England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE BUTTER QC)

		Royal Courts of Justice Strand London WC2 Wednesday, 6th June 2001

Wednesday, 6th June 2001

1. LORD JUSTICE SCHIEMANN: Before the court is an application for permission to appeal a judgment of His Honour Judge Butter delivered earlier this year. The judge refused permission and so did Latham LJ on paper. Mr Gallagher appears for the claimant in this matter which is concerned purely with damages. The claimant was a senior occupational therapist in the defendant's hospital in Brighton and she sustained an accident when attempting to open a window. Liability was not in dispute and what we are concerned with is what damages should have been awarded in relation to her loss of prospects of earnings as a piano teacher which was always something which was a sideline in her possible future development.
2. The judge says that in 1987 the claimant passed Grade 8 piano with the Associated Board of the Royal School of Music. Her marks were in no way exceptional. She obtained 110 out of 150. The evidence was that you passed with a mark of 100; 120 represented a pass with merit and 130 a pass with distinction.
3. She left school in the summer of 1988 and she then, in the course of some voluntary work with handicapped children, did a certain amount of teaching at the piano, I think without reward. She was clearly a person of ability and she acquired a Bachelor of Science degree in occupational therapy in 1992, and worked until December 1995 as an occupational therapist in mental health, apart from a period between June 1993 and August 1994 when she was travelling overseas.
4. The judge says (and the evidence supports this) that it is clear that for many years the claimant did relatively little playing of the piano and when she did so it was mainly at those weekends when she went home. The position was this. For seven years she was not living in a house which had a piano. She was going through college. She spent 14 months travelling abroad and, so far as one knows, did not touch a piano during that time, but when she came home she would play for some time.
5. The judge finds that prior to the accident she had not done anything positive about piano teaching, but she was adamant that she had been planning to do so. Her plan in the past was to qualify as a piano teacher. The judge said this:

"One important question is whether in the light of her interest and work with occupational therapy the claimant was ever sufficiently committed to becoming a piano teacher. The next question is, if so, would she have obtained an appropriate qualification. I should say that it is reasonably plain from her evidence, and I so find, that it is most unlikely that she would have taught the piano unless she had obtained such a qualification."

6. The third series of questions the judge addressed was, if she had obtained this qualification when would it have been and when would she have started teaching, and would this have been on a full-time or on a part-time basis. He found that she was an impressive witness and there was no suggestion that she was dishonest. He found that there was a real significant chance that she would have obtained a qualification and taught the piano if the accident had not occurred, but he found that the chance was not very high because of a whole series of factors, and he put her prospects of obtaining a qualification and then teaching at 40 per cent. That as such is not challenged if the qualification be the qualification to which the judge referred.
7. The judge found that he doubted whether she would have been satisfied with anything less than obtaining an Licentiate of the Royal School of Music, and he said that it would have taken her, he thinks, about four years to achieve that, if she got it at all. He went on to say:

"Who knows whether the claimant would really have enjoyed and been successful in teaching the piano, or whether she would have decided at some stage that the work of occupational therapy was more satisfying and/or intellectually rewarding? She may marry, she may not. She may have children, she may not. If all went according to her hopes and expectations, she would marry, have children and would have stopped full-time work in order to look after them and carried out piano teaching at home, perhaps returning to part-time work in occupational therapy when the children became of school age. The imponderables here are such that I do not believe that it is realistic for me to arrive at quantifiable figures involving a large amount for future loss."

8. The judge then went on to say that if she got her qualifications she would have started to teach in about mid-1999. He worked out how much he thought she would get between then and the date of trial, and he added another three years which he thought was reasonably foreseeable. But as to the future he said:

"I consider the claimant should receive compensation in relation to her inability to earn money from piano playing on a Smith v Manchester basis."

9. On that basis he awarded, on the assumption of full liability, a sum of £10,000.
10. Mr Gallagher criticises that approach on two bases. First, he says if there was a 40 per cent chance of obtaining the formal qualification there must be a higher chance of obtaining a lower qualification or of being able to teach without any qualification at all. The judge did not award anything in respect of that prospect.
11. I see the force of what he says is a matter of intellectual analysis, but given the findings of the judge and the evidence of the experts, and indeed of the claimant herself, it seems perfectly reasonable for the judge to have concluded that the claimant would not in practice be prepared to occupy her time teaching unless she got up to the full standard. The fact is that unless you get up to that standard, if you get any work at all, it is teaching little children at Grades 1, 2 and 3 and there are people who do that with love and care. But the analysis or the judgment that the judge made of this university graduate was that this is really not a level of activity which would satisfy her. In my judgment there is no possibility of this court upsetting that finding by that judge.
12. The other method of challenge proposed by Mr Gallagher is to ask why, if the judge accepted a period effectively of four and a half years, did he then, instead of applying a multiplier for the remainder of this woman's potential working life, instead pluck a figure out of the air, as he put it, of £10,000. Again one sees the force of the intellectual point that is made. But the truth of the matter is that when one is dealing in a case with so many imponderables for what is only a sideline activity for someone, not their main line of work (but one might almost say their pocket money), there are so many imponderables that in my judgment there is no realistic prospect of persuading the court that the approach adopted by the judge was one which was not open to him.
13. I would therefore refuse permission to appeal.
14. LORD JUSTICE KAY: I agree.
(Application refused; no order for costs).