England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA COUNTY COURT
(His Honour Judge Hickinbottom)

		Royal Courts of Justice Strand London WC2 Tuesday, 21st May 2002

1. LORD JUSTICE BROOKE: This is an appeal by the defendants against an order by Judge Hickinbottom at the Swansea County Court on 8th August 2001, to the effect that they should pay the claimant £158,577.85 as damages, inclusive of interest, in respect of a personal injuries accident that he sustained at his place of work on 5th February 1996. These proceedings were commenced on 4th January 1999. On 5th September 2000 judgment on liability was entered against both defendants, subject to a 15 per cent contribution by the claimant. The hearing on the assessment of damages took place on 30th and 31st July 2001. The judge gave a reserved judgment a week later. The judge's task was made more difficult by the fact that he did not accept parts of the claimant's evidence and there was a division of opinion between both the consultant orthopaedic surgeons and the consultant psychiatrists, all of whom gave evidence in what the judge described as a balanced and helpful way. The judgment is a model of clarity. We are indebted to the judge for setting out the facts so clearly.
2. Subject to the claimant's contribution of 15 per cent, the award was made up in the following way: general damages, £19,300; past loss of earnings, £54,174.75, loss of future earning capacity, £89,352; miscellaneous expenses, £999.24, total £163.825.79. In the event, the principal sum awarded was £139,251.93 together with £19,305.92 agreed interest.
3. The claimant was a security guard. The accident occurred when he was electrocuted while in the process of turning on the electricity supply to the defendants' premises at the beginning of the day. One of the switch boxes had a defective safety catch. When he turned on the switch of that box he felt a severe shock in his left hand and a force in his chest, as if it was being squeezed. He was then thrown 10 to 15 feet through the air, landing on a portable gas blower. He suffered physical injuries to his mouth and back, and later he suffered from a depressive illness.
4. The claimant was born in November 1960. He was 35 at the time of the accident. Since leaving school at 16 he has had jobs in the army, as a mechanic, as a builder, as a steward in a club and as a civilian in a police crime prevention scheme. He then had three earlier jobs as a security guard before starting with the defendants in 1995. Although he had no qualifications, he was effectively in continuous full time employment from the time he left school until the date of his accident. He married in 1986 but separated from his wife and started a new long term relationship two years later. He is now divorced from his wife. He has a 15 year old daughter by his marriage. He was an active man, used to taking long coastal walks. He was also fond of cycling, DIY and gardening. One of the issues in the case was whether he already had degenerative changes in his back, whose effect was accelerated by the accident. The judge found that he had not sustained a previous traumatic injury to his back, and this particular finding was not challenged on the appeal.
5. So far as his psychological makeup was concerned, the judge accepted the evidence of the defendants' psychiatrist, who said that there was no evidence that he suffered from any significant psychiatric illness before his accident. However, there was evidence that he was fairly highly strung, with a tendency to become concerned about physical aches and pains. These aches and pains are usually attributed, following specialist investigation, as anxiety. He was assessed as a man of slightly less than normal fortitude, who was more likely than the average man to find it difficult to cope with unemployment, physical pain and inability to exercise regularly.
6. One feature of his pre-accident medical history, on which Mr Jarman QC for the defendants relies on this appeal, is the vasectomy which was performed in 1992. Following this operation he had pain in his testicles. In 1998 the consultant neurologist who performed this operation recorded that, since 1992, he had continued to have pain in the left side of his scrotum, more or less constantly. The pain was worse after exercise and during and after sex. He never got erections because of the pain. The neurologist reported in September 1998:

"He is so bothered about this now that he feels it is responsible for the break up of his marriage and says that he never gets erections because he is so frightened of the pain."

7. After considering each element of the claim with care, the judge summarised the effects of his findings on pages 23 and 24 of his judgment. He awarded the claimant £1,300 for the trouble with his mouth, involving a fractured tooth, on which nothing turns on this appeal. He found that Mr Rees had suffered extensive bruising to his back, with a swelling in the thoraco-lumbar region which persisted for five weeks. He had five months of considerable pain, but by April 1997, 14 months after the accident, the back had improved considerably. He continued, up to the date of the trial, to take daily analgesics to lessen the pain, and he continued to experience persistent and continuous slight ache in the back punctuated by episodes of frank pain, pain which was aggravated by lifting and by general activity. His back clearly affected his every day life considerably. Lifting was difficult. Driving long distances was difficult. Any physical activity, including exercise, gardening and sexual activity was difficult and painful. His condition had improved since 1997. Whilst he continued to suffer discomfort, his disability was not gross and he was continuing to improve but very slowly. Any further improvement would also be very slow and, for practical purposes, his condition, relatively minor as it was at the time of trial, was likely to be permanent.
8. In relation to his psychiatric troubles, the judge preferred the evidence of the defendants' psychiatrist, Dr Aylard. He accepted Dr. Aylard's evidence that the claimant had suffered from a moderately severe depressive episode which had been serious and long. It started in autumn 1996, worsened up to 1998 and has since improved. It exhibited itself in a low mood, poor sleep, boredom, weight loss, anger and irritability. The judge said that Mr Rees' psychiatric condition was still improving and that this would allow him to obtain part time work from January 2002 and full time employment from June 2002. By that time the debilitating effects of this episode would have run its course, but he had an increased chance, rated at 50 per cent as opposed to slightly higher than 10 per cent, of having a further episode of depression over the next 20 years.
9. Five issues have to be resolved on this appeal: the judge's findings on the orthopaedic evidence, the judge's findings on the psychiatric evidence, particularly in relation to causation, the judge's findings on the time when Mr Rees ought to start or have started part time and full time work respectively, the amount of general damages and the award of damages for future loss of earnings and/or earning capacity.
10. So far as the first of these matters are concerned, the difference between the two orthopaedic surgeons at the trial was that Mr. Hoddinutt for the claimant attributed all Mr Rees' suffering to the accident, while Mr. Jones for the defendants was advancing the theory that Mr. Rees must have had pre-existing degenerative changes to his back, that the effect of the accident would, in the ordinary course of events, have lasted about two years, and that any other suffering was attributable to the pre-existing changes.
11. The judge dealt with this matter on pages 16 to 18 of his judgment. He said that both experts supported their view in a cogent and compelling way. He explained why he preferred Mr. Hoddinutt's opinion. He set out seven reasons for this. First, it was common ground that Mr Rees was subjected to a significant trauma to the back at the time of the accident. Secondly, Mr. Jones considered that there had been a hiatus in symptoms between early 1998 and early 2000 but, after listening to Mr. Rees giving evidence, the judge found that there was not a hiatus but a consistent and continuing symptomatology in Mr Rees' back, although his symptoms generally diminished over time.
12. The judge's third reason was that Mr Rees had obtained benefits from physiotherapy in mid-1996. This was one of the grounds on which Mr Jones advanced his view that the effect of the accident had resolved by early 1998. The judge said that, although the hydrotherapy gave Mr Rees some relief, that relief was limited and the therapy did not resolve his back problem which remained and remains symptomatic. I will return in due course to the evidence relating to the physiotherapy.
13. The fourth reason that the judge gave was that the nature, extent and position of the pain suffered by Mr Rees in his back had been consistent. This did not suggest two pathologies. The judge's fifth reason was that there was no evidence that he had suffered from any lumbar back symptoms at any time before the accident. An episode which had affected his neck in 1994 had been conceded to be insignificant by Mr. Jones, and the judge found that that injury did not suggest that Mr Rees had an inherently weak back or one prone to degeneration. Sixth, the judge found that there was no evidence at all, by x-ray or otherwise, that Mr Rees' back had suffered a degeneration. The x-ray taken shortly after the accident was, in Mr Jones' words, "normal". It showed no degeneration or disease of the spine.
14. Finally, the judge said that in his report of 1st February 1999 Mr Jones had raised the question whether a constitutional change could account for the more recent symptoms, but he wished to see an x-ray before giving an opinion. The only x-ray showed no degenerative change. Having considered that episode, he concluded in his 29th April 1999 report that the back problem was one of constitutional origin which the accident brought forward by two years. In his oral evidence, Mr Jones accepted that that opinion could not have been formed as a result of seeing a negative x-ray. He said that he should have come to that conclusion in the earlier report on the evidence then available. The judge accepted that explanation, but he said that Mr Jones' report of 29th April 1999 did little to engender confidence in his overall opinion. For these seven reasons the judge was satisfied that Mr. Rees' ongoing back symptoms were not the result of degenerative change. On the balance of probabilities he was satisfied that they were attributable to the February 1996 accident.
15. Subject to the point about the physiotherapy, to which I will return, Mr Jarman on this appeal challenged three of the judge's reasons. The first challenge was mounted to the fourth reason, that the nature, extent and position of the pain suffered by Mr Rees in his back had been consistent, which did not suggest two pathologies. Mr Jarman complains that Mr. Hoddinutt had not given evidence along these lines. He had given other explanations for the pain.
16. In my judgment, the judge was entitled, if he wished, to accept the evidence given to him by the claimant when he gave evidence in the witness-box, which was to the effect that the pain had always been in the same place, it had been continuous pain and that he had had to use painkillers every day, although, over the course of time, he preferred to buy them over the chemist's counter rather than to pay a larger price in getting them by prescription. In my judgment, there is nothing in Mr Jarman's first challenge. The judge had ample evidence on which he could reach the conclusion that he did reach.
17. Mr. Jarman's other challenge is to a combination of the judge's sixth and seventh reasons. These relate to the x-ray evidence. It appears that a few days after Mr. Rees suffered this accident his general practitioner sent him to the local hospital where he had x-rays in the casualty department, which were said to be normal and disclosed no fracture or dislocation. Neither Mr Hoddinutt nor Mr Jones ever saw that x-ray. Mr. Hoddinutt made his two reports on Mr. Rees' condition in the two years following the accident and was not subsequently invited to see him again, no doubt because of the claimant's solicitor's reluctance to seek further authority for a further examination of a legally aided client.
18. Mr. Jones, on the other hand, came on the scene for the first time in 1999, three years after the accident. He first saw Mr. Rees in February 1999. On that occasion he merely had Mr. Hoddinutt's two reports. He did not have any hospital records or x-rays. Mr. Rees told him that he had never had his back x-rayed. Mr. Jones examined him and gave a guarded opinion and prognosis because he said that this depended to some extent on the factual accuracy of information given to him by the patient and was subject to amendment should there be any factual inaccuracies in this information. In setting out the history, he repeated that, although the injury was diagnosed as soft tissue trauma, he had never been x-rayed. He pointed out that he had not seen the general practitioner's records either, and he said that the sequence of events, as outlined to him, was unlikely; in other words, the soft tissue injury to the spine still having symptoms after three years. He then wrote:

"The question therefore arises as to whether he has a constitutional condition which has been brought to light by the accident and to this extent the general practitioner's record should be examined. Ideally, there should be an x-ray to observe as it may show some mild degeneration of the lumbar discs."

19. Two months later, on 29th April 1999, Mr. Jones wrote a further short report, having received the Morriston Hospital records. These included the record from the casualty department which recorded his initial attendance very soon after the accident and his being seen again on an indecipherable date in February 1996. The record of the examination is set out, and Mr. Jones wrote "X-rays showed no fracture or dislocation and the impression the doctor gained was of myalgia secondary to muscle spasm as a result of the shock."It was this report about which the judge displayed a lack of confidence in Mr Jones because Mr Jones' comment was:

"This record confirms that his back was involved in the injury. My overall conclusion, therefore, is that his back problem is a constitutional condition which has been exacerbated by the accident bringing symptoms forward by approximately two years. "

20. As Mr Jones accepted, that was the appropriate conclusion of his first report. The Morriston Hospital records did not advance that conclusion at all because the x-rays, insofar as they were recorded, took the matter no further.
21. In February 2000 Mr. Jones conducted a further examination and wrote a further report. On this occasion he drew attention to the difficulty in identifying the cause of the continuing symptoms without further tests, such as MRI scanning, showing some abnormality. It appears that in April 2000 Mr. Jones was sent some x-rays, of unknown date, by the Singleton Hospital where Mr. Rees had been attending in relation to gall bladder problems. On this occasion Mr. Jones simply said:

"I am provided with the claimant's Singleton Hospital records and X-rays and am asked for my comments.

X-RAYS

The packet contains two films, an ultrasound scan of the gall bladder and an AP view of the lumbar spine which is normal."

22. He made no other comment.
23. That was the state of the evidence as disclosed in the medical reports, and in a short joint statement Mr. Hoddinutt and Mr Jones identified the matters on which they agreed to differ. Mr. Hoddinutt accepted in evidence at the trial that there had been no scan or further investigation. Whether investigations would be valuable, he suggested, would be uncertain. If there was a damaged disc a scan might assist. He accepted that, although the x-ray taken in February 1996 was normal, it might have shown some minor degenerative change but he was firm in his opinion that Mr. Rees' problems were less likely to be the result of constitutional change and more likely to be attributable to the accident.
24. Mr. Jones, on the other hand, repeated his concern that the question whether there was a pre-existing constitutional problem would have to be investigated and that no investigation had been carried out. He accepted that nobody had noted any degenerative change on the x-ray. He repeated his view that the symptoms had gone on far too long for it to have been a simple soft tissue injury. He said that the chances are that at Mr. Rees' age a third of people would show some signs of degeneration on a MRI scan, whether or not they had ever had pain. He drew attention to inappropriate signs upon examination which questioned Mr. Rees' credibility. Mr. Hoddinutt, on the other hand, had found no such inappropriate signs. Mr Jones said that he had not seen the February 1996 x-ray. He was asked about the x-ray that he had seen and he explained that this was an x-ray relating to the gall bladder problem, and that it was not what might be described as a proper x-ray for the lumbar spine. The spine was visible on the x-ray, but the x-ray was really of the gall bladder.
25. What Mr. Jarman says about all this is that the judge got a little bit confused about what was being said about x-rays. One of Mr. Jones' answers in cross-examination tended to suggest that he had already seen the gall bladder x-ray in April 1999 when he wrote the letter which I have criticised, and the judge was of the belief that the x-ray which was taken shortly after the accident positively showed no degeneration or disease of the spine, whereas, in truth, this was an x-ray taken to see whether there was a fracture or dislocation in the back region which was causing the problems which Mr. Rees mentioned to his GP, and it was not necessarily an occasion when, whoever looked at the x-ray in the casualty department, would be concerned to see whether or not it also showed pre-existing degenerative changes.
26. It appears to me, however, that, although the judge's description of the effect of the x-ray is understandably confused, this is not a ground on which it would be appropriate to set aside the judge's findings. As Mr. Maddox, who appeared for the claimant, pointed out, Mr. Jones in his reports, which were received by the claimant's solicitors, reported in positive terms, first, in relation to the Morriston records (which he saw in April 1999), that the x-ray showed no fracture or dislocation. He made no particular comment on it. Secondly, in his report of February 2000 he said of the Morriston x-ray that the x-ray taken at the time was normal. Thirdly, he reported that the Singleton Hospital records showed a view of the lumbar spine which was normal.
27. In those circumstances, Mr. Maddox submitted that, whatever Mr Jones may have said at the beginning in his reports, he appeared to be setting out a consistent view that the x-rays were showing a normal position and not one which gave rise to concerns about pre-existing degenerative changes. In those circumstances Mr. Maddox submitted, and I accept, that the claimant's solicitors were justified in making no further inquiries on their side.
28. The position, therefore, was that there was no clear x-ray evidence that there were pre-existing degenerative changes, or that there were no pre-existing degenerative changes. No MRI scan was produced to the court or arranged by Mr Jones, who of course had no responsibility for the claimant's care, and the judge had to do the best he could on the evidence. For all the reasons given by Mr. Hoddinutt, not all of which were challenged on the appeal, coupled with the evidence given by Mr. Rees which the judge tended to accept, although he considered that there were understandable grounds for Mr. Rees exaggerating in the course of some of his evidence, the judge found that all the symptoms were attributable to this particular traumatic injury in February 1996. In my judgment, he was entitled to reach that conclusion on the findings, and I would dismiss Mr. Jarman's challenge to the findings on the orthopaedic side of the case.
29. So far as the psychiatric evidence was concerned, the judge had to choose between the evidence given by the consultant psychiatrist called by the claimant and the evidence of Dr. Aylard.
30. So far as the other psychiatrist's evidence was concerned, he thought that Mr. Rees was suffering a severe personality change caused by post concussional syndrome. The judge gave his reasons for rejecting that view of the matter. There is no challenge to the judge's conclusion on that part of the case. The result of this was that Dr. Aylard was the only witness to give evidence in relation to the causation of the depressive disorder from which the judge found the claimant was suffering.
31. He told the judge that there were five causative factors of the depressive illness: Mr. Rees' inability to work, the financial problems that he suffered as a result of his inability to work, his back pain, his lack of the opportunity for regular exercise and his deteriorating relationship with his partner. Dr. Aylard told the judge that he would ascribe a differing order of importance to these five factors at different times. During the first few months of the depressive disorder the inability to work, the back pain and the loss of regular exercise would have been most important. As time went on and the depression gradually deteriorated during the course of 1998, two years after the accident, Dr Aylard believed that the deteriorating relationship became more important, whilst the other factors were still operating, with, obviously, the financial problems building up as the period of unemployment continued.
32. Dr. Aylard summarised the effect of his evidence by saying that Mr. Rees suffered a long depressive episode triggered by the accident, getting worse through 1998, and he was gradually getting better. He had an increased risk of future episodes of depression. He told the judge, and the judge accepted, that there was a fifty per cent chance of a further recurrence of depression over the next 20 years. This would depend on so many different factors, his back pain, whether he had a job, the quality of the medical care that he was receiving, the quality of any relationship he formed, and so on.
33. The challenge Mr. Jarman makes to the judge's conclusion on this part of the case is that, after setting out the judge's reasons why he preferred Dr. Aylard's opinions, the judge said:

"I am quite satisfied that, on the balance of probabilities, but for the accident, which led to his being made unemployed and led to considerable financial concerns, Mr Rees would not have suffered from this condition, or from any episodes of depression. Dr Aylard accepted that it was the accident that triggered this depressive episode. This condition is entirely attributable to the accident."

34. Mr. Jarman, while not challenging the judge's finding that the accident triggered off the depression, submits that the judge went wrong in failing to take account of other causative factors. In this regard he placed weight on the evidence given by the report of the consultant urologist in the autumn of 1998 of the effect of the continuing pain which Mr. Rees was suffering from his testicles following the vasectomy in 1992 and what Mr. Rees told the consultant about it.
35. In the recent judgment of this court in Hatton v Sutherland [2002] EWA Civ 76 Hale LJ considered, under the subheading "apportionment and quantification", the issues a court has to take into account when there may be more than one cause of a claimant's psychiatric disorder. After setting out a number of well known authorities, Hale LJ said:

"Hence the learned editors of Clerk & Lindsell on Torts, 18th edition (2000), at para 2-21, state that 'Where it is possible to identify the extent of the contribution that the defendant's wrong made to the claimant's damage, then the defendant is liable only to that extent, and no more'. This may raise some difficult factual questions."

36. Examples were given of the difficulty from three decided cases. Hale LJ continued at paragraph 41:

"Hence if is established that the constellation of symptoms suffered by the claimant stems from a number of different extrinsic causes then in our view a sensible attempt should be made to apportion liability accordingly."

37. When we asked Mr. Jarman whether he could say that the trouble with the pain in his testicles would have caused Mr. Rees any depressive disorder, or anything which could be categorized as psychiatric injury, independently of the problems which he suffered from February 1996 onwards, Mr. Jarman frankly said that he was unable to. There was no evidence going to this point. He accepted that this was not a case on which it could be said that this particular problem would have caused psychiatric injury as opposed to anxiety or concern or other worries not resulting in psychiatric injury on its own. He argued, nevertheless, that by the time of 1998, when Mr. Rees was enduring an increasingly strained relationship with his partner, which were causing great concern, we ought to attribute a portion of the depressive disorder from which he was suffering to this external cause, so as to reduce the extent to which his own client should be liable to compensate Mr. Rees. He was unable to suggest what proportion should be attributed to it. The matter does not appear to have been gone into in any great depth while Dr Aylard was in the witness-box. For the reasons I have given, Dr Cuthill, the claimant's psychiatrist, did not deal with this aspect of the matter.
38. All these cases have to be determined on their own particular facts. It would have been helpful if the judge had explained why he made the finding that the condition was entirely attributable to the accident after receiving submissions from Mr. Jarman to the effect that part of the cause of the condition, at any rate in 1998, was something quite removed from the accident.
39. In my judgment, the different factors which were causing the deepening depression in 1998 were so bound up together that it is really impossible for this court to disentangle them and to say that a percentage of the depressive disorder, possibly attributable to a finite period of time, were attributable to the cause which Mr. Jarman has identified. There is no doubt that the depressive disorder was triggered by the accident. But for that accident he would not have suffered the disorder. On the judge's clear picture of the kind of man that Mr Rees was both before and after the accident, all the frustrations which must have befallen this man as a result of the accident, his inability to take exercise, the financial problems, the pain, the worries that this unhappy man must have caused to his partner, are so inextricably bound up together that it would be wrong for this court to identify some separate cause of part of the difficulty. As I have said, all these cases turn on their own particular facts. Judges in the lower courts should apply the principles set out by Hale LJ in the Hatton case. On this occasion I see no reason to disturb the judge's finding.
40. The next matter which Mr. Jarman challenged was the judge's finding towards the end of his judgment that Mr. Rees' condition had improved considerably since 1998 and was still improving:

"That will allow Mr. Rees to obtain part time work in January 2002, about six years after the accident, and full time employment from June 2002."

41. He made his award of damages on that basis.
42. Dr. Aylard's evidence to the judge was that when he saw Mr. Rees in May 2000 his symptoms were gradually improving, but he felt that, following the settlement of his claim, he would be able to retrain, and after a period of retraining he would be able to return initially to part time and then to full time work. He said:

"When someone is in a claim the whole world stops until it is settled."

43. If he had seen him in his out patient's clinic in June 2000, he would have encouraged him to start looking for work at that stage, at first some voluntary work and then gradually increasing it. He thought he would take six months before he could get part time work, and a year before he would get full time work. He said that involvement in a claim complicated things.
44. Mr. Jarman submitted that on that evidence the judge ought to have considered that Mr Rees should have been fit for part time work and doing part time work from a period of six months after he saw Dr Aylard; in other words, from about November 2000 onwards, and full time work six months later, instead of postponing the effect of that finding for 12 months in each case. Dr Aylard gave evidence, which the judge was entitled to accept, that these periods were properly to be taken to start from the settlement of the claim, as the claim was not settled in any sense until the award of damages in July and August 2001. In my judgment, the judge was entitled to start time running from that date. I would reject Mr. Jarman's challenge on that part of the case.
45. His next challenge was to the level of general damages. I have already set out in my judgment the judge's summary of his findings both in relation to the back and in relation to the psychiatric depression. The judge said:

"With regard to the back and the depressive episode, I find that these two conditions have not only operated at the same time, but have been substantially linked, to the extent that it is difficult to assess awards for each individually. The back injury falls within the wide 'moderately severe' bracket of the Judicial Studies Board Guidelines, towards the middle of the lower sub-band (which would put the back injury alone at a level of approximately £10,000): and the authorities to which I have been referred suggest that a depression of the type and severity suffered by this claimant would be in similar bracket, but perhaps a little less, if considered alone. In my judgment, the two conditions together should attract an award of £ 18,000."

46. Mr. Jarman submitted that both of these figures taken alone were not only too high but also above the top level of the bracket of awards for which the judge was entitled to have recourse, and that, collectively, they were much too high. There was a certain amount of cross pollination from one type of damage to the other. In my judgment, this is not a case in which this court should intervene. The judge had the great advantage of seeing Mr. Rees in the witness-box, of making his assessment of how much the pain and how much the depressive disorder affected the life of this particular claimant, and although it may be that I would have awarded a smaller sum in total than the judge awarded, this is not a case in which the Court of Appeal should interfere with the judge's award.
47. I turn finally to the judge's award of nearly £90,000 for loss of earnings or loss of earning capacity from the date of the trial. No challenge was made on the basis of the judge's findings in relation to the physical and psychiatric injuries which I have upheld, to the claim for loss up to the time of the trial, which was calculated at a rate of £9,928.88 a year, which was what Mr. Rees was earning at the date of the accident. There seems to have been no attempt to find out what somebody in Mr. Rees' position would have been earning in the years after 1996.
48. The judge approached future loss by saying that there were a number of relevant periods. He said that there would be, first, a period of 146 days in which Mr. Rees would not be capable of any work. He attributed the sum of just over £1,270 in that period. Then there would be a period of 151 days up to 1st June 2002, during which Mr Rees would be capable of part time work but not heavy work. He said:

"Having seen Mr. Rees, and seen his work record down to the time of the accident, I am sure that he will be highly motivated to find a job, but clearly he will be at a disadvantage in the job market because of his inability to do heavy manual jobs, such as those in which he was fully employed to the date of the accident."

49. The third period was between 3rd June 2002 and 11th November 2020 when Mr Rees would be 60. During this period he would be capable of full time work but he would have the same handicap as during his part time phase. The judge had received no evidence as to what jobs might be suitable or how much the jobs might pay. It was common ground between the orthopaedic experts that he would be unable to do heavy manual work. He had tried to get jobs of the type that he had before without success. The judge said:

"It is clear that the handicap he faces is a very substantial one. Throughout his working life, . . . he had been engaged in manual work of one sort or another. That is now effectively closed to him altogether."

50. He had been involved in a five week retraining course on computers but found it difficult to concentrate after the first two weeks, although this was due to his psychological condition which would have fully resolved by June 2002. The judge said:

"The difficulties of a 40 year old man, used to manual work, obtaining employment in West Wales in non-manual work should not be underestimated."

51. Although Mr Rees was highly motivated, the judge considered that it was likely that if he was able to obtain employment of the non-manual sort, it would be at a level lower than the average that he had enjoyed in his previous manual jobs.
52. The judge then approached the quantification of the loss in this way:

"In this case, the multiplicand is agreed at £9,928. On the basis of the Ogden tables, the unadjusted multiplier to pension age 60 is 15.42, which must be adjusted for medium economic activity (97%), for occupation (plus 1%) and geographic region (less 2%), leaving a revised multiplier of 14.80.

However, this case is unfortunately more difficult than a simple mathematical exercise on the basis of the Ogden tables, because I must take account of the claimant's earning capacity, as well as the usual exigencies."

53. He set out the effect of the submissions that he had received on the basis of well known case law. He said that where a claimant was not in employment and had been rendered less attractive in the job market by the injuries he had suffered, one had to look forward to the difficulties now faced, as well as in the future, in obtaining and retaining employment. He directed himself:

"The assessment of future losses in a case such as this therefore requires an assessment of the extent to which Mr Rees is likely to be employed in the future. The vital aim is to do justice between the parties."

54. After quoting what Scarman LJ said in Smith v Manchester Corporation [1974] 17 KIR 1 7, he said:

"In this case, the multiplier and multiplicand approach is clearly of assistance."

55. After setting out various considerations based on the evidence that he had received, the judge then summarised the problems in assessing Mr Rees' employment prospects now. One was the possible lack of aptitude for non- manual work. The second was the problem of his back. The third was that he would always be more prone to depressive episodes. The fourth was that some employers might be less willing to employ him than might otherwise be the case. He said that at the age of 40 he would be at a disadvantage to younger employees and that he had no track record in non-manual employment. He would be vulnerable to more time off because of his residual health problems. It was very unlikely that he would obtain a non-manual job that would give him the consistency of employment that he had enjoyed in the past. The judge then concluded:

"It is a difficult task, but, taking all of these factors into account, and doing the best I can, I consider the multiplier should be reduced from 14.8 to 9, to reflect all of these exigencies including the factors I can perhaps describe as the 'Smith v Manchester' factors', and including those that I have identified as affecting Mr Rees in the period from today to June 2002 when he will be medically fit enough to obtain full time employment."

56. Mr. Jarman said that this approach of the judge, by using the multiplier and multiplicand, in a case of this kind was inappropriate. It resulted in Mr. Rees being awarded 60 per cent of all his potential earnings between the date of trial and the time that he was 60. He was going to be fit for work. It was wrong for the judge to compute damages in this way by starting off as if by taking as his starting point a claim for total loss of earnings and then discounting the claim calculated in that way by a figure which he considered appropriate, taking into account the uncertainty.
57. Mr. Maddox, on the other hand, submitted that this was not a case in which we ought to disturb the approach of the judge. He was entitled to approach the case on the multiplier/multiplicand basis. He was entitled to take into account the matters which he did take into account. He was also entitled to take into account his knowledge of the prospects of Mr. Rees obtaining employment locally, with the drawbacks of his employability as identified by the judge.
58. I have sympathy with the judge in the difficult task that he faced but, in my judgment, he embarked upon his task the wrong way round. This was a case in which he had found that Mr. Rees would be capable of full time work from a period starting a year after the trial. It was wrong for him to start by directing his attention to what Mr. Rees would lose if he was totally incapacitated for work right up to the time of his potential retiring age, and then to make a discount for the possibility that he would be able to work for some of that period. In my judgment, the judge ought to have started his assessment in the conventional way, by saying: "This is a man who, in my judgment, is going to be capable of working in a year's time." He would make allowance for the possibility that he might not get a job immediately. He would make allowance for the uncertainty which judges have to make in this type of case, and would then say to himself: "Is this a claim which it is appropriate to quantify on the more conventional lump sum basis or is it a case in which it is legitimate and open to me to use the multiplier/multiplicand basis and give a generous multiplier?"
59. Even taking into account the fact that the multiplier was fixed at the 1996 earnings (and neither counsel has told us what the 2001 equivalent would be), this is a case in which in my judgment the judge should have adopted a more conventional approach. A starting point would have been a multiplicand of whatever counsel might have agreed of a figure slightly higher than £928. It had to take account of the problematic earnings during the first year and the problems of finding work. He would then have to make what adjustments he thought appropriate when looking at the future, as common law judges have to do in making these difficult assessments. In my judgment, the award of £89,352 was far too high. It was one with which this court can properly interfere.
60. Taking into account the matters to which the judge drew attention, I consider that the appropriate award for loss of earnings and loss of future earning capacity was £45,000. I would reduce the judge's award by that amount. To that extent and that extent only, I would allow the appeal.
61. LORD JUSTICE LATHAM: I agree.
62. MR. JUSTICE HART: I agree.