Swift v Carpenter [2020] EWCA Civ 1295 concerned Charlotte Swift, who lost a leg in a road traffic collision in 2013. She was awarded £4m damages by Mrs Justice Lambert the High Court but not the £900,000 the court found, as a fact, she needed to fund the capital costs of larger accommodation due to her injuries. The court was unable to make the award for accommodation as it was bound by Roberts v Johnstone [1989] QB 878.
Granting permission to appeal, Lambert J said: ‘There exists an, in my view, important point of principle which the Court of Appeal needs to resolve; that is, whether the Roberts v Johnstone formula remains consistent with the principle of full restitution. Even though the current discount rate may increase such as to produce some relatively modest damages in respect of the additional capital costs of accommodation in this case, the application of the formula produced anomalous results even when the discount rate was 2.5%.’
The Court of Appeal increased Swift’s damages to include £800,000 towards accommodation.
Grant Incles, partner at Leigh Day who represented Swift, said: ‘The decision itself is the best and most thorough examination of a problem that has vexed legal practitioners for decades.
‘From 1989 the method of calculation employed has resulted in a shortfall in the amount needed to purchase the required property to varying degrees so that claimants would have to “borrow” from other parts of their damages originally awarded to cover essential items of future needs, such as care, loss of earnings and equipment.’
Incles said courts have wrestled with the ‘need to provide the claimant with full compensation for her loss versus the dyed in the wool principle that a claimant must not be over-compensated. Property has traditionally increased in value over time so that providing the claimant with the full capital value of accommodation may, in theory, result in a windfall to the claimant’s estate at the time of their death.’
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