The decision in Swift earlier in the month significantly changes how this head of loss is assessed in catastrophic injury cases. In the ten days since the judgment was delivered, there have been (virtual) acres of technical commentary and various on-line briefings have been held, including two that we facilitated and including our spreadsheet (attached at the end of this blog) which performs the new calculation.
The purpose of this blog is therefore neither to provide an in-depth analysis of the decision nor to offer a ‘how to’ guide to the new approach – however, please don’t hesitate to get in touch with Andrew Hibbert or me if we can help with that – but rather to draw out core points, below, which have become a good deal clearer after considered reflection on the outcome.
The court’s decisions in January & February on applications for permission to appeal were published just before the Easter break. Only a few of the cases in which permission was granted touch on issues relevant to casualty insurance. The legal aspects of fatal accidents happening abroad, but pursued before the English courts, will once again be examined by the court, which has granted permission in the complicated case of Four Seasons v Brownlie.
Vaughan v Ministry of Defence (MoD), a decision of William Davis J in May this year, raised the thorny subject of on or off duty status of service personnel undertaking adventure training. The decision could cut across to other civilian and business settings, for example at team building away days, free time at conferences, etc. The recent decision may be contrasted with a previous Court of Appeal case, Radclyffe v MoD, which was pursued by the same claimant firm and the same leading counsel.