England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT
(MR RECORDER MACDONALD QC)

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 27 November 2001

1. LORD JUSTICE LAWS: Mr Justice Harrison will give the first judgment.
2. MR JUSTICE HARRISON: This is an appeal by the defendant from a decision of Mr Recorder Alastair McDonald QC, sitting at Newcastle upon Tyne County Court. In his final judgment, delivered on 2 February 2001, the recorder awarded damages to the claimant, which included a total amount of £163,523.77 for future loss of earnings. The issue on the appeal relates to the extent of the claimant's entitlement to damages for future loss of earnings.
3. The trial, which was limited to the assessment of damages (liability having been admitted), commenced in July 2000, but it was adjourned at a stage when the recorder decided that clarification was required from the parties' consultant orthopaedic surgeons about the degree of the claimant's back trouble prior to the accident. The consultants had not been present at the trial because permission had not been granted for oral expert medical evidence, so the recorder posed written questions for the consultants to answer. The hearing then resumed in August 2000 after which the recorder reserved judgment.
4. On 22 October 2000 he sent his signed judgment to the parties by post in which he awarded the claimant damages totalling £58,211.04, leaving the parties to agree interest and a pension calculation, the provision of those matters to be determined by the recorder by written submissions if they could not be agreed between the parties. That award of damages included the sum of £29,608 for future loss of earnings.
5. Objection was taken on behalf of the claimant to that award on the basis that the recorder had misunderstood the evidence. The recorder therefore agreed to hold a further hearing to hear submissions about that aspect of the matter. The recorder gave judgment on 2 February 2001 when he amended a number of paragraphs in his original judgment. He finally gave judgment for the claimant in a sum which included the amount of £163,523.77 for future loss of earnings. It is against that part of the assessment of damages that the claimant now appeals with the permission of Hale LJ.
6. The claimant is a teacher. On 23 December 1995 she was injured in a road traffic accident. She was 40 years old at the time of the accident and 46 years old at the time of trial. As a result of the accident, she suffered a strain injury to her lumbar spine. The issue on the hearing of the assessment of damages related, first, to the effect of her injury upon her career as a teacher, and possibly as a headteacher; secondly, to the extent to which her symptoms and disability were produced by the constitutional condition of her back which pre-dated the accident; and, thirdly, to the severity of her symptoms.
7. The joint report of the two consultant orthopaedic surgeons referred to the medical history of the claimant including two previous episodes of low back pain in 1992 and 1998. Subsequent to the accident, a CT scan carried out in July 1996, and an MRI scan carried out in January 1997, showed that the claimant had significant evidence of degenerative changes in the lumbar spine which would have pre-dated the accident.
8. During the hearing in July 2000 reference was made to the notes of Mr Bruce Evans with whom the claimant had had a consultation on 9 February 1996. The relevant part of those notes stated as follows:

"First attack of low back pain about 11 years ago after coughing a lot - since then has tended to have intermittent spells of pain lasting a few days to a couple of weeks - usually brought on by lifting/bending/gardening etc - didn't often come on spontaneously. Tended to get a bit more frequent in recent years but never really incapacitated her much."

9. In her evidence the claimant accepted that Dr Evans' note was correct and that she had not told the consultants about those episodes of back pain because she considered them to be normal. In his written questions following the adjournment of the hearing, the recorder quoted the note of Dr Bruce Evans and asked the two consultant orthopaedic surgeons whether, if those facts were true, it would alter their views, inter alia, as to any acceleration of symptoms from the claimant's underlying condition and, if so, how much the period of acceleration was altered.
10. Mr Gayner, the claimant's consultant orthopaedic surgeon, when dealing in writing with the question of the period of acceleration of the claimant's symptoms, simply referred to his previous report of 26 June 1998 as clarified in his letter of 8 January 1999. In his report of 26 June 1998 he had stated that he was of the opinion that it was unlikely that the claimant would have reached her state of symptoms and functional limitations for another nine to ten years from the date of the report.
11. Mr Birnie, the defendant's consultant orthopaedic surgeon, stated in a letter of 11 July 2000 that the facts contained in the written question would probably have accelerated the constitutional changes in the claimant's back by something like three years. On the resumed hearing Mr Birnie gave evidence that, on the basis of Dr Evans' notes, the period of acceleration of symptoms due to the accident would be reduced by three years; ie constant low back pain would have begun by 2002, a view with which Mr Gayner did not dissent. Mr Birnie said that the claimant would cease the job of headteacher in 2011.
12. In the joint report of the two consultant orthopaedic surgeons, following a joint examination in May 2000, they had previously stated that, in view of the disc degeneration in her spine, it was likely that, in the absence of the accident, the claimant would begin suffering constant low back trouble around 2005, but that if she progressed up the teaching ladder to become a headmistress and was able, to some extent, to pick and choose her duties, she would have probably have continued work until the retirement age of 60 in 2014. The same report had stated that she was then struggling significantly at work and appeared to be deteriorating slowly with the result that it would only be a matter of time before she was forced into taking retirement on health grounds which was liable to occur in three to four years.
13. The claimant is presently the deputy head of New Brancepeth Primary School. She took up that position on 1 January 1999 following an interview for the job in which Mrs Warburton, who is an educational inspector and adviser employed by the Durham County Council, was adviser to the interview panel. She spoke highly of the claimant who had started a course for the qualification for headship in September 1999 which Mrs Warburton thought the claimant would complete successfully by the end of December 2001.
14. Mrs Warburton described the claimant as being a very strong candidate for headship, in the top one third of candidates. In her statement she had referred to the claimant's intention to commence a headship in September 2003. She had said that, if the claimant began looking for that work during the academic work year 2002/2003, she felt confident she would obtain suitable employment by September 2003. In her evidence she said that she was aware that the claimant had some back problems when she applied for the post of deputy head but she was not aware of the extent of the problems as revealed by the evidence.
15. When she was asked by the recorder whether, having heard the evidence relating to the claimant's back problems she thought that the claimant would get a headship, Mrs Warburton replied that there was a small chance that she might but she did not think it was a strong possibility having heard what was said in evidence the previous day.
16. She could see no other position in the education system that would accommodate the claimant's disability. That part of Mrs Warburton's evidence related to the claimant's condition at trial.
17. In his judgment dated 22 October 2000, having rehearsed the submissions made by the parties, the recorder stated that the arguments were finely balanced but he concluded that the degenerative condition of the claimant's back was only moderate in nature. She was able to carry on her normal life, albeit with more pain, on occasions, than someone who had no pre-existing degenerative condition.
18. In dealing with the degree of acceleration of symptoms the recorder stated at paragraph 12 of his original judgment:

"At first, Mrs Gayner was of the view that the claimant would not have experienced the extent of back pain from which she suffered at the date of trial until some nine to ten years from the date of his report which was made on 26 June 1998. However, having been told of the notes of Dr Evans, he did not dissent from the view expressed by Mr Birnie that the year 2002 represents the date upon which the symptoms would have been the same as they were at the date of trial had the accident not occurred. In other words, it was his view that the period of acceleration of symptoms was one of seven years."

19. That was one of the passages in the judgment which was subsequently changed after the hearing in February 2001. The judge went on in paragraph 13 of the judgment to say that he considered that the appropriate degree of acceleration of symptoms was one of seven years. Having summarised the evidence of Mrs Warburton and the submissions of both sides relating to the degree of the claimant's disability and her future teaching prospects, the recorder stated in paragraph 20 of the judgment (which was another paragraph which was subsequently altered) that the real difficulty in the case was deciding in the first place whether the claimant was likely to be able to teach in 2003. Having regard to the medical evidence and to the claimant's own evidence, he concluded that she would finish teaching at the end of the academic year 2000/2001.
20. In paragraph 21 of the judgment, which was subsequently deleted, the recorder stated:

"...the reality is that the acceleration period of seven years represents the key to the assessment. That is because I accept the evidence that, after the passage of seven years, even if the accident had not occurred, the Claimant would have been in the state in which she was at the date of trial. Accepting as I do, her evidence that she is, in effect, almost at the end of her tether, she would have been in such a state in December 2002 in any event."

21. In paragraph 22 of the judgment, which was subsequently significantly altered, the recorder stated:

"I am satisfied from what I have heard that the Claimant would indeed have achieved her career goal of a head teacher's post in September 2003. However, even if the accident had not happened, she would not have reached that goal since, as I have found, she would have been driven out of teaching in 2002."

22. The recorder therefore arrived at a figure of £29,608 as being the appropriate figure for loss of future earnings.
23. Having, however, considered the further submissions at the hearing in February 2001, he acceded to the argument that he had confused the date upon which the symptoms of constant low back pain would have begun due to the claimant's constitutional condition, with the date upon which the claimant would have been unable to continue in employment due to such symptoms. He accepted the proposition that, as the claimant had been able to work as a teacher whilst suffering from the accident symptoms, a period of five years, she would have been able to continue working after 2002 had her symptoms not commenced until that time. As a result, by 2003 she would still have been in work and would have been able to take up the post of headteacher which would have continued until 2011. Accordingly, the recorder revised his award for future earnings from £29,608 to £163,523 to which had to be added a future pension loss of £30,991.
24. In revising the terms of paragraph 12 of the judgment of 22 October 2000, the recorder referred to the year 2002 as representing the date on which the symptoms of constant low back pain would have begun had the accident not occurred, rather than the date upon which the symptoms would have been the same as they were at the date of trial had the accident not taken place.
25. Paragraph 20 of the original judgment was altered so that after the first sentence it read:

"For the reasons I gave earlier today I am satisfied that if the low back pain had become constant in 2002 the claimant would have been able to struggle on as a class teacher until 2003. That is based upon her actual record of achievement, namely of being able to cope with constant low back pain from the date of the accident until the date of trial, a period well in excess of that between September 2001 and September 2003."

26. Paragraph 21 of the original judgment was deleted, as was paragraph 22 except for the first sentence in which the recorder had found that the claimant would have become a headteacher in September 2003. He was not prepared to hear further arguments on that finding which therefore stood.
27. Thereafter, the recorder went on to state his conclusion that, 2002 being the date for the onset of constant low back pain, he accepted Mr Birnie's evidence that the date for the claimant ceasing to be a headteacher would be 2011. The loss of earnings as a headteacher was therefore from 2003 until September 2011.
28. The recorder went on to conclude that this was an appropriate case for a multiplier/multiplicand approach, having distinguished the case from that of Blamire v South Cumbria Health Authority [1993] PIQR Q1 on which the defendant had relied for the proposition that it was, in reality, a lump sum case. He took into account the fact that there would have be an appropriate discount for the fact that the loss of headteacher salary would not begin until September 2003. He therefore concluded that, for the first period from July 2001 to July 2003, the claimant was entitled to the sum of £37,157.
29. For the second period from July 2003 to July 2011, the full multiplier would normally be 6.71. The recorder rejected a submission that the claimant had a residual earning capacity because he concluded, having regard to the evidence of Mrs Warburton, that a role in education would not have been available to the claimant. However, he accepted that there should be a discount of the multiplier to reflect the likelihood of having to give up her teaching career earlier than 2011. He concluded that there should be a deduction of two years, resulting in a multiplier of 4.71, and, using a multiplicand of a headteacher's pay, that resulted in a loss of earnings figure for that period of £126,366. It was accepted by counsel that the loss of pension amounted to £30,991. Thus it was that the recorder changed his assessment of loss of future earnings from £29,608 to £163,523.
30. It is contended on behalf of the appellant that the recorder got it right in his original judgment and that he got it wrong in his revised judgment. The main submission made by Mr Kramer, on behalf of the appellant, is that the recorder was wrong in valuing the claimant's future loss on the basis that she had a certainty of becoming a headteacher. He submits that it should be assessed on the basis of a loss of a chance, this being a situation which depended on the hypothetical action of a third party.
31. There is no dispute between the parties that this is a matter which ought to be assessed on the basis of the prospects of the claimant becoming a headteacher in 2003. Mr Kramer submits that, when the recorder came to the view expressed in paragraph 22 of his original judgment that it claimant would have become a headteacher by September 2003, that was a conclusion which did not take into account the claimant's back condition. That is plainly correct because in the same paragraph, the recorder went on to conclude that she would be driven out of a job by 2002. He submitted that, as a result of that conclusion, the recorder failed to consider what the position would have been if the claimant had been applying for a headteacher's job at a time which she was suffering from constant back pain, in particular what impact that would have had on the hypothetical actions of the board of appointment.
32. It seems to me that it is not realistic to suggest that the recorder was disregarding the effect of the claimant's back pain when considering, in his revised judgment, whether the claimant would obtain the position of headteacher by September 2003. Such evidence as there is would suggest to the contrary.
33. In his revised judgment at page 5 line 1 he said:

"It seems to me that the claimant would, in my finding, have achieved a headship role at a time at which she was suffering from constant low back pain which would inevitably, and as the evidence clearly demonstrates, progressively get worse, until an end stage was reached in 2011."

34. Although, therefore, that the recorder did, in my view, take into account the claimant's back condition when concluding that she would have obtained the post of headteacher in September 2003, he nevertheless approached it on the basis that it was a certainty that she would achieve that post. He did not assess the chance or prospects of her attaining that post which is, both parties now agree, the proper way in which the matter should be approached.
35. We have therefore heard submissions from Mr Kramer and Mr Morton as to the relevant factors which this court ought to take into account when assessing the chances of the claimant obtaining a post of headteacher in 2003. Mr Kramer points to a number of matters which he submits result in a conclusion that there was a 20 per cent chance of the claimant obtaining the headteacher's job. Mr Morton, on the other hand, has referred to a number of matters which he says show that there was a virtual 100 per cent certainty that she would have got the job.
36. Mr Kramer refers to the part of the recorder's revised judgment, to which I have already referred, when he stated that the claimant would have been able to "struggle on" until 2003. He referred us to Mr Gayner's report of 26 June 1998 and traced her progress since the accident up to June 1998 showing that she presents with a number of debilitating symptoms. He submits that that kind of history, as shown in Mr Gayner's report, would be replicated in the hypothetical world from 2002 onwards.
37. Mr Kramer also relied upon the evidence of Mrs Warburton, referred to by the recorder, that there was a small chance of the claimant obtaining a headship, albeit that that related to her condition at the time of trial. He also relied on the fact that the claimant was in the top one-third of candidates, which in itself show that there could not be 100 per cent guarantee of success.
38. Finally, he referred us to the claimant's evidence as showing the difficulties that she would have in coping as a headteacher, such as having physical difficulties in dealing with disruptive children and with matters dealt with by the caretaker and so on. Indeed, in her evidence he suggested that her job as a headteacher would be heavier and more onerous physically than was previously the case.
39. Mr Morton, on the other hand, relied on a number of factors in support of his contention that it was virtually certain that the claimant would get the job as headteacher. First, he submitted that she was a very strong candidate. Secondly, he submitted that she would have undergone constant back pain for only about nine months by the time that she would be presenting for a headship and that she would have believed herself, able at that time to cope with it, as history showed from her actual condition in 1995 onwards. Thirdly, he said, as indeed was clear from the evidence, that she had not manifested any physical failings in the classroom. Fourthly, she would be able to pick and choose her duties to some extent and would have a greater administrative role than hitherto. Next, and perhaps a particularly strong point, her back pain would not have presented a greater handicap in 2003 than it did in 1998 when she obtained the position as deputy head.
40. Although initially Mr Morton sought to rely on the board appointment's statutory duty not to discriminate against the claimant on account of her disability, it was not a point which, in the event, he strongly relied upon. Finally, Mr Morton made the point that Mrs Warburton would have sat on the board of appointment which would have considered the claimant's application to become a headteacher, and that her view, given in evidence, as to how she might have advised the panel would indicate that the claimant may have been successful. The final point made by Mr Morton was that the recorder had already reduced the multiplier by two years to reflect the fact that the claimant may not have stayed in her job as a headteacher until 2011.
41. Having considered all those matters, in my view the true assessment of the position lies somewhere between the two competing submissions in this case. It does seem that the claimant was a good quality teacher who was intent on seeking to achieve a headteacher's post. On the other hand, there are a number of matters arising from her back condition which militated against her chances.
42. Doing the best I can in assessing those competing considerations, I have come to the conclusion, for my part, that there would have been about a 60 per cent of her obtaining the position of headteacher in September 2003. The resulting figures for damages, based on such a 60 per cent chance, would have to be calculated by the parties.
43. LORD JUSTICE LAWS: I agree with my Lord's judgment and in particular with his assessment of a 60 per cent chance here that the claimant would have obtained a headship in 2003.

Order:

1. The judgment given by the recorder will be varied so there will be judgment for the claimant in the sum of £23,806.81

44. Costs below undisturbed.

3. Defendant's costs of appeal incurred up to 21 days after service of Part 36 offer (22 June).

4. Claimant's costs of appeal thereafter.