England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
XX COUNTY COURT
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Tuesday 18 June 2002

Tuesday 18 June 2002

1. LORD JUSTICE SIMON BROWN: This is the defendant Ministry's application, adjourned, upon consideration of the documents by Pill LJ, to be heard orally on notice for permission to appeal and an associated stay of execution with regard to a substantial part of a damages award, totalling £159,662, made in the claimant's favour by Judge Phipps in the St Helen's County Court on 8 February 2002. The part sought to be appealed is the award with regard to the claimant's accommodation claim, namely £92,160, together with associated legal and removal costs of £854, £93,014 in all.
2. The background is a somewhat complicated one, involving certain congenital conditions as well as two broken ankles some ten years apart, for which in large part the Ministry recognised liability. But put very simply indeed, the accommodation award was based on the judge's conclusion that the claimant's main ankle injury, suffered to his left ankle in January 1991 (his right ankle injury sustained in March 2001, caused only a few months' problem) is such that bungalow accommodation is now reasonably necessary; or, put the other way, that he can no longer reasonably be required to manage the stairs at his existing accommodation.
3. The applicant attacks both the principal finding and, even supposing that that was sustainable, the judge's calculation of the consequent loss. As to the principal finding, Miss Mulcahy for the Ministry submits that the judge misdirected himself as to the correct legal approach and, furthermore, he contends that there was simply no sufficient evidence here upon which the finding could properly be made on the correct approach. These criticisms are best understood in the context of two particular paragraphs in the judgment below (I quote from page 33 of the transcript):

" .... I think it is right -- in deference to Mr Sadiq's argument apart from anything else [Mr Sadiq represented the Ministry below] -- to mention two concerns which I had about this aspect of the evidence. The first is this: the medical opinion relied upon in support of Mr Guntrip's argument was that of Dr Bowen-Jones .... Dr Saltissi's caution against experts straying beyond their area of expertise I accept. I have accepted Dr Saltissi's evidence generally, and I think he is right about that as well, and it is somewhat surprising, I think, that the orthopaedic experts were not asked about this. So that is matter of concern, and I have had to consider that in coming to my conclusion.

The second area of concern is this. The Claimant's case as presented went straight from Mr Guntrip having difficulty on the stairs to Mr Guntrip needing alternative accommodation, without pause to consider any alternatives. It is for the defendants to establish a failure to mitigate loss, and Mr Pearson says they have not taken any steps to do so. There is, of course, a tension between that duty on the part of the Defendants and the duty on the Claimant to establish his case."

4. As to the misdirection, the applicant points to the judge's reference in that second quoted paragraph to there being a duty upon the Ministry to establish a failure by the claimant to mitigate his loss. In truth, as Mr Pearson candidly recognised in the course of argument before the court today, no question of mitigation of damage arose in this case. It was for the claimant to prove that nothing short of a move to bungalow accommodation would meet his present needs. That paragraph casts some doubt over the judge's approach, notwithstanding that earlier in his judgment, he had posed for himself what seems to me to be the correct question:

"has the provision of a one-storey property become a reasonable necessity for the claimant as a result of injuries sustained by him for which the defendants are responsible?"

5. Perhaps more fundamentally, however, the applicant contends that there was simply here no proper evidential basis for a conclusion that the claimant's left ankle injury made bungalow accommodation appropriate and necessary. On the evidence, it is right to say, the claimant's major difficulties with stairs appeared to have been rather as a result of chronic back problems and his obesity. Those, however, are considerations not for today but for another day when, as I shall shortly indicate, this appeal will fall to be heard.
6. When it comes to calculating the loss consequent upon the claim, assuming that the claim for the need to move is sustained on appeal, the criticism is to the award which was calculated thus. £92,162 represents the rental cost of bungalow accommodation at £640 per month; that is £7,680 per year; multiplied by a 12-year multiplier to take account of the claimant's life expectancy. A number of arguments arise as to why that should not be the appropriate basis for the assessment of damage, but to my mind the strongest is that which has been placed before the court just today, and which Miss Mulcahy candidly recognised was an argument not advanced before the judge below. I need not spell it out. It involves the application of an approach adopted by this court in Roberts v Johnstone [1989] QB 878. If that approach is adopted, then, according to Miss Mulcahy's argument, the consequent figure for alternative accommodation reduces from £92,160 to £36,492. As I indicated in the course of the hearing, it will be for the court on the hearing of the substantive appeal to decide whether to permit that radically new approach to be canvassed and argued on the appeal, given that it was not raised below. No doubt that will depend upon whether that can be done without prejudice to the claimant, save of course prejudice as to costs against which this court could readily compensate.
7. For these reasons, which are perhaps more than sufficient, given that, as I indicated earlier, I am proposing to grant permission to appeal, in my judgment this application succeeds. It succeeds too with regard to the consequential application for a stay, that being, of course, limited to the accommodation element of the claim (an element, I may add, which was introduced into these proceedings only a few days before the trial below). The figure mentioned earlier of £93,014 is to be reduced by 20 percent, to reflect the judge's finding of contributory negligence, to £74,411.20.
8. I also indicated in the course of the hearing that the respondent's application to introduce fresh evidence would likewise fall for consideration by the full court on the substantive hearing of the appeal, as would any corresponding application on behalf of the appellant Ministry.
9. The costs of today will be costs within the appeal.
ORDER: Application for permission to appeal allowed. Application for a stay in respect of the accommodation element of the claim, in the sum of £74,411.20, allowed. Application to introduce fresh evidence adjourned to the substantive appeal. Costs of these applications to be costs in the appeal. (Order not part of approved judgment)