England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CIVIL DIVISION)
(From: Mr. Justice Kilner Brown - Manchester)

		Royal Courts of Justice
		10th June 1974

(Revised)

LORD JUSTICE EDMUND DAVIES: This is a plaintiff's appeal from the judgment of Mr. Justice Kilner Brown delivered on the 5th October of last year at the Courts of Justice at Manchester. He was dealing with a personal injuries claim, the only contested issue relating to the quantum of damages. He awarded the plaintiff £2,000 for such features of general damages as relate to pain and suffering, physical handicap, interference with amenities, and so on, and the sum of £300 to cover the possible loss of future earnings. Mr. Carman, for the plaintiff, who now appeals from that award on the ground that it was unreasonably low, has attacked both items, saying that the £2,000 was clearly too little and the £300 indeed derisory.

The accident which gave rise to the claim happened in May, 1971, when the plaintiff, Mrs. Smith, was 49 years of age. Since about 1966 she had been employed by the Manchester Corporation as a part-time domestic cleaner at their Eventide Home at The Dell, in Gorton. She did about 36 hours a week in that work. She was on the day of the accident carrying a tray in the Home when she slipped as the result of there being something on the floor which, as I have already indicated, the defendants accepted ought not to have been there and that its presence constituted negligence by their servants or agents. As a result of her slip, she fell and landed on her right elbow, the immediate consequence being a fracture of the head of the right radius, involving, unfortunately, the elbow joint itself.

By the time of the trial in 1973, the plaintiff was 51 years of age. She had shown that she was a good worker, having returned to work about two months after the accident, but later on found difficulty in doing her work. Taking the matter broadly, she was off work altogether for fourteen months (notwithstanding which no claim for special damages arises), and she underwent treatment for some thirteen months. The learned judge held that there was a degree of exaggeration, though doubtless unconscious, in the evidence which Mrs. Smith gave. Mr. Carman attacks those observations of the learned judge, on the ground that they were quite unwarranted and not substantiated by any one of the five agreed medical reports.

There was evidence before the learned judge that the Manchester Corporation (as one would expect) are good and considerate employers; and they gave an undertaking that, provided of course that Mrs. Smith continued to be conscientious and behaved herself, they would continue to employ her. For how long would she, in the ordinary way, have continued at work? Well, certainly until 60, but with a possibility of going on until 65.

I said that the immediate consequence of the accident was the fracture of the head of the right radius. But, most unhappily, owing to the strapping up of the arm for a long period, there developed impairment of the movement in the right shoulder which is described, in a phrase well known in these courts, as a "frozen shoulder".

The learned judge accepted that the plaintiff was at a very severe disability. That finding was entirely warranted by the medical reports, the first of these in point of date being that furnished by the defendants' orthopaedic surgeon, a Mr. Dransfield, on the 18th February, 1972, which would be just a few months short of a year after the accident. Mr. Dransfield said that at that time Mrs. Smith complained of intermittent pain from the right shoulder to the fingers, that she could not move her shoulder or elbow fully, and had difficulty in stretching and lifting. There was no deformity of the shoulder but, nevertheless, both shoulder and elbow showed marked limitation of movement, and they accounted for the pain which she was genuinely complaining of. Sideways lifting of the arm was limited by 100 , rotation by 40°, elbow flexion by 15°, extension by 70°, and forearm rotation was limited by 90°, so that she cannot turn the palm upwards. While the wrist and the hand movements were full, the grip was weak. In his "Opinion" at that time, he said:

"It is extremely unlikely that she will regain normal movements and function of the right upper limb, or become fit for her full normal work".

Her evidence was that when she did resume work the other members of the staff were considerate; they helped her out. There were a number of jobs which she could not do: for example, she could not do mopping up, she could not do jobs which required two hands, and she had to rely upon the consideration and co-operation of her friends to help her in such tasks as were beyond her.

The next report, that of Mr. Thompson for the plaintiff, was dated 2nd May, 1972. He then reported that the plaintiff had so far made an incomplete recovery; he thought further improvement was likely, but no treatment other than physiotherapy was called for. He reported that, "Having regard to the nature of her injury, her age, and the type of work at which she is normally employed, her absence from work and the further period during which she was doing only part of her normal work have, so far, not been excessive".

I turn to Mr. Dransfield's second report, of the 9th October, 1972, which is one to which Mr. Carman, understandably, attaches importance, in the course of which the surgeon said: "Shoulder movements have not improved at all, so that she cannot comb her hair, tie an apron, etc. and she gets pain at the limits of movement. Elbow flexion is limited by 10°, extension by 30°, forearm rotation by 45°, i.e. there has been improvement in the elbow. Wrist and hand movements remain full, the grip is now slightly weak". He went on to say:

"Her symptoms are genuine. She has resumed suitable light work, but is obviously appreciably handicapped in her right upper limb function, and in all aspects of her work, personal attention, etc."

He advised manipulation. He then continued in this way:

"Without further treat-ment her symptoms will continue, and she will have permanent marked limitation of shoulder movements, moderate of those of elbow and forearm, and intermittent pain, aching and stiffness of the limb. She will never become fit for her full normal work".

I move on to the second report of Mr. Thompson, of the 7th December,1972, in which he expressed the opinion that there had been some improvement since his last examination, but that her complaints were justified and that further significant improvement was unlikely, accordingly, it was to be expected that her present complaints, of being unable to straighten her right arm, of being unable to get her right arm up to do her hair, put curtains up or clean windows, and sc on, would persist indefinitely.

"She is fit to do the kind of work she is doing at the present time and is likely to remain so indefinitely. She would, however, be at a considerable disability in a competitive labour market in seeking an alternative job should she lose her present one. The restriction of movement in her shoulder and elbow will continue to give rise to some disability in her normal day-to-day tasks about the house and in her normal social activities. No further treatment of her injury is called for".

The last report was that of Mr. Thompson of the 4th May, 1973, when he expressed the view (which the learned judge accepted) that no treatment would do any good.

Those are, in summary form, the five reports. Mr. Carman accepts that the learned judge indicated, by the words he employed, that he was alive to all the relevant features of the case. That this lady had a nasty injury, that she has had pain, that it has cut down her capacity to do work, that she is interfered with in her domestic chores and in her general enjoyment of life in the ways already indicated, all these points were accepted by the learned judge. Nevertheless he did say that he had doubts about the degree of uselessness of the right arm which the plaintiff had claimed. He continued:

"It is inevitable that a lady in her position, until she gets her compensation, is a bit apt to be persuaded that it is worse than it is. My judgment of this lady is that if she has some compensation, which she will certainly get, if she really puts her mind to it in due course she could find that she can use her arm a good deal more than she feels now she can. I am not suggesting she is cutting it on. One has had so much experience of cases like this in which the person genuinely persuades himself, or herself, that they just cannot use their limb. It is remarkable how often, later on, when they just have to, they find that, although it is difficult for them, they can do it".

He showed his awareness of the full import of the medical reports by immediately adding,

"Accepting the medical evidence, as I must, and accepting my judgment of the lady, as I think I must, it is true that she is considerably disabled".

All that, says Mr. Carman, is unsubstantiated. But this learned and experienced judge had the advantage, denied to an appellate court of seeing and hearing the lady give evidence and of seeing her give certain demonstrations with her right arm. He also had this evidence; early in her examination in chief:

"(Mr. Clegg): I do not know whether your Lordship would like to feel the grip of the right hand at compared to the left".

Then (leading slightly, if he will allow me to say so),

"Has your grip been reduced because of the accident?"

to which Mrs. Smith replied,

"I have never been able to grip anything with it since the accident".

Well, that sounds an exaggeration, to my ears. The learned judge promptly asked her whether she could not hold a book, for example as she had when she took the oath. She then said she could do that; she could pick up ordinary utensils. Then she went on to say that she did mainly dusting and Hoovering and light jobs of that character.

I have considered the matter - as I am sure the learned judge did- as carefully as is within my power. I have sympathy with the Plaintiff in the nasty injury which she sustained and the permanent sequelae. But I do not find it possible to accept Mr. Carman's submission that the proper bracket for these injuries is between £2,750 and £3,500. He said that accordingly the award of £2,000 was so much out of the proper bracket as to call for interference. I am unable to accept the invitation to interfere. It may be that the award is on the low side, but I would not disturb it.

There remains the question of the £300 award for future financial loss. I have already said that the plaintiff is a part-time worker doing 36 hours a week. She was earning at the time of the trial £16.50 weekly. There was the undertaking by the Manchester Corporation to continue her services so far as they could properly do so; but one must be realistic and bear in mind the possibility that, despite their best endeavours, they may find themselves unable to retain her services, and that for a multiplicity of causes. It may be that she herself, for a variety of reasons, will find working at The Dell, Gorton, no longer congenial to her. The Dell, with its 40 residents, might be closed down, and the plaintiff might have to work elsewhere. She has heavy domestic responsibilities. She is a divorced lady who has to look after her mother, who is 79 years of age, and there lives in the house also a daughter of 26.

The plaintiff is, as Mr. Carman put it, anchored to this job. She cannot just walk out into the open labour market, with all its competition, and have anything like the same chance of fresh employment as she would have had before she sustained her injuries. That is brought out very clearly in the medical reports.

It is a most difficult task, in circumstances such as here exist, to look into the future and to try to see "through a glass, darkly", what are the risks of unemployment. There is an existing and permanent reduction in earning capacity, but, as there is no present or clearly foreseeable financial loss, we cannot adopt the multiplicand-multiplier method of assessment. We have to do the best we can. Mr, Carman makes, in my judgment, a telling point when he says that the plaintiff, earning £858 per annum, could, if she is fit enough, go on until she is 65 and, therefore, in that event would have a working life of some 14 years left to her, whereas the judge's award of £300 amounts to just about four months' wages. Mr. Carman accepts the difficulty of peering successfully into the future and that the burden of proof is upon his client. I am satisfied that we ought to accept his submission that the award of £300 calls for interference. To what extent? And how can one be sure that one is doing the just thing? - justice being called for, of course, for the defendants as well as for the plaintiff. It is an anxious and a difficult task. Performing it as best I can, I would be for allowing the appeal in relation only to the £300 award and increasing that sum to: £1,000. In the result, the plaintiff would recover, not the £2,300 awarded, but £3,000 in all.

I should, I think, add a postscript. The result of my judgment is that the plaintiff's award goes up (if my brethren agree with me) by £700. I have some doubt that I should have been a party to such an award five years ago. While certainly not being unmindful of the value of a further £700 to a litigant situated as this plaintiff is, I think that the general approach adopted over the years would have inclined me to say that to increase an award of £2,300 by no more than £700 of itself demonstrated that the award was not so manifestly erroneous as to call for interference. But since Jefford v. Gee (1970 2 Queen's Bench 130) the circumstances are entirely changed. Formerly, this Court held that there was no ground for directing juries to sub-divide their awards under specific heads of damage (see Watson v. Powles. 1968 1 Queen's Bench 596); and this Court held in Povey_ v. Jackson (1970 2 All England Reports 495) that, although the general damages there awarded were on the low side, the special damages were on the high side, so that each award would have required adjustment had it been the only head of claim, yet as the global sum awarded was fair and proper, the court ought not to interfere with it But, now that the assessment of general damages is required to be divided into damages for pain and suffering and loss of amenities, on the one hand, and future financial loss on the other, I think, for my part, that the two matters have to be considered quite separately. In the result, if the award under one head is clearly wrong, it should be interfered with, even though ultimately there may be no very substantial variation in the global award. To substitute £1,000 for £300 is, in my judgment, a substantial interference with the award for future financial loss, and I, for my part, do not feel that we should be hampered by the old approach from doing what the justice of the present case seems to require.

I would accordingly be for allowing this appeal, leaving the £2,000 award alone but increasing the award for future financial loss from £300 to £1,000, with the result that I should substitute for the £2,300 awarded the sum of £3,000.

LORD JUSTICE STAMP: I agree.

LORD JUSTICE SCARMAN: I agree.

When the judge stated his conclusion, he said that he was awarding (and now I quote his words) "a notional figure of £300 to compensate her" (i.e. the plaintiff) "for a possible loss of earning capacity". These words, in my judgment and with the very greatest respect, reflect an entirely wrong approach to the very important item of general damages, namely loss of future earnings and earning capacity. There is nothing notional about the damages awarded for this item of loss; and it is quite untrue to describe the loss of earning capacity as only a "possibility": it is in truth a fact with Rich this woman is going to have to live for the rest of her working life.

Loss of future earnings or future earning capacity is usually compounded of two elements. The first is when a victim of an accident finds that he or she can, as a result of the accident, no longer earn his or her pre-accident rate of earnings. In such a case there is an existing reduction in earning capacity which can be calculated as an annual sum. It is then perfectly possible to form a view as to the working life of the plaintiff and, taking the usual contingencies into account, to apply to that annual sum of loss of earnings a figure which is considered to be the appropriate number of years' purchase in order to reach a capital figure. Fortunately in this case there is no such loss sustained by the plaintiff because, notwithstanding her accident, she has continued with her employment at the same rate of pay and, as long as she is employed by the Manchester Corporation, is likely, if not certain, to continue at the rate of pay appropriate to her pre-accident grade of employment. That element of loss, therefore, does not arise in this case.

The second element in this type of loss is the weakening of the plaintiff's competitive position in the open labour market: that is to say, should the plaintiff lose her current employment, what are her chances of obtaining comparable employment in the open labour market? The evidence here is plain:- that, in the event (which one hopes will never materialise) of her losing her employment with the Manchester Corporation, she, with a stiff shoulder and a disabled right arm, is going to have to compete in the domestic labour market with women who are physically fully able. This represents a serious weakening of her competitive position in the one market into which she can go to obtain employment. It is for that reason that it is quite wrong to describe this weakness as a "possible" loss of earning capacity: it is an existing loss: she is already weakened to Rat extent, though fortunately she is protected for the time being against suffering any financial damage because she does not, at Present, have to go into the labour market.

It is clearly inappropriate, when assessing this element of loss to attempt to calculate any annual sum or to apply to any annual sum so many years' purchase. The court has to look at the weakness so to speak "in the round", take note of the various contingencies, and do its best to reach an assessment which will do -justice to the plaintiff. My Lord has already mentioned some of the factors which have to be taken into account. In this particular case there is the possibility of a change of management in the old people's home which might lead to a personality clash between the plaintiff and a new manageress. There is the possibility of a change of policy by the Corporation: it might decide to close down the home, or it might decide to move the home to some other area where it would be inconvenient or impossible for the plaintiff to go. These are risks which are present and which, if any of them materialise, mean that this lady may find herself on the competitive labour market with a greatly weakened position as the result of her accident. It is true that the evidence is that the Corporation intends — and let no one doubt that this intention is genuine and honourable — to continue to employ this lady: through their counsel they said so at the trial. But this declaration cannot affect Corporation policy, cannot govern the possibility of a future personality clash, or other changes arising from change of management. One can envisage all sorts of possibilities which could properly lead the Corporation to terminate this lady's employment without in any way dishonouring the declaration that they made in court.

Now, what do all these matters add up to? It seems to me that they amount in the end to this: that, notwithstanding the good intentions of the Corporation, and indeed the good intentions of the plaintiff, there is a real risk that, at some time between now and the end of her working life, the plaintiff will find herself having to compete, disabled as she is, in the open labour market. "A real risk" must mean that there is here something which calls for real - that is, genuine - compensation. Is a sum of £300 real or genuine compensation for such a risk? This is where judgment is called for. All I can say is that that sum — which, as my Lord has said, is the rough equivalent of four months of this lady's wages — is a derisory figure when set against the risk that I have sought to analyse. I think that this lady must have something which can be regarded as a substantial compensation for that real, though immeasurable, risk; and I would agree with my Lord that the appropriate sum, in all the circumstances of this case, is £1,000.

I also, therefore, would allow the appeal, substituting for the £300 figure £1,000, which means, at the end of the day, that the total damages which this lady is entitled to recover (plus interest) is £3,000.

(Appeal allowed with costs. Judgment below varied by substituting total award of damages of £3,000)