England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
(HIS HONOUR JUDGE GARETH EDWARD QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 4th December 2001

Tuesday, 4th December 2001

1. LORD JUSTICE KAY: This is an application for permission to appeal against a decision of His Honour Judge Gareth Edward QC, sitting in the Chester County Court, whereby he assessed damages for the claimant in respect of injuries suffered in a road traffic accident. The proposed appeal relates simply to two aspects of that assessment; those two aspects being interrelated. They are future loss of earnings and future loss of pension rights. The evidence revealed that the claimant was likely to suffer disc degeneration leading to cervical spondylosis, and the issue that then arose would be whether he would be capable of working to his normal retirement age.
2. The claimant was a doctor employed within the National Health Service. His contention was that he would, but for his accident, have worked until the age of 65. There was some evidence that doctors, generally speaking, retire earlier than the age of 65. The judge resolved that issue by accepting evidence that came from the claimant that he would indeed have gone on to 65, since that was his intention and, having regard to his nature, he was somebody who was likely to have wanted to work until that age.
3. The other element of the equation was whether he would or not have reached that retirement age after the accident. If not, the judge has to determine when he was likely to be forced into retirement.
4. The medical evidence came from a single witness, Dr Jeffreys, who gave evidence orally. He said fairly early in his evidence in answer to a question from the judge:

"well, it's very difficult, one has to say that it's rule of thumb, being a soothsayer for eighteen - twenty years ahead, and all one can do is take an overview based on, obviously, one's own experience and put that alongside the individual patient - client - and the particular type of injury, and also whether or not prior to the jury they had any previous problems with cervical spine, which Dr Magnay did not. It was on this basis, and also against the background that everybody, every member of the population, will indeed get wear and tear in their neck as well as other discs lower down and culminating in cervical spondylosis, where there is bone replacement of discs and, to some extent, other sort of tissues. That starts from 50, such that in the early fifties plain radiographs show that 60% of the population's got some evidence of that... So, based upon that, I, using my clincian's/surgeon's thumb, feel that he probably would need to retire in and around the age of 60, but there is no mathematical formula that you can apply, either in groups of people or certainly not to individuals."

5. That was taken up then by counsel for the claimant when he asked questions. He put the following question:

"And doing the best you can with your thumb, 60 is the age that you think that this injury...

A. Well, 60, early sixties, yes, in and around that date, because for me to indicate an absolute year would be ridiculous because, as we've already indicated... I don't have a mathematical formula."

6. He then went on after a question by the judge:

"In or around that time is all I can suggest, give or take one or two years. I mean that is the best a soothsayer can do."

7. He was then asked questions by Mr O'Toole on behalf of the defendant. He came back to the same subject and made it clear that it was no more than a chance that the claimant would retire at the age of 60. Having heard that evidence the judge concluded on a balance of probabilities that consequent upon the accident rather than retiring at 65 the claimant was likely to retire at the age of 60.
8. Those findings are at the very heart of the proposed appeal. First, Mr O'Toole argues that the proper approach to something as uncertain as this was a broad brush approach which would simply result in an appropriate lump sum figure being given for the loss of the chance of working from 60 to 65. With respect to that argument the approach of the judge, which was to reach a conclusion when the claimant was most likely to have to stop work having reached his conclusion that he would otherwise have gone on to 65, to then work out the difference between those dates and then to discount that period appropriately both for acceleration and for the chances involved in these matters being some 18 years away, was the standard approach to matters of this kind.
9. Mr O'Toole argues that the evidence from Dr Jeffreys was so uncertain that it did not call for the standard approach. With every respect I do not see any prospect of the Court of Appeal being persuaded that this evidence was unusually weak in this regard. Many doctors do not like the approach that the law requires of them of having to look years into the future and give a best estimate as to the consequences of an accident. That, however, is the approach of the court if it is possible to do it. Here, this doctor was saying that applying the test that law requires to be applied, the best that he could do, exercising his mathematical skill, was to say that this man would retire at the age of 60. He made it clear that it might be a year or two before or a year or two after and therefore there was a range; but his mid point was 60.
10. It seems to me in those circumstances that the Court of Appeal would be bound to conclude that the approach of the judge was the proper one to the problem that was raised, and that there were, here, subject to all the usual contingencies, five years loss of earnings to be allowed for. The judge allowed for that in this way. He first of all discounted the matter appropriately to allow for acceleration. No complaint is made about that. He then looked at the fact that within that 18-year period all sorts of other eventualities might have come about, and discounted the figure he would otherwise have arrived at by 20 per cent to allow for those uncertainties. It seems to me beyond argument that that is the proper approach and that the figure he used of a 20 per cent discount was not in any way capable of challenge on appeal. This was a case in which the judge was performing the standard exercise. He explained in detail exactly how he was arriving at his figures; and I am not in any way persuaded that there is any prospect that the Court of Appeal would interfere with his resulting conclusion.
11. For those reasons this application must fail.
(Application refused; no order for costs).