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Keoghs has previously reported on the case of JR v Sheffield Teaching Hospitals NHS Foundation Trust (click here, login required). This case discussed Roberts v Johnstone in the context of a negative discount rate and prompted an appeal by the claimant on that point. The claimant’s counsel now report that the parties have agreed a settlement on the accommodation issue for £800,000 - this being the cost of a potentially suitable property for the claimant less the cost of his likely pre-accident property.
The effect of the settlement is that Roberts v Johnstone remains and judges are bound to apply that approach, irrespective of the effect of a negative discount rate.
Whilst the claimant’s team are proclaiming this as a win, Lord Justice Jackson made it clear before approving the settlement that “There can be no dispute that this settlement is favourable to JR.”
The beauty of a settlement is that the parties can agree whatever they like. There is normally a quid pro quo and where a defendant may be more generous on one head of loss, they may do so in return for a bigger concession from the claimant on another.
Accommodation is a prime head of loss to achieve this, particularly in cases where the claimant will have a significantly reduced life expectancy. Each case turns on its own facts and the settlement in JR is no precedent for defendants agreeing to compensate accommodation claims at this level.
We are still in a state of flux, adjusting to the effects of a negative discount rate, but in the coming months the rate will revert to a positive one and will go some way to restoring the balance.
As part of the settlement the defendant also agreed to withdraw their appeal on the issue of lost years.
This leaves defendants with the uncertain position where a lost years claim may be successful in cases where the claimant was a child at the time of the accident, but an adult at time of settlement. As previously advised, defendants will need to highlight how speculative this head of loss is, and produce evidence to increase the reductions for ‘but for’ living expenses.
In conclusion, it remains to be seen whether “a proper solution to the accommodation conundrum” as per William Davis J, can be found. In the meantime, Roberts v Johnstone reigns.