England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KINGSTON UPON HULL COUNTY COURT
(His Honour Judge Moore)

		Royal Courts of Justice Strand London WC2 Tuesday, 20th March 2001

1. LORD JUSTICE HENRY: I will ask Lady Justice Hale to give the first judgment.
2. LADY JUSTICE HALE: This is the defendant's renewed application for permission to appeal against an order of His Honour Judge Moore in the Kingston upon Hull County Court on 16th November 2000 assessing damages for personal injuries. On 6th January 1996 the claimant had been the front seat passenger in a car driven by the defendant. The car went out of control. A concrete pillar or a scaffolding pole came through the window into the passenger's compartment and it demolished the left side of the claimant's face. After a great deal of plastic surgery he ended up substantially disfigured, having difficulties in facing the world and having given up his previous career ambitions. Liability was not in issue.
3. Included in the award was £47,000 for pain, suffering and loss of amenity. The judge considered that any sex discrimination in the measure of damages for facial scarring did not apply to serious disfigurement such as this. I gave permission to appeal on the papers on 2nd February this year because a point of principle was involved.

Part of the loss of amenity award was to take account of the loss of a very serious hobby that the claimant had enjoyed. He was already highly skilled in the martial arts, having obtained a black belt in karate. He had been hoping to go to Japan for a year to gain further qualifications so that he could teach and possibly earn some money from that occupation. He had tried to get back to it and could still do part of it, but contact might be damaging to him and so he could not progress or fulfil his ambitions to teach. The judge rejected any claim for loss of income as too speculative, but it clearly was relevant to the total loss of amenity award.

4. The defendant also wishes to appeal - and that is today's application - against the future loss of earnings element in the award. This was £220,000, based on a multiplier of 22 and a multiplicand of £10,000. The argument is that the judge should not have used the multiplier/multiplicand approach, but should have made a single Smith v Manchester handicap in the labour market award.
5. The claimant was born in December 1974. He was aged 21 at the date of the accident. He had been in accountancy since he left school. He was a trainee with a division of BDO Stoy Hayward. He had already passed his ACCA exams and he was studying for a BTEC. The judge found that he was exceptional in his ability as a young accountant. He was aiming to be a partner by the age of 35, and he was justifiably looking forward to a comfortable lifestyle in his chosen career.
6. He went back to work three months after the accident and stayed for 17 months. His employers seemed happy to keep him. However, as a result of his feelings about his disfigurement, he felt that he was now confined to the back room. He was unable to go out on audits or to face clients and he would not, therefore, be able to make the sort of progress which he had hoped for in his chosen career. He wanted an environment where people would accept him for what he was. So he left; and the judge was satisfied that his decision to leave the accountancy firm was wholly reasonable.
7. He thereafter did some casual work and then went back to college with a view to training as a physiotherapist. But a similar problem then developed and he left that. In July 1999 he set up in partnership with a friend doing property improvements. He was doing the bookwork and the quotations, but not going out to help except on really heavy work. The judge found that this occupation was more vulnerable and insecure than accountancy. His actual net earnings in 1997 as a trainee accountant had been £6,500. His net earnings to trial from his new occupation had averaged £7,000 per annum.
8. The multiplier, should it be appropriate, was agreed at 22. The judge did his best in trying to arrive at a multiplicand. He was undoubtedly hampered by a lack of evidence and a lack of precise figures. He was clearly influenced by a general perception that successful accountants earn more, and more reliably, than jobbing builders, however successful. The claimant's computation had argued for over £383,000 over 22 years, based on net earnings of £11,200 once he had qualified in January 1998, rising to £15,000 by January 2001, and then eventually rising to £35,000 per annum. The judge concluded that the difference between what he was able to earn now and what he would have earned as an accountant was not very great, but that there would come a time when it would be very substantial indeed and, over the life time's working history, he put it at £10,000 net.
9. The defendant's argument against the multiplier/multiplicand approach was mainly on the basis that the future loss of earnings was too speculative, as was his future earning capacity. That argument relied very considerably on the defendant's lack of acceptance of the claimant's case that it was reasonable for him to have given up his employment as an accountant. Mr Ticciati today continues with the argument that, had the claimant found that he could not make a reasonable living in some alternative occupation, it would still be open to him to go back and qualify as an accountant.
10. But this was a situation in which the judge had seen and heard evidence from the claimant some years after the accident and had been able to form a clear impression of the effect upon him of his very substantial facial disfigurement. He had formed the view that the reasons the claimant had given in the circumstances for discontinuing that career were reasonable, and that is a finding which it is virtually impossible to challenge in this court. I note that Mr Ticciati relies on the report of Ms Alden, a consultant psychologist, which indicates that the claimant took a positive view of himself, believing that he would be able to cope over time, but delivers itself of the opinion that, although he would improve over time and would learn to cope, he would undoubtedly always be affected negatively by what had happened to him and would probably never get back to being the kind of person he had been before the accident or enjoying the kind of lifestyle he had in the past. That, to my mind, provides some support for the judge's view, based on his own observations of the claimant.
11. Mr Ticciati says that, even if he is wrong on that, the evidence was still too speculative for the judge to make a multiplier/multiplicand award. Only a slight adjustment to the figures that he took would have produced a completely different result.
12. The judge was indeed hampered by having no evidence to support the claimant's suggestion that his earnings would have risen to £35,000 per annum. But what he did have was the Professional Negligence Bar Association's survey of facts and figures, which we have been handed. (It is good to see the Professional Negligence Bar taking the lead of the Family Bar in producing sensible tables of useful documentation to take along to the Kingston upon Hull County Court.) Included in our bundle were the rates for full-time females on adult rates, which were clearly quite inappropriate, being much lower than the rates for adult males. The rates for adult males' average earnings in business and financial professions were some £675 gross per week (if we did not include those who were absent) and £624 per week for chartered and certified accountants. If one goes on and looks at the earnings for builders and building contractors, the comparable figure was £315 per week.
13. One is therefore driven to the conclusion that the judge was entitled to take the multiplier/multiplicand approach because there was clear evidence of a loss of earnings and a continuing loss of earnings. It was speculative and difficult for him to do, but, on the most objective basis that was available to him, the difference between the sort of earnings which the claimant could have looked forward to as a successful and ambitious accountant and those that he could now look forward to as a back-room boy in a small building firm was considerable. Simple arithmetic indicates that it would be difficult indeed to reach the conclusion that the £10,000 per annum net which he took over a lifetime's earnings was so out of line as to be capable of challenge in this court.
14. I would therefore refuse permission to appeal on this ground.

LORD JUSTICE HENRY: I agree. The judge was faced with a difficult task on vestigial discovery and very little hard evidence. But the loss of earnings figure that he arrived at was not plainly excessive, given the favourable view that he had formed of this man's pre-accident potential, and for that reason I, too, would refuse leave.

Order: application for permission to appeal dismissed.