England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE GORDON RICE)

		Royal Courts of Justice Strand London WC2 Wednesday, 17th October 2001

Wednesday, 17th October 2001

1. LORD JUSTICE JUDGE: This is a renewed application for permission to appeal from a decision of His Honour Gordon Rice on 31st May this year at Southend County Court. The learned judge entered judgment for Lee Samuels in sum of £77,074.40. That was his assessment of the damages to compensate the claimant for personal injuries, loss and damage on a full liability basis following a road traffic accident on 15th November 1995. The award was divided in this way: pain, suffering and loss of amenity - £20,000; past loss and damage (including loss of earnings) - £45,917; future loss - £920; interest after taking account of payment into court - £10,237.40, as interest.
2. The grounds of appeal related, so far as the substantial amounts are concerned, to the award for future loss arising from disturbance to the claimant's employment prospects resulting in what he asserted was a very substantial loss of earnings over the rest of his working life. Permission to appeal Grounds 2, 3 and 4 was given by May LJ. Ground 1 related to loss of earnings for the period 24th July 1998 to 24th July 1999, which were assessed at £12,767. That is covered by Ground 1 of the notice of appeal, and effectively it is argued that the figure was wrong, and too low. The issue is of course critically bound up with the broad issue of loss of earning capacity. I do not use the words in the technical sense encapsulated in the Smith v Manchester Corporation line of authorities. When I first read the papers my preliminary view was that the argument involved a great deal of analysis about what in the result was not very much, because the judge's award was not significantly lower than the figure which was being put before him for consideration on behalf of the claimant.
3. In view of Mr Scott's submission this morning, I accept that he has a seriously arguable point about the absence of findings made by the judge in relation to increases in pay, overtime payments and changes in the tax regime, and that if those matters had properly been taken into account then the figure put forward in the paper contentions before the judge would have been established. In effect, though he did not say it, Mr Scott was underlining that the figures in that document were not a negotiating figure but a genuine pre-trial analysis of what the loss amounted to.
4. Grounds 5, 6 and 7 related to the judge's conclusions about the parts of the claim based on the claimant's inability, through injury, to carry out DIY activities in his home. If he had the means to pay he would now have to pay for what formerly he was able to provide for himself. On the evidence, it is plain that the claimant was an accomplished craftsman who did a great deal of DIY. The claim itself estimated a loss of £500 a year and suggested a future multiplier of 17 years. The defendant's defence was simply confined to the assertion that the claimant had fully recovered from the physical effects of the accident, and that his continuing physical symptoms were unrelated to the accident. Accordingly, it was said the item was not agreed.
5. During the course of the evidence (as Mr Scott tells me) the judge approached this issue by describing it roughly - and I am not suggesting I have received a quotation about this - as an effort to seek compensation for the claimant's inability to enjoy rewarding hobby. If so that was arguably wrong and may have coloured his entire approach to this issue. As it seems to me on the material before me the points raised under the DIY issue, Grounds 5, 6 and 7, are worthy of argument and further consideration by the court. They bear, indirectly at any rate, on the assessment for general damages which forms Ground 8 of the proposed appeal. If what the claimant lost was compensated for as the inability to enjoy a rewarding hobby and formed part of the assessment of general damages, then that reinforces the submission that the overall figure reached by the judge for general damages was too low.
6. I have read the material reports in the context of those areas of the claimant's evidence, and that of his wife, which were accepted by the judge. Mr Scott recognises the difficulties of persuading this court to increase an award of general damages based on an assessment by an experienced judge after seeing the claimant himself and making his own analysis of the practical consequences to his ordinary life of the injuries sustained in the accident. I make the same acknowledgment. But that having been said, and having looked at all the evidence, there is in my judgment a distinct possibility that this award may be held to be too low, and so much too low that this court should, unusually, exercise its judgment to disturb and increase it.
7. In these circumstances the renewed application for permission is allowed, and all eight grounds may be argued before the full court.
(Application allowed; no order for costs).