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 THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE ANDREW SMITH)

		Royal Courts of Justice Strand London, WC2 Monday, 11th November 2002

1. LORD JUSTICE KAY: The court has before it an application for permission to appeal against the decision of Andrew Smith J, given on 31st July 2002 at Liverpool, determining the quantum of damages awarded to the claimant, Darren Jonathan Clarke, in an action brought against the defendant arising out of a road traffic accident. Judgment on a full liability basis had been entered against the defendant on 22nd May 2000.
2. Andrew Smith J awarded a total of £622,462 inclusive of interest. The defendant seeks to appeal against that award, contending in the skeleton argument filed on his behalf that the amount should have been something less than £300,000. The figure for general damages was agreed, and at issue were the awards for past and future loss of earnings, past and future care supplied by the claimant's wife, and other items of special damage, including the cost of acquiring a home more suitable for the claimant's needs, and additional car expenses consequent upon his injuries.
3. The major issue at the hearing was a conflict between the evidence of the claimant, supported by his wife, and the medical evidence available pre-trial. It had been intended that the trial should proceed on written medical evidence filed on each side from two orthopaedic surgeons: Mr Kaye, instructed on behalf of the claimant, and Mr Campbell, instructed on behalf of the defendant. On 10th December 2001 they had made a joint statement. However, it occurred to the trial judge that there was a conflict between the evidence being put forward by the claimant and his wife on the one hand and the medical position as put forward by each of the two doctors in writing. That essentially related to the present condition of the claimant and whether he was suffering far more pain than was manifest from the medical reports. Accordingly, the judge required that the two doctors should give evidence before him.
4. In his judgment the judge concluded that he accepted the evidence of the claimant and the evidence of his wife, and that meant that not only at that time but in earlier times the claimant had in fact been suffering far more serious pain than he had revealed to the two doctors. The judge accepted that he was somebody who was stoical about it, did not like to make a fuss about the extent of his disability, and accordingly had underplayed to the doctors the true extent of his disability. Further, the judge accepted there had been some deterioration since the time when the doctors had seen him and that therefore the position was worse than they had appreciated.
5. In reaching the conclusion that he could accept that evidence, the judge clearly had to consider the medical evidence from the two doctors. The oral evidence from Mr Campbell was such that if the judge had accepted that to be the correct medical view, it would have been difficult, if not impossible, for him to have accepted the evidence of the claimant about his present condition. However, the judge did not accept Mr Campbell and preferred the evidence of Mr Kaye. Mr Kaye's evidence was to the effect that the account that he had been given was a coherent account which had been consistent, that he had provided sufficient opportunity for the claimant to reveal any more serious aspect to his injuries than he had revealed, and that the claimant had not taken advantage of it. The doctor thought that everything that he had seen was consistent with the account that he had been given throughout, but accepted, having heard Mr Clark's evidence, that the picture as presented to the judge was a different picture from that which had been presented to him.
6. In due course the judge thought it right (page 54C of the transcript containing the evidence of Mr Kaye) to ask him whether if he accepted the evidence that Mr Clarke had given to him that would alter his view, particularly on the employability of the claimant. The response from Mr Kaye was this:

"No, I think it becomes different then, my Lord. If he is working one day, for instance, and having one day off then if you like the employment place is obviously going to be very difficult for him and he would have difficulty holding down a job and he would not be able to do it full-time."

7. Thus, the judge concluded that, since in his view there was nothing in Mr Kaye's evidence that precluded him from reaching a view that the claimant's account was correct, that in those circumstances he could accept that account.
8. The first and major part of the proposed grounds of appeal is an attack upon that conclusion. We have asked Mr Sephton QC to indicate which passages in the evidence precluded the judge from making such a finding. He pointed us to a passage in the same transcript at page 61B. In that passage Mr Kaye was being asked about his views of a video that had been taken of the claimant by an investigator acting on behalf of the defendant. That video had shown him climbing on to a roof, and the judge asked Mr Kaye whether he had any comment to make about what he had seen on the video and the movement of the claimant as recorded. Mr Kaye's response was:

"I remain - that video and that discussion and everything else is very compatible with what I understood to be the situation in May 2001 where he could use his upper body strength, he could get about, yes, he could sort of walk. Given the level of symptoms he has now, stiffness in the morning etcetera etcetera, I would be surprised (a) if he had the confidence to go up on the roof tomorrow, if you like. I suspect that he would have difficulty getting up on to that roof, given what he was describing today."

9. The judge in reaching his conclusions found as a fact that there had been some further deterioration since the time when the doctor had seen him.
10. It is suggested by Mr Sephton that the quoted passage is the high-water mark of the evidence, showing that the conclusion of the judge was one that was unsustainable on the evidence. For my part, I do not think it goes far enough to displace the view of the judge, who had had the advantage of hearing the claimant and his wife.
11. In refusing permission in respect of these matters on the papers, Potter LJ said:

"I consider the judge gave meticulous and sustainable reasons for accepting the evidence of the claimant and his wife, which though at odds with the main joint expert's report was, as he found, not inconsistent with the thrust of the evidence of Mr Kaye on whom he was prepared to rely."

With those comments I find myself in complete agreement. I do not see how a Court of Appeal sitting and not hearing the evidence heard by the judge could displace his findings in this regard on the evidence that was available.

12. There were a number of other grounds. Of those grounds the one that has been argued orally by Mr Sephton before us relates to the future loss of earnings of the claimant. The claimant ran a garage which did repairs. He was hoping to acquire premises that would enable him to do testing of vehicles for the Department of Transport. In those circumstances, one of the issues was whether he would have been in a financial position to acquire those premises. There was expert evidence giving some guidance to the judge about the ability of the claimant to raise such money. But the judge concluded that the sum that the expert thought was necessary was far greater than would have been required in all the circumstances. He therefore was left with no direct evidence from the expert as to what would have been the position if the smaller sum that he found would have been necessary was the sum that was required to be raised. The only direct evidence came from the claimant, who had himself given evidence of his relationship with his bank. He thought that he was a good customer, and that the bank would have provided him with assistance. Mr Sephton argues that that is an insufficient evidential basis for the finding that the judge made.
13. I do not accept that as an arguable point. The judge very carefully went into the matter. He concluded that since the expert evidence did not provide the answer, it was necessary for him to appraise for himself the business proposition that would be being put to a prospective lender, and to conclude whether or not it would be likely that the finance would be forthcoming. I can see no fault at all in his approach or in his reasoning by which he came to his ultimate conclusion.
14. There are a number of other matters. They were dealt with by Potter LJ. I do not, for my part, propose to go through them again, save to say that I agree with his conclusions. Some criticism has been made of the fact that in relation to grounds 5 and 6 Potter LJ said:

"The judge took a rough and ready view which does not justify permission to appeal."

I have no difficulty in understanding what was intended by that remark. There were a number of relatively minor matters of calculation to be done. Some the judge favoured the appellant, some the judge favoured the claimant, and in those circumstances it seems to me that the judge was entitled to take a broad-brush approach to it, which in no sense precluded justice being done. I, too, can see no justification for permission to appeal in that regard.

15. So far as ground seven is concerned, there the evidence was, as the judge himself acknowledged, thin in relation to the matter. But the judge's reasoning (which appears at pages 44G to 46E) was, in my judgment, clear and perfectly sustainable. Accordingly, I can see no prospect on that ground either of the Court of Appeal intervening.
16. For those reasons, I would come to the conclusion that permission should be refused.
17. LORD JUSTICE DYSON: I agree.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)