This is true. There did not appear to be a reaction to the action on the several occasions it occurred. DHV does experience some pain in the right wrist, but this is when the joint is challenged with more intensive activity. He experiences no pain when going about daily activity. The pain is at the lowest end of the scale. I accept the evidence of Dr Patron.

I find that:

The claimant concedes that no award is recoverable under this code for skin system – scars. This is because although initially Dr Dominguez awarded two points, Ms Astigarraga accepted that what is required is symptomatic scarring at the date of consolidation. As at January 2018, DHV had no unhealed scars. Therefore, Dr Patron’s opinion is accepted as being correct: DHV does not qualify. DHV had no unhealed scarring as at 25 January 2018.

I find that:

This code covers aggravation or destabilisation of other mental disorders and can be dealt with shortly. The range here is from 2 to 10 points. There is no allocation of points under this code by Dr Dominguez. Dr Patron awards 2 points for this based on the joint opinion of the neuropsychologists Dr Worthington and Dr Scott. They jointly state:

“DHV displays neurobehavioral problems consistent with a frontal lobe brain injury, which are likely to be an exacerbation of premorbid personality characteristics and his ADHD diagnosis.”

This seems a rational and evidence-based conclusion. It is clear why Dr Patron acted upon it, as does the court. I should add that I cannot place weight on the opinion of Ms Astigarraga. She is a lawyer, not a medical or medico-legal expert. Dr Patron is correct to award 2 points due to exacerbation.

I find that:

Putting all the awards together, I summarise the position as follows:

Cosmetic damage

The claimant submits that the damage is in the “important” (or “major”) category and 30 points should be awarded. The defendant submits that the proper categorisation is “moderate” with 10 points awarded.

First, it is important to be clear what article 102 provides:

“Article 102.

Degrees of aesthetic damage

1.

The measurement of aesthetic damage is made by assigning a range of scores to each of the grades, considering, in particular, the following factors:

a)

the degree of ordinary visibility of the injury,

b)

attraction to the gaze of others,

c)

the emotional reaction it provokes and

d)

the possibility that it may lead to a disruption of the interpersonal relationship of the injured party.

2.

The degrees of aesthetic damage, in order from highest to lowest, are as follows:

a)

“Importantisímmo”. Most important, corresponding to extremely serious aesthetic damage, such as that caused by major burns, major loss of substance and major alterations to facial or body morphology.

b)

“Muy importante”. Very important, which corresponds to a lesser aesthetic damage than the previous one, such as that caused by the amputation of two limbs or quadriplegia.

c)

“Importante”. Important, which corresponds to a lesser aesthetic damage than the previous one, such as that caused by the amputation of a limb or paraplegia.

d)

“Medio”. Medium, which corresponds to a lesser aesthetic damage than the previous one, such as that caused by the amputation of more than one finger or toe, significant lameness or particularly visible scars in the facial area or extensive scars in other areas of the body.

e)

“Moderado”. Moderate, which corresponds to lesser aesthetic damage than the previous one, such as visible scars in the facial area, scars in other areas of the body, amputation of a finger or toe, or mild lameness.

f)

“Ligero”. Slight, which corresponds to a lesser aesthetic damage than the previous one, such as that caused by small scars located outside the facial area.”

First, the court reviews the aesthetic damage. DHV has a visible alopecic (hairless) scar measuring 5x5 cm in the posterior area of the left side of the head and neck; erosive scars to left shoulder and scapular region; scars to the right shoulder (in a tattooed area); a scar on the distal area of right forearm; small scar on right pelvic area. Dr Patron told the court that the head and shoulder area of the claimant where there were areas of scarring amounted to 5 to 6 per cent of the skin surface. It would, using Dr Patron’s measurement approach, be 5 or 6 hands-area of scarring. It is for that reason he assesses DHV as 10 points, or mid-range in the moderate category.

Second, the example of important damage given is the amputation of a limb or paraplegia. To be reminded, paraplegia is total or partial paralysis of the lower half of the body. Judged by these comparators, DHV’s aesthetic damage does not fall within the important (major) category.

Third, there are various routes to qualifying as medium damage. DHV’s overall aesthetic damage is not equivalent to the loss of more than one finger or toe. The scarring to the head is to the posterior area of the left side of head and neck. The several further areas of scarring cannot be classified as “extensive”.

Fourth, as no party contends that the damage is “slight”, one arrives at the moderate category. I certainly cannot see how the award of 30 points advocated on behalf of the claimant is justified. However, given the number of areas of scarring, although they are not extensive in area, this damage is at the top of the moderate category. The award should be 13 points.

I find that:

Surgical procedures

DHV underwent three surgical procedures. He is entitled to compensation for them under article 140 of the Baremo for:

“the particular personal damage suffered by the injured for each surgical intervention to which he is submitted is compensated with an amount between the minimum and the maximum established in Table 3B, in view of the characteristics of the operation, complexity of the surgical technique and type of anaesthesia.”

Dr Patron classified the procedures on behalf of the defendant. Dr Dominguez did not do likewise for the claimant. Instead, the claimant relies on the opinion of Ms Astigarraga. There are two disputes between the parties (1) the proper classification of the nasal fracture; (2) which annual table applies.

On (1): Dr Patron classifies the nasal fracture as Group 1 (Code 923: simple fracture nasal bones, surgical treatment). Ms Astigarraga states it is Group 2, with a higher award. However, she accepted that this was a medical matter. There is no medical evidence advanced on behalf of the claimant on this question. I accept the evidence of Dr Patron. This is a Group 1 award.

On (2): Ms Astigarraga applies the table for 2024. Dr Patron (followed by Professor Carreras) states that the correct table is 2018. As previously decided, the 2018 table is the applicable one.

I find that:

Permanent loss of quality of life

There is a four-point scale for the assessment of permanent loss of quality of life: “very serious”, “serious”, “moderate” and “mild”. The dispute between the parties is whether the loss is “moderate” (defendant’s case) or “serious” (claimant’s). The definition of serious damage under the Baremo is as follows:

“Serious damage is that where the victim loses personal autonomy to perform some of the essential activities in the development of ordinary life or most of their specific activities of personal development. The moral damage derived from the loss of any possibility of carrying out a work or professional activity is considered serious damage.”

First, I have found that the loss of earning capacity is absolute. Therefore, the court concludes that DHV’s “possibility” of returning to or carrying out meaningful remunerative work has gone. This is one of the distinctions between the serious and moderate categories, as moderate includes the inability to carry out the work or professional activity at the time of accident. DHV’s inability extends beyond that and in remunerative work terms is absolute.

Second, using the definition provided by the Baremo, this is moral damage and “considered serious damage”. This does not surprise me. It was vividly clear to me having seen DHV just how devastating to his sense of self, in terms of respect and esteem, the loss of his ability to work has been. I find that for this previously successful small businessman, who had made a significant mark in his field by a relatively young age, this has been high order moral damage. It is fanciful to argue otherwise and ignores the weight of the evidence.

Third, it is not disputed that while DHV is able to perform many other essential activities, he is not able to attend to his finances without support or supervision. This is not a small matter, and while on its own it would not be sufficient to make a finding under this head, when combined with the absolute loss of earning capacity, the damage is serious.

Fourth, it is notable that the claim is not for the highest category of “very serious” damage, but “serious”. This is the correct classification.

Fifth, Ms Astigarraga uses the 2024 table. The defendant contends that the 2018 table should be used. For reasons previously given, the 2018 table is correct. The range is €40,741.60 - €101,854.

I find that:

Pre-consolidation pecuniary losses

Pre-consolidation gratuitous care has been conceded by Ms Astigarraga as not recoverable.

Pre-consolidation case management, temporary treatment, TRU rehabilitation. The defendant accepts that these expenses are recoverable in principle. The court has found that the consolidation date is 25 January 2018. None of the above expenses were incurred before this date, so none is recoverable.

Miscellaneous expenses. The claim for the cost of flights in the sum of £570 is agreed between the parties. As to subsistence, Ms Astigarraga agrees that the expenses must be evidenced. They are not. She agrees, therefore, that they cannot on the evidence be recovered.

I find that:

Post-consolidation pecuniary losses

There are three potential post-consolidation pecuniary losses (1) future rehabilitation: (2) future third party assistance; (3) future loss of earnings.

The parties agree that this is not recoverable under the Baremo by DHV.

The Baremo provides for third party assistance under article 121, as set out previously. Two routes lie to an award: impairment of a sequela equal to or greater than 50 points or because such third party assistance is necessary because the personal autonomy of the injured person is “particularly affected” and analogous to the loss of personal autonomy under Table 2.C.2. It bears repeating article 121(2) on this point:

“2.

In the cases not foreseen in the table, this aid may only be compensated if a loss of personal autonomy analogous to that produced by the sequelae foreseen in the table is accredited by medical expert evidence.”

The claimant submits that he qualifies under both routes. First, the award under Code 001136 should be 50 points for the cognitive (et cetera) impairment. Second, and in any event, his personal autonomy has been particularly affected qualifying him under the second route. The claimant accepts that this is a question that the medico-legal experts “have not addressed” but maintains that nevertheless “there is ample medical evidence before the court that he needs the care”. If the court agrees, the limits within the Baremo should be disapplied due to the article 33 full reparation principle.

The defendant’s position is that no award should be made for future third party assistance. There is no sequela amounting to at least 50 points. DHV’s personal autonomy has not been “particularly” or sufficiently affected. However, if the care/autonomy threshold is met, the award should be strictly limited to what is permissible under the Baremo. This is because the defendant should prevail on its article 33/recital 33 argument (Issues 9 and 11). Thus, the daily hours of care are limited to two hours per day under Table 2C2. The hourly cost of care is limited by article 125.

The court has found in its decision on permanent sequelae that under Code 01136 cognitive disorder and neuropsychological impairment, even with the 01167 additional “aggravation” points, the qualifying condition of 50 points is not met. This route to the award fails.

Next, I consider autonomy. DHV’s personal autonomy has sustained impairment. His finances require supervision. As Mr Vincent powerfully submits, “just look at his life today”. There has unquestionably been a real and measurable impairment of DHV’s personal autonomy. However, the key point is that while there may be observable impairment to personal autonomy, the level of autonomy loss must be analogous to that produced by the sequelae in the table. That is analogous to amputation. It is a matter of considerable significance that an adult who ran his own business and employed staff now needs his finances supervised. While the totality of evidence reveals that DHV has by no means become totally dependent on other people, he does require third party support due to his personal autonomy being impaired. However, the specific terms of article 121 make plain the level of loss of autonomy required for an award under this head. The claimant’s autonomy loss does not equate or amount to a loss analogous to amputation. Therefore, the loss of autonomy in the claimant’s case is not sufficiently analogous to the Table 2.C.2 sequelae.

I find that:

The parties agree that loss of future earnings is recoverable under article 126:

“Article 126.

Concept of loss of earnings

In cases of sequelae, loss of earnings consists of the loss of earning capacity from personal work and, in particular, the loss suffered by the injured party due to the net loss or reduction of income from his or her work.”

The dispute is about whether DHV’s work disability is “absolute” or “total”. Absolute entails a complete inability to work for remuneration in future. The defendant relies on the evidence of Professor Trimble that in future the claimant “should be able to work at some point in the future”. The claimant submits that the balance of the medical evidence indicates that the claimant will not work remuneratively in future.

First, the claimant must prove this matter to the civil standard.

Second, I have carefully reviewed the joint psychiatry statement. At para 8.2, it states:

“The experts agree that the Claimant is unlikely to be able to undertake any meaningful remunerative work at present. Dr Agrawal considers this is likely to be the situation for the rest of his life given the nature of his neuropsychiatric condition which is likely to persist for the rest of his life. The experts agree the Claimant should be provided with appropriate voluntary/vocational and leisure activities with vocational rehabilitative input to improve the structure of his daily routine and improve his quality-of-life. Prof. Trimble suggests that with such provision the Claimant should be able to return to part time work, at least initially voluntarily and at some point in the future with remuneration.”

Therefore, the starting-point is that DHV is unable to undertake any meaningful remunerative work at present.

Third, I am bound to observe having had DHV in front of me in the witness box for an extended period, and present at the back of the court for many days, that this is far from a surprising conclusion. What was particularly noticeable was that his outbursts and lack of control in court occurred despite himself, when he was attempting to be restrained and participate. The cognitive and neuropsychological/psychiatric damage that has been done to him was very evident and manifests in his public presentation.

Fourth, when Dr Patron was asked about future remunerative work, he suggested that DHV could work in the army. It was an implausible and misconceived suggestion. I found it unhelpful. It revealed an unrealistic approach to DHV’s obvious and significant social functioning difficulties. While it is true that DHV worked for four years following the consolidation date, it is vital to bear in mind that he was unable to continue and his business had to close.

Fifth, it is plain that DHV has had his ability to conduct social relationships materially damaged. While he sees his friend [XXX] almost every day, I accept DHV’s evidence that he has lost most of his friends. This is aside from a small group of loyal stalwarts (whom his mother described as “half a dozen good friends”), he has found himself largely socially isolated. This is substantially due to his behaviour and inability to relate to people. The joint opinion that he cannot work remuneratively at present must be in significant measure connected to his inability to liaise appropriately, let alone courteously, with other people including customers, other employees and people in authority. I find that Dr Patron’s suggestion that he could work alone “as a gardener” fails to allow for the fact that he would have to liaise with customers, suppliers, respond to suggestions about his work, make alterations, deal with criticisms. It is unrealistic to expect that DHV can achieve this in a satisfactory or sustainable way.

Sixth, it seems to me entirely speculative to predict reliably when this can change. There is a material distinction between remunerative work – this is about loss of earnings – and DHV beginning to be introduced to voluntary rehabilitative activities. I accept Dr Dominguez’s evidence that they are closer to interventions or “treatments”. There is no evidence before me about the effectiveness of such interventions in DHV’s particular case. These have not been tested. To project forward years in the absence of empirical foundation is speculative. It is for that reason that the most Professor Trimble can offer is the comment that with the correct provision, DHV “should” be able to work remuneratively “at some point in the future”. He does not say at what point this is likely. He does not clarify whether it is before or after retirement age. On this there is no evidence.

Seventh, I accept and prefer Dr Agrawal’s evidence that this is likely to be the prevailing situation for the rest of DHV’s life. I find that this opinion accords with the rest of the evidence, save for the conjectural comment by Professor Trimble, and is entirely consistent with how the claimant presented at court despite himself. At no point did I sense that DHV was putting on an act. In fact, the reverse was true: he was deeply upset and disheartened that he could not control himself, despite his efforts.

Eighth, I find that the claimant has proved on a balance of probabilities that DHV is unlikely to undertake any meaningful remunerative work for the rest of his working life.

Ninth, that being so, the court must examine the quantifications of the relevant award. There is dispute between the actuaries about this. It is agreed between the parties that relevant benefits must be allowed for. I prefer the analysis of Mr Peraita on this question. The sum he arrived at is £408,348.05. That is the right sum.

I find that:

I should add that the parties agree that there should be an award for the temporary loss of quality of life under the 2018 Baremo tables in the sum of €10,998.75.

The parties also agree that pre-consolidation loss of earnings are recoverable. With the date of consolidation of 25 January 2018, the number of qualifying days is 189. The claimant’s pre-accident net income was agreed at trial as £35,714 per year. Therefore, the figure for 189 days is £18,493.

Following the circulation of the draft judgment, the parties communicated to the court their agreement about the following matters:

This leaves only the figure for Permanent Loss of Quality of Life. The parties helpfully provided further submissions to assist the court to assess the appropriate level of award.

The Court has found that the Claimant’s permanent loss of quality of life falls within the “serious” category provided for in the Baremo. By reference to the 2018 tables, the range of compensation provided for this category is €40,741.60 - €101,854. The parties dispute where in the range the claimant’s case should be placed. In short, the claimant submits that the award should be €100,000; the defendant €65,000. The relevant provisions of the Baremo are now set out. The Baremo defines “serious damage” as:

“Serious damage is that where the victim loses personal autonomy to perform some of the essential activities in the development of ordinary life or most of their specific activities of personal development. The moral damage derived from the loss of any possibility of carrying out a work or professional activity is considered serious damage.”

Article 107 defines “Moral damages for loss of quality of life caused by sequelae”:

“Compensation for loss of quality of life is intended to compensate for the particular moral damage suffered by the victim as a result of sequelae that prevent or limit his or her personal autonomy to carry out essential activities in the development of daily living or his or her personal development through specific activities.”

“Essential activities” are defined in Article 51: “Essential activities of daily living”:

“For the purposes of this Law, essential activities of daily living are defined as eating, drinking, grooming, dressing, sitting, getting up and going to bed, controlling sphincters, moving around, performing household chores, operating devices, making [decisions] and perform[ing] other similar activities related to physical, intellectual, sensory or organic self-sufficiency.”

“Personal development” is a defined term in Article 53: “Loss of personal development”:

“For the purposes of this Act, loss of personal development is understood to be the physical, intellectual, sensory or organic impairment that prevents or limits the performance of specific personal development activities.”

Article 54 defines “Specific personal development activities”:

“For the purposes of this Law, personal development activities are understood to be activities such as those related to enjoyment or pleasure, relationship life, sexual activity, leisure and sports, the development of training and the performance of a profession or job, which are aimed at the fulfilment of the person as an individual and as a member of society.”

The valuation of this award in money terms is to be based on the approach mandated by Article 109: “Measurement of loss of quality of life injury.”

“1.

Each of the degrees of damage is quantified by means of a compensation range that establishes a minimum and a maximum expressed in euros.

2.

The parameters for the determination of the amount of damages are the importance and number of activities affected and the age of the injured person which expresses the foreseeable duration of the damage.

3.

The maximum of the range for each degree of harm is higher than the minimum assigned to the harm of the preceding highest degree of severity.”

I turn to the rival submissions. The claimant recognises that he has not sustained the same kind of physical injury and associated limitations as a person with severe spinal injuries. While the claimant envisages an award at the top of the range for such an injured person, he submits that the cumulative effects (damage) he has sustained justify an award similarly at the very top. This is because “his brain injury seriously limits his ability to engage in relationships, social activity, remunerative and satisfying work, and family life.”

The defendant submits that the “only” essential activity identified was “managing finances without supervision”. While the effect on earning capacity and relationship life is important, the number of activities affected is neither high nor “most of” in Baremo terms. It is acknowledged that the foreseeable duration of the damage to his activities is “relatively long”. The defendant examines each parameter to gauge where in the range it suggests the award should be placed. Since only one essential activity (attending to finances) has been “lost” (seriously impaired), that indicates “the bottom of the range”; the specific personal autonomy activities lost indicates the “middle” of the range; the claimant’s age also indicates the middle of the range.

The court now provides its conclusion. The claimant sustained the injuries at the age of 29. He will live with the impact of the injuries for the rest of his life in differing ways. I regard this as an aggravating feature under article 109. While it is a valid approach to examine each parameter discretely as the defendant does, one must also stand back to view the overall impact on the claimant’s life and the interaction between different manifestations of the injuries. Overall, the “moral damage” sustained by the claimant unquestionably qualifies as “serious damage” in Baremo terms. I bear in mind that there is no realistic possibility of his being able to carry out remunerative work or professional activity and have found that there has been an “absolute” loss. The court has made findings about the interaction between that loss of working capacity and the adverse impact on his sense of self and identity and undoubtedly this also impacts his ability to make and sustain meaningful relationships and the quality and conduct of his social life and personal relationships. I accept his mother’s evidence about the dramatic impact on her son as a person whose life has been transformed for the worse. I judge the impacts on the claimant to be serious and sustained. It was impossible to listen to his evidence without being struck by the depth and degree of the deleterious impact on him. This is a particularly “important’ loss to the claimant in article 109 terms. These are personal development activities relevant to article 54. The defendant has not sufficiently allowed for these complicated interlocking impacts. There is also the agreed loss of ability to attend to his finances without supervision, an essential activity for article 51 purposes. While it may not have the florid and observable physical manifestations of other qualifying activities, it is something we take for granted and is an activity with daily relevance. However, I cannot think that the claimant’s life situation where, for example, he does see friends, although more limited in number, and is able to perform most of life’s daily activities without supervision merits an award at very nearly the maximum amount.

Further, I am not persuaded that there is a route via these articles to make an award for third-party assistance that the other articles of the Baremo prevent recovery of. The key is how a Spanish court would judge this matter. I am clear that the Spanish court would be faithful to the terms of the articles and construe them as providing the basis for an award for the “particular moral damage suffered to the victim” in article 107 terms. There is no explicit provision here, nor any formulation indicated within these particular articles, to compensate for third party assistance and what amounts to consequential loss.

Overall, while the defendant has underestimated the level of award, the claimant has placed it too high. The award range varies by €61,112.40 from bottom to top. I judge that all the impacts together place the claimant at a 75 per cent position within this range. That is an award of €45,841.80 above the lowest limit. The final figure is €86,583.40.

The court will hear further submissions on outstanding consequential matters, including penalty interest under Spanish law (Issue 14), before the final order will be settled. The dispute between the parties on penalty interest will be the subject of a separate judgment.