Legal Watch: Personal Injury 29th July 2015 Issue: 072
Damages In Legal Watch: Personal Injury 33 we reported the first instance
decision in Willett v Ministry of Defence and we commented at
In this issue:
future loss of earnings was unusual in a number of respects.
• Damages
Appeal and is reported at (2015) EWCA Civ 773.
• Costs
the time that the judge’s approach to the claimant’s claim for Not surprisingly the case has now been before the Court of
• Civil procedure/expert evidence
The claimant/respondent was aged 30. He had been
employed by the appellant/ defendant as a Lance Corporal and suffered the injury in February 2009 when undertaking physical exercises in cold weather. He claimed that his
condition had been caused by the army’s failure to provide suitable footwear. Following treatment, he was found to be medically fit for deployment, but he left the army in October
2011. He immediately found new employment as a lorry driver. He maintained that he continued to suffer various symptoms
in cold weather. The judge accepted his evidence that he had difficulty in doing various household tasks and always
stayed inside in cold weather, limiting his ability to do various things such as play and engage with his children, undertake
gardening and DIY, swim and play rugby. He conceded that
he continued to go fishing and clay pigeon shooting all year round, but only in good weather.
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The claimant’s principal claim related to loss of future earning
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earnings before his injury. However, two experts agreed that
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capacity. His earnings as a lorry driver were the same as his
although he had an excellent driving qualification and a good CV, if he lost his present job he would be at a disadvantage
in finding new employment because of his injury. The judge
found that the claimant’s injury was minor and that he was ‘disabled’, as that term was defined in the explanatory notes to
the Ogden Tables, but only just. He determined the claimant’s future earning capacity by using the Ogden Tables A and B, suitably adjusted. He awarded damages for loss of future earning capacity of £99,062.04 and general damages for pain, suffering and loss of amenity of £12,500.
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The defendant appealed and submitted that (i) an award of
necessity, extremely wide and ‘disability’ covered a very
range for the claimant’s minor injury; (ii) he was not ‘disabled’
that spectrum and his disability affected his ability to pursue
£12,500 for general damages was outside the permissible within the definition in the Ogden Tables, but even if he was,
damages would have been more appropriately assessed using the Smith v Manchester method.
The Court of Appeal held that the award for general damages
might have been too high if the court had been proceeding
on the basis of a minor non-freezing cold injury. However, the judge had accepted the claimant’s evidence about the continuing effects of his injury and the interference with his
normal life. The instant court could not go behind the judge’s findings of fact concerning his continuing symptoms. The judge had properly carried out the exercise of identifying
where the claimant’s injuries fitted within the conventional framework for determining general damages. He had not moved outside the permissible bracket.
The explanatory notes to the Ogden Tables stated that a person was disabled if his condition substantially limited his ability to carry out normal day to day activities within the
meaning of the Equality Act 2010. However, the Secretary of State’s guidance notes on S6 (5) of the Act were of limited
assistance because they tended towards the extreme. It was appropriate to adopt the approach set out in Aderemi (2013). The claimant had no difficulty working as a lorry
driver and could go fishing and clay pigeon shooting all year round, provided the weather was good. However, the focus had to be on what he could not do as a result of his
injury. The judge had accepted that he could not undertake
DIY and gardening in cold weather; that he could not play rugby or swim regularly; and that he could not play with his
children outside when it was cold. In view of that, the judge had been entitled to reach the conclusion that the claimant’s injury had a substantial adverse effect on his ability to carry
out normal activities and that his condition qualified as a disability, even if only just.
There would be many instances where the use of Tables A to D would be a valuable aid to determining a claimant’s
loss of earning capacity. However, the instant case was not one of them. Some of the bands in the tables were, of 02
broad spectrum. The claimant was at the outer fringe of his chosen career much less than it affected his activities outside work. Because of that, there was no rational
basis for determining how the reduction factor should be adjusted. If the Ogden Tables A and B were applied without
any adjustment, the result would be a hopelessly unrealistic
award of about £200,000. The claimant was pursuing his chosen career as a lorry driver with virtually no hindrance from his disability and the judge had commented that he
was likely to be sought after by employers. In his case, determining an appropriate adjustment to the reduction factor was a matter of broad judgement which was no more
scientific than the broad brush judgement which the court made when carrying out a Smith v Manchester assessment.
The instant case was a classic example of a case where a conventional Smith v Manchester award was appropriate.
An appropriate award for future loss of earnings would be two years’ earnings, which amounted to £45,000 when rounded up slightly.
‘The instant case was a classic example of a case where a conventional Smith v Manchester award was appropriate’ Comment At the heart of this judgment is the Court of Appeal drawing a distinction between an award for loss of future earnings
and compensation for loss of earning capacity. This case fell into the second category and that made a Smith award appropriate. The appeal court also commented that such
an award would normally lie between the equivalent of six months’ earnings and two years’ earnings. Here the award was at the upper level.
Civil procedure/expert evidence The commercial case of Gilruth v Harding [Lawtel
whether the back defect would have been likely to have
a party may wish to challenge the views of a single joint
sold at that stage. The evidence of a chartered equine
whether permission should be sought to instruct an expert
between 2006 and 2009, was that the horse had always
23/07/2015] shows how important it is to consider whether
been discovered in September 2009 if the horse had been
expert. In such situations careful thought must be given to
physiotherapist, who had assessed and treated the horse
unilaterally.
exhibited full movement and there were no performance
In June 2006, the parties had made a four-year agreement that the claimant/respondent would train the defendant/
appellant’s horse and ride him in three-day eventing competitions. It was envisaged that the horse would thereby
increase in value from the £30,000 it was worth at the time of the agreement. If the defendant engaged another rider, the defendant would pay the claimant 25% of the horse’s
increase in value. The claimant had considerable success
with the horse in competition. However, in September 2009, the defendant informed her that she would no longer
be permitted to ride the horse, as he believed there was a
better prospect of it reaching the GB Olympic squad with another, higher profile member of the GB team.
The horse was taken from the claimant in October 2009. She issued proceedings seeking to enforce her entitlement
to 25% of the enhancement in its value. A single joint expert, who was a trader in eventing horses, was instructed to report
on the horse’s value in September 2009. The defendant requested that her initial report be disregarded, as he had
submitted further questions for her and a veterinary report which referred to a back defect in the horse which had come to light in March 2011.
The expert’s evidence was that it was a pre-requisite of a sale that a horse would undergo a full veterinary examination
including extensive x-rays, but that it was not common practice to x-ray a horse’s back. She considered that the
horse’s value in September 2009 was £200,000, but would
issues indicative of back pain. The defendant sought to rely on the vet’s report, but the judge found that it was
inadmissible since the defendant lacked permission to rely on it as expert opinion evidence and had not indicated that
he intended to rely on it at trial. The judge accepted the physiotherapist’s evidence that the horse had not exhibited
a back defect in September 2009 as evidence of fact. He
found that a putative purchaser would not have taken
the uncommon step of requiring back x-rays so that, in accordance with the expert’s valuation, the horse was worth £200,000 in September 2009, meaning that the respondent was entitled to damages of £42,500, representing 25% of the horse’s increase in value.
The defendant appealed and contended that the judge
should have taken account of the vet’s report on the horse’s back defect.
‘(The defendant’s) remedy would have been to apply to the court for permission to instruct another expert and adduce that evidence’
have been £150,000 if the back defect had come to light.
Dismissing the appeal, the Court of Appeal held that the
as a result of the horse’s back defect, it had no enhanced
verify the truth of its contents; the report was simply part of
At trial, the defendant sought to persuade the judge that,
expert had had sight of the vet’s report, but that did not
value. The judge rejected that argument, and considered
the body of material on which the expert had been asked to 03
reach an opinion. In any event, the report had not offered a view of the critical question as to whether a putative purchaser of the horse in September 2009 would have
required x-rays to extend to its back, and that could not
be fairly or safely inferred from the report either. Moreover, the vet was not competent to express such a view: he was
not a trader in horses, as the expert was; it was she who
had the relevant expertise on the procedures and conditions leading to a successful transaction. Whatever the horse’s subsequent history, the sole question for the judge was
whether the back defect would have been discovered in
September 2009. The judge had found that it would not, and awarded damages accordingly; that conclusion was wholly justified and unexceptional. The reality was that the defendant had simply not accepted the expert’s opinion
that, had the back defect been revealed in September 2009, it would have resulted in only a 25% reduction in price to
£150,000. His remedy would have been to apply to the court for permission to instruct another expert and adduce that evidence. That had not been done, and the defendant could not challenge the expert’s evidence now.
04
Costs The fast-tracked appeal in Coventry v Lawrence (2015)
The decision in MGN did not compel the conclusion that the
is based on a 5-2 majority will leave some dissatisfied.
1 Article1. The central issue in that case was whether the
UKSC 50 has now been heard but the fact that the decision The appellant residents lived near a motorsports stadium
run by the stadium operators. They claimed that the noise emanating from the track constituted a nuisance and
obtained an injunction and damages. The judge ordered
the stadium operators to pay 60% of the residents’ costs. Because the residents’ lawyers were acting under a
conditional fee agreement (CFA), there was a success fee
and an after the event (ATE) insurance premium in addition to the base costs. Pursuant to the costs regime introduced
by the Access to Justice Act 1999, the stadium operators
were liable for 60% of not only the base costs but also the success fee and the ATE premium.
The stadium operators submitted that requiring them to contribute to the success fee and ATE premium infringed
their rights under Article 6 and Protocol 1 Article 1 European Convention on Human Rights 1950. They submitted that
the decision in MGN Ltd v United Kingdom (2011) that the 1999 Act costs regime was incompatible with Article 10 of the Convention compelled the conclusion that it was also incompatible with Article 6 and Protocol 1 Article1.
The majority of the Supreme Court held that the 1999 Act regime sought to improve access to the courts for those
with meritorious claims and to impose the cost of all CFA litigation on unsuccessful respondents as a class. Pursuant
to CPR 44.4(2) (a), costs had to be proportionate to the
matters in issue. The two-stage approach to the assessment of costs prescribed in Lownds (2002) applied to base costs, success fees and ATE premiums. Thus, success fees and
ATE premiums would be recoverable as proportionate expenses if they had been necessarily incurred, even if
the amount was large in comparison with the amount of damages reasonably claimed.
1999 Act regime was incompatible with Article 6 or Protocol
regime struck a fair balance between the Article 10 right to freedom of expression and the Article 6 right of access
to court. The balancing of the Article 6 rights of appellants against those of respondents was a wholly different exercise.
‘The courts had to give considerable weight to informed legislative choices...’ The issue was whether the 1999 Act regime was disproportionate. The courts had to give considerable
weight to informed legislative choices, at least where the legislature was seeking to reconcile the competing interests
of different groups. Parliament had consulted widely before implementing the Act, and the drafters of the CPR and the Practice Direction were best placed to determine how to strike the appropriate balance. Costs awarded to
successful appellants who had the benefit of CFAs could be very high, and the 1999 Act regime had the potential
to place respondents under considerable pressure to settle. In a number of individual cases, the scheme might be said
to have interfered with a respondent’s right of access to
justice. However, a legislative or regulatory scheme could be compatible with the Convention even if it operated harshly in individual cases.
There was a powerful argument that the 1999 Act regime was compatible with the Convention because it was a
general measure that was justified by the need to widen access to justice to litigants following the withdrawal of legal
aid; had been implemented following wide consultation; and fell within the area of discretionary judgement of the
05
legislature and rule-makers. It was no answer to say that
other measures could have been taken which would have
operated less harshly on non-rich respondents. The potential unfairness of the regime on unsuccessful litigants was
mitigated by the fact that district judges and costs judges were astute to check any practices which might undermine the fairness of the regime. Moreover, respondents could also enter into CFAs and take out ATE insurance. In the absence of a widely accessible civil legal aid system it was
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to justice for all litigants. Indeed, the scheme introduced by
2012 to replace the 1999 Act regime itself curtailed access to the courts in some respects. Nor was the 1999 Act regime incompatible on the ground that the assessment of the
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successful party’s costs did not take account of the paying party’s financial circumstances. The financial position of the paying party had never been a relevant factor. Overall,
the 1999 Act regime was a rational and coherent scheme
for providing access to justice to those to whom it would
probably otherwise have been denied, and it was subject to safeguards.
It is interesting to read the views of one of the two dissenting judges, Lord Clarke:
‘I accept that the question is not whether the system was unfair or had flaws. It is whether it was a disproportionate way of achieving the legitimate aim. In my opinion, it plainly was
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because it did not treat all respondents in the same way but chose a particular class of respondents on whom to impose
liabilities far beyond the bounds of what was reasonable or proportionate’.
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