England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARLISLE DISTRICT REGISTRY

		Royal Courts of Justice Strand London WC2
		8 October 1992

Thursday, 8 October 1992

LORD JUSTICE BALCOMBE:

I will ask Lord Justice Steyn to give the first judgment.

LORD JUSTICE STEYN:

This is an appeal against part of a judgment given by Mr. Justice McCullough on 9th April 1991 in which he assessed damages for personal injuries sustained by the plaintiff as a result of an accident which took place on 12th June 1985. The appeal is directed to that part of the judgment in terms of which the judge awarded £25,000 in respect of future loss of wages, loss of pension benefits and damages for handicap in the labour market. Counsel's submission on behalf of the appellant is that this award was far too low. On the other side a contrary submission was made to us.

In order to give some perspective to the controversy it is necessary to sketch the background in so far as it is either common ground or incontrovertibly established. At the time of the accident the plaintiff was almost 22 years of age. She had taken a secretarial course after completing her schooling; she had obtained a shorthand-typing qualification, and she had worked for two firms as a secretary. However, she wanted very much to be a nurse; that was her chosen vocation, and by December 1984 she had obtained a nursing qualification. She thereafter worked as a state enrolled nurse at the Westmoreland County Hospital in Kendal. She was married on 31st May 1985. Her husband is a joiner who works for the South Lakeland District Council. They were in process of buying their own house, the monthly repayments on the mortgage being of the order of £280.

The accident happened on 12th June 1985. It took place at the hospital where she was working, and it was what is commonly described as a "lifting" accident. As a nurse she was engaged in the lifting of a patient when she sustained an injury to her lower back. It is clearly established that that injury made her back vulnerable and that is a condition which persists to this day and will endure in the future. The result was that in the succeeding years up to the trial she was off work for various periods. There is not complete certainty about the dates, but, relying on the plaintiff's calculation of special damages, it seems that she was off work from the day after the accident until 5th August 1985. She then went back to work at the hospital, although one can readily assume that the work she then did was of a light nature. In December 1985 she returned to hospital and underwent traction. Thereafter she was off work until early February 1986. She then returned to work at the hospital. Again one can fairly infer that the work she did at the hospital was of a rather light nature. In November 1987 she asked to be transferred to become a theatre assistant. That involved less arduous work than work in the wards and in addition it had the advantage that she obtained a higher grading.

Turning now to 1988, which in medical terms was an eventful year for the plaintiff. In March she had an appendix operation; and in August she sustained a whiplash injury which had some consequences for her in relation to hospitalistion and physiotherapy. Again there were periods off work. In the latter part of 1988 she became pregnant. In January 1989 she ceased work. On 11th May 1989 her first child was born. In the summer of 1989 she had something of a relapse, and it is only in that period that for the first time we find analgesics being prescribed for her. By November 1989 the plaintiff recognised that she was unable to work as a nurse. The reason for that was simply that she was not able to carry out the lifting duties that nurses commonly have to do in wards. On 14th November 1989 she resigned her employment. In December 1989 she obtained part-time work at the Redlands Residential Home. She undertook only light duties. This work involved something of the order of 20 hours part-time work a week. She performed that work until September 1990. Looking over the whole period, the judge found that she had been off work for something like 34 weeks during the period that I have described.

In September 1986 the plaintiff instituted the action, and it came to trial before Mr. Justice McCullough in early 1991. Shortly before the trial date liability was admitted. The course that was then followed was that the hearing on quantum was divided into two phases. The first phase was to deal with a medical issue. It related to the issue as to whether the vulnerability of the plaintiff's back at the date of the trial and for the future was due to the injury sustained in June 1985. Mr. Justice McCullough gave a judgment on that aspect which was wholly in favour of the plaintiff. That left the second phase to be considered, which was the actual assessment of the quantum of damages. The hearing of that took place on 26th and 27th March 1991. I pause here to say that at the date of the second hearing the plaintiff was again pregnant, and she gave birth to her second child on 28th May 1991.

At the hearing the principal witnesses were the plaintiff, Mr. Burton, an orthopaedic specialist called on behalf of the plaintiff, and a Mr. Campbell, an orthopaedic specialist called on behalf of the defendant. A number of other witnesses were also called, only one of whom I need to refer to specifically. Mr. Doyle, a trade union official, gave evidence about the opportunities of obtaining secretarial work and other part-time work in the area.

Having heard all the evidence and counsel's speeches, the judge reserved his judgment. He gave it on 9th April 1991 on his return from circuit. It is now necessary to turn to that judgment in a little detail. First, the judge found that nursing was the plaintiff's vocation and that but for the fact of her injury she would have been involved in nursing throughout her life or in a career related to nursing. Secondly, the judge dealt with the injury sustained by the plaintiff. He said:

"Since the accident the plaintiff has had varying amounts of backache or pain, sometimes extending into the buttock and down the left leg, severe enough at times to lead to four periods away from work, totalling some 34 weeks. She had one short spell as an in-patient. Almost continuously she has had to wear a lumbar support. She has had difficulty ironing, hoovering and carrying heavy shopping; she has had to give up her keep fit classes and her aerobics. Although she is left with a vulnerable back, her disability is not great; no osteo-arthritis will develop; no surgical intervention is anticipated. Overall the reports suggest that, provided she avoids lifting things which are heavy and prolonged flexion of the spine, the worst of her troubles should be over. But it should be remembered that handling Matthew appears to have brought on a recurrence of symptoms in 1989 and she must be liable to recurrences. To what extent these would mean that she had to take time away from work, assuming she is at work, one cannot say."

The third finding that I propose to refer to is contained in the following passage in the judgment:

"Whatever her future would have been in her chosen profession, the accident has deprived her of it; it is now clear that she ought not to try to return to the full work of a nurse. The residential home for the elderly has recently become registered as a nursing home, and it is not clear whether her part-time job will still be available for her when she wants to get back to work in the autumn, but, whether it is or not, the fact that she did it for nine months does not mean that she could work there full-time. The family budget requires that she earns more than she was getting there, and in practical terms this means that she will have to fall back on her second skill which is secretarial work – if she can get it."

Against the background of those findings of fact the judge summarised his views on the issue of future loss of earnings, pension benefits and loss of earning capacity as follows:

"I believe from what I have seen of her that, when she does obtain secretarial work, she will do it efficiently and give satisfaction to her employers. Her personality is such that I think she would be an asset in any office, and I see her as attractive to potential employers. But that it is going to be significantly harder for her to get such work than were she a nurse, I have no doubt. That this is so at the present time is established; I feel justified in finding that the same will probably be true over the whole of her working life. In any event it is likely to be harder to find a working environment which she finds congenial. It is reasonable to expect some recurrence of back trouble during the rest of the plaintiff's working life, and if she should lose a job through long absence with back trouble it may be difficult to get another. I must also take account of the possibility that she might be unable to get any suitable secretariual work and may, accordingly, have to seek part-time light nursing work of the kind which she was doing in the residential home. That, of course, would enable her to earn something but would leave a substantial shortfall in comparison with her earnings were she still able to be a full-time nurse."

The last aspect of the judgment which I need to refer to is the question of loss of pension benefits. In that regard the judge found that there is undoubtedly a prima facie loss. He took into account, however, the possibility of pension benefits if the plaintiff obtains a job as a secretary, but he readily accepted that she would be worse off. The judge said that he would take this into account in his award for future loss of earnings.

The judge awarded a sum of £11,000 in respect of pain, suffering, loss of amenity and loss of career. That part of the judgment is not under appeal, nor is there an appeal in respect of the loss of earnings to date, which was of the order of £3,000. It is unnecessary to mention one or two other small items. So there remains to considered the grounds of appeal advanced before us in relation to the part of the judgment which dealt with future loss of earnings, loss of earning capacity and loss of pension benefits.

It was submitted to us that what the judge ought to have approached this case by applying the conventional multiplicand/multiplier formula. In particular counsel argued that the judge ought to have accepted a multiplicand of the order of £7,800 and a multiplier of 15 (as the plaintiff contended) or a multiplier of 13 (as the defendants contended), or he should have taken a figure between them. Counsel said that had the judge approached the matter in that way it would have resulted in a prima facie loss of between £100,000 and £118,000. In addition, counsel said that in relation to pension loss the judge should have done an arithmetical calculation and that would have resulted in a figure of something of the order of £13,000. Counsel submitted that this approach should have been the starting point in the case. Counsel further argued that the burden of proof – and by that counsel apparently meant the legal burden of proof – then rested on the defendants, and he said that any heads of discount were for the defendants to establish. In my judgment the legal submission is wrong. The two principal issues that confronted the judge were: (a) What was the likely pattern of the plaintiff's future earnings had she not been injured? (b) What was the likely pattern for the plaintiff's future earnings given the fact she has now been injured? In respect of those issues the burden rested squarely on the plaintiff. Of course, issues of mitigation can arise in the assessment of damages in personal injury claims, such as an allegation that a plaintiff acted unreasonably in refusing to take a lesser job. That is not this case. The legal burden on the two main issues rested throughout on the plaintiff.

Counsel submitted that even if the legal burden did not rest on the defendants, nevertheless the judge should have taken as his starting point a multiplicand and multiplier basis. Counsel said that the judge should thereafter have applied what is put forward as a relatively moderate discount. Counsel submitted that the judge nowhere in his judgment referred to the issue of the conventional assessment by multiplicand and multiplier. That is right. On the other hand, the judge was most experienced in this field and, looking at his judgment, there can be no doubt at all that the issue whether a multiplicand/multiplier approach was appropriate was in the forefront of his mind. It is clear, in my judgment, that the judge took the view that the conventional measure was inappropriate. He had ample material to take that view. First, there was uncertainty as to what the plaintiff would have earned over the course of her working life if she had not been injured. It is not necessary to mention all the difficulties which confronted the plaintiff. One was the possibility that she might have more children. Another was the fact that she clearly would have liked to have done part-time work rather than full-time work. It is true that it was necessary for her to assist with the payment of the mortgage, but, as the judge pointed out, that particular figure would become less of a burden through the years. The second aspect was the uncertainty as to the likely future pattern of her earnings, and here the uncertainties were very great. Bearing in mind that the burden rested throughout on the plaintiff, it is in my judgment clear that on the materials before him the judge was entitled to conclude that the multiplicand/multiplier measure was not the correct one to adopt in this case.

Turning to the argument in relation to loss of pension benefits, the judge took that into account. He weighed against it the possibility of pension benefits associated with secretarial work. He did not regard it as a certainty, but he was weighing risks and possibilities. In my judgment there cannot be any criticism of the way in which he approached the pension aspect.

It was submitted to us that, although the judge expressly referred in his judgment to the vulnerability of the plaintiff in the labour market as a result of back trouble, nevertheless he overlooked it when he came to the assessment. That, with great respect to counsel, is an unrealistic proposition in this case. I have no doubt at all that the judge took that aspect fully into account in his assessment of damages.

It seems to me that the judge carefully assessed the prospects and the risks for the plaintiff. He had well in mind that it was his duty to look at the matter globally and to ask himself what was the present value of risk of future financial loss. He had in mind that there was no perfect arithmetical way of calculating compensation in such a case. Inevitably one is driven to the broad brush approach. The law is concerned with practical affairs and, as Lord Reid said in British Transport Commission v. Gourley [1956] AC 185 at page 212, very often one is driven to making a very rough estimate of the damages.

Looking at the picture that emerged from the evidence and the judge's careful and balanced findings of primary and secondary fact, I am of the view that the judge's estimate of the risk of loss of future earnings, pension benefits and the plaintiff's vulnerability in the market, are fairly reflected in his award. In my judgment there is no ground for interfering with his decision. Moreover, I go further. In my judgment on the evidence before him a higher award would not have been justified.

I would dismiss the appeal.

LORD JUSTICE HOFFMANN:

I agree.

LORD JUSTICE BALCOMBE:

The real issue on this appeal is whether the judge was wrong in not applying the conventional multiplicand/multiplier approach to the plaintiff's claim for loss of future earnings. If he had done so, it is said that, even applying discounts to the multiplicand of £7,889 for such matters as possible future earnings and the cost of the child care which would be required to enable the plaintiff to take up a job, the judge's figure was far too low.

For the reasons given by Lord Justice Steyn, with which I agree, there were far too many imponderables here for the judge to have been bound to take the conventional approach. Amongst such imponderables were the prospects of the plaintiff obtaining other employment, and it is to be recalled that her injuries, while rendering her unable to continue with a career in nursing, were not such as would have disabled her from taking up other work should that become available; the possible number of children which she might have, the possibility that she might not wish eventually (whatever she may have said at the hearing, and she is still a very young woman) to go on working; these are all reasons only it seems to me that the judge was fully entitled not to take the conventional multiplier/multiplicand approach and to decide the matter on the basis that he did.

I therefore agree that this appeal should be dismissed.