England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (SIR IAN KENNEDY
sitting as a judge of the High Court)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 October 2003

Lord Justice Potter:

1. This is an application by Andrew Raitt ("the claimant"), a professional golfer, for permission to appeal from a judgment of Sir Ian Kennedy, sitting as a Judge of the High Court, on 6 December 2002, by which he assessed the claimant's general damages in respect of a dog bite to his left little finger in the sum of £2,500, together with damages for loss of earnings of £3,000 and other special damages of £83. The defendant having previously been held liable to the claimant to the extent of 80% in respect of his damages, the total award, together with interest at the appropriate rate, was £6,023.39. Permission to appeal having been refused on the claimant's written application, the oral application was listed for hearing with the appeal to follow if permission were granted.
2. The claimant suffered a very unpleasant injury to his finger when, in trying to separate two dogs fighting, one of them bit through the terminal phalanx of his left little finger so that the fingertip was hanging on by its skin. Fortunately, he made a good recovery; the bone healed and the pulp of the finger with it. However his finger was left one eighth of an inch shorter than his right little finger. The loss of length is from within the pulp and the natural tip is still present, though slightly shortened, the tip being a little more pointed than before, with a small indentation on its ulnar side and some corresponding loss of the pulp. The nail is cosmetically good. Apart from the shortening, the only permanent effect is a certain numbness left in the tip, despite which the pulp remains sensitive to pressure.
3. The accident occurred at a fairly critical point in the claimant's golfing career, he having turned professional at the age of 25 only a few months earlier and being about to enter the full golf season in an effort to qualify for the PGA European Tour.
4. A brief outline of his golfing career up until that time is as follows. He showed exceptional prowess as a schoolboy golfer, becoming an English schoolboy international in 1986. In order to develop his golf he went to an American University, playing with considerable success on the American College circuit. He returned to England at the end of 1992, playing as an amateur in 1993 and 1994 also with success. He became Surrey amateur champion in 1993 and East Berkshire Stag champion in 1994. In the second half of 1994 he took a junior appointment at the Wisley golf club with the intention of turning professional and seeking to qualify for and make his career upon the European Tour.
5. In 1995, the classic route by which a young professional could qualify for the European Tour was, by his results, to pre-qualify for the Qualifying School and then to attend the school proper. Once at the School, the top 45 of the hundred or so candidates attending would be awarded a 'card' and thus qualify to play on the European Tour. In 1993 and 1994, the claimant failed to pre-qualify for the school. However in 1995, despite his accident, he did pre-qualify and went to the school, but unfortunately failed to obtain a card. He failed again in 1996 and 1997 but, in 1998, having won the British PGA Assistants' Championship and come 6^th in the U.S. Assistants' Championship, he was successful in gaining a Tour card so that in 1999 he competed in 23 European Tour events being ranked 124^th.
6. The accident happened on 4 June 1995. The claimant made a rapid and determined recovery. The concern as a result of his injury was that his grip would be adversely affected and that any consequent adjustments would hinder the development of his game. It was the claimant's evidence that hitherto he had employed a classic orthodox grip, his left hand gripping the club in what is termed the "neutral" position with the thumb lying down the front of the shaft pointing towards the top of the head and the middle, ring and little fingers of the left hand gripping the shaft, the index finger contributing less to the security of the club in the hand. Once the injury was healed, the claimant employed the same grip but experienced a sensation that the club might slip or tend to slip from his grasp. As a result, while seeking to maintain the ideal position he relied more than he used to on the contribution of his index finger to his grip and grasped the club a little more tightly with his middle and ring fingers, to compensate for a feeling that the little finger was no longer the anchor of the left hand when gripping. It was also the claimant's evidence that the overall effect of the accident and the sensation that the club might slip created a tendency to turn his hand somewhat clockwise from the desired position which led to a loss of confidence and has had a lasting adverse effect upon his golf.
7. It was the claimant's case at trial that, as an outstanding golfer and a young professional, he would have developed his career to a far greater extent and made far higher earnings as a professional golfer than has since been the case. So far as special damages were concerned, it was contended that, but for the injury, he would in 1995 have come in the top 40 at the Qualifying School and obtained his card for the European Tour and that he had thereby suffered financial loss. So far as loss of future earnings was concerned, it was his case that, but for the injury, he would have been a potential Ryder Cup player and could have reasonably been expected to be placed alongside another professional golfer, David Howell, as a tour winner who could expect to become financially secure over a 10-year period playing upon the European Tour. For the purposes of quantifying loss of earnings, Mr Howell's earnings were used as a comparator. It was acknowledged that there were difficulties in drawing a comparison with the career of any particular golfer, the position being, at this level of golf, that predictions as to ultimate success are difficult, not least because the mark of a champion, or a successful golfer at the highest level, is consistency in performance and an iron temperament. Accordingly, it was argued on the claimant's behalf that the judge, having quantified the potential earnings of the claimant by reference to the career of Mr Howell or a golfer of similar talent, should assess the damages on a "loss of chance" basis according to his assessment of the claimant's long-term potential as a result of the accident. Alternatively, the judge should in any event take the view that there was an inevitable loss of earning capacity which should be compensated by a Smith v Manchester –type award in a substantial sum.
8. In presenting his claim, the claimant plainly faced difficulty in establishing that David Howell was a proper comparator and that his level of earnings over the years was indicative of those which could have been expected on the part of the claimant. However, two further practical difficulties had to be overcome in order to prove that, following the initial period of recovery and readjustment immediately following the accident in June/July 1995, there was an adverse effect on his golf in the long term. First, between August 1995 and October 1995 he competed in five non-Tour events, one of which he won and in two of which he secured a second and third place respectively. These were good results which did not suggest any decline in the claimant's standard of play. They were expected to be a springboard to success once at the Tour School in October 1995, though such was unfortunately not the case. Second, in June 1996, the claimant was injured in a road traffic accident in Scotland in which he suffered damage to his knee, neck and shoulder. The neck and shoulder were soon better. However, pain continued in the knee which still caused some discomfort to the claimant, albeit slight and variable some four years after the accident. It was the claimant's case that, following the road accident, he was able to play golf again without any significant difficulty after only two weeks, and there was no suggestion in the medical reports that the knee injury was an impediment to his golf. There was nonetheless a question mark over the influence of the accident, and the effect of the knee injury in the period following the Scottish accident, which was explored in some detail at trial.
9. The judge had no hesitation in rejecting David Howell as a direct comparator. He was six years younger than the claimant. In 1993 he was the British Boys' Champion. He had played Walker Cup golf. Like the claimant he turned professional in 1995, but he obtained his European Tour card immediately and had held it ever since with escalating earnings from £138,000 in 1997 to £555,000 in 2001 before a significant drop to £190,000 in 2002 when he fell from 14^th to 74^th in the European rankings.
10. The judge therefore concentrated first upon the issue whether, post-accident, the grip of the claimant required adjustment and/or was so affected that it produced an adverse effect upon his game once he was playing competitive golf again. Second, if so satisfied, whether and to what extent the claimant had lost the chance of achieving a substantially higher level of earnings prior to trial and in the future, as to which the figures shown in respect of David Howell were some indication at least of the level which might be attained by more successful players.
11. As to the first issue, the judge felt unable to accept the claimant's own assessment of the position. That is not to say that he found him a deliberately misleading witness; but simply that his (the claimant's) assessment of the effect of the injury upon him was unduly pessimistic. On the basis of the medical evidence and, indeed, the evidence of the claimant himself, the judge found that there had not "been anything more than an imperceptible movement in his grip, if that". Nor did he find that the claimant's confidence had been damaged by the accident, at any rate to any extent which adversely affected his play. He said:

"I cannot accept that it would have been or that it was. The claimant is not advanced as a man with an in-built tendency to nerves or a lack of confidence. He played at least as well in the later part of 1995 as he had done before the accident. There was, thus, no immediate cause for disappointment at the immediate consequences of the accident. Rather the reverse; he was doing well and better."

12. So far as the claimant's failure to qualify for the Tour was concerned, the judge made the point that 1995 was, in that respect also, a better year for the claimant in the sense that, whereas he had tried but failed to get to the school in 1993 and 1994, he got to the school in 1995 despite the accident, albeit he failed to get his card.
13. The judge heard from rival experts for the parties, as well as from the claimant. Broadly, it was the view of Mr Dennis Pugh, an experienced coach and former Tour professional that, even the most minute of grip changes could mean, and in the case of the claimant must have meant, poorer ball striking and loss of confidence with consequent higher scores and less prize money. For the defendant, Mr Andrew Murray, a PGA professional and coach considered that, despite any necessary grip change, the claimant had not failed to progress in the manner reasonably to be expected of him and that the injury had had no effect upon his long-term performance or potential, his problems in succeeding on the European Tour depending not upon difficulties with his grip but, if anything, upon the maintenance of consistency over the four rounds of a championship. In the light of these rival views, the judge expressed concern that neither expert was giving evidence upon the basis of having seen the claimant play. The judge rightly stated that, to be able to give useful evidence on the question of whether the claimant's grip had in fact adversely affected his golf, required close observation of his play both before and after the accident. However, the claimant's long-time coach and friend, who would have been in a position to give evidence on that score, had not been called. In those circumstances the judge stated that he was not persuaded that any adjustment in the claimant's grip had had any significant impact on his ability as a player. He said:

"I have no evidence which would lead me to believe that his career would have followed a different path to that which it has. There was no rising level of achievement which has been modified. The picture has been essentially the same. Our rule is that a claimant must prove his case, but here the proposition that his career has been damaged could and can only rest upon guesswork."

14. It seems to me that, on the state of the evidence to which he had listened for four days, that was a view to which the judge was entitled to come. In refusing permission to appeal on paper, I stated that, I could not see that the judge misunderstood the issues or the evidence in deciding as he did, or that he was bound on the evidence before him to have found that the injury had any significant adverse effect on the claimant's golf. I remain of that opinion.
15. The grounds of appeal, as drafted, assert as follows:

"1. The learned judge was wrong to conclude that there was no evidence to suggest that the Appellant's play had not (sic) been affected.

2. The learned judge was wrong to conclude that the injury in Scotland had affected his play (other than in the immediate short term) when there was no evidence to support this assertion.

3. The learned judge's findings were manifestly wrong having heard the evidence."

16. Ground 3 adds nothing to grounds 1 and 2. So far as ground 1 is concerned, I assume that the word 'not' is redundant. The point made appears to be based on a misunderstanding as to the content of the judgment at a stage when counsel depended upon their note of judgment for the purpose of drafting the appeal. The transcript shows that the judge did not so express himself. What he actually found was that there had been no more than an imperceptible movement in the claimant's grip and that he was not persuaded that any such movement had had any impact on his ability as a player. He later stated:

"I have no evidence that would lead me to believe that his career would have followed a different path to that which it has."

17. Before us, Mr Stewart QC modified his argument under ground 1 to an assertion that the judge's conclusion was against the weight of the evidence. He submitted that, with the injured little finger slightly shortened and a numbness in its tip, it was inherently improbable that there had not been a change of grip which affected the claimant's play to some extent and, in particular, that the claimant suffered a loss of confidence as a result, as he had asserted. Given the agreement of the experts and the acceptance by the judge that, at the claimant's level of professional golf, the amount separating one player from another in terms of stroke play and ability is small, the overwhelming probability is that the claimant suffered disadvantage and some impairment of his game as a result of the injury. Mr Stewart submitted that, unless the judge rejected the claimant's evidence as false or deliberately exaggerated (which he did not) the only realistic conclusion to which he could come was that the claimant's grip had been adversely affected and confidence significantly damaged.
18. Having read the evidence and the judgment, I do not consider that this submission can succeed. It was of course the case that, by trial, having failed to achieve a level of success to which no doubt the claimant confidently aspired upon turning professional, his honest, but subjective, assessment was that which he asserted. However, the question for the judge was whether or not the burden of proof which lay upon the claimant to demonstrate some adverse long-term effect upon his golf had been discharged. This required a finding in the claimant's favour upon the balance of probabilities which the judge found himself unable to make on the evidence before him, in the absence of an objective assessment supportive of the claimant by an expert or fellow professional who knew the claimant's game both before and after the accident. In that respect, the obvious candidate had not been called. Without such evidence the judge clearly preferred the assessment of the defendant's expert who could find no evidence or pattern in the claimant's subsequent career which showed that he had not reached the standard which he might reasonably have been expected to achieve but for the accident.
19. So far as the second ground of appeal is concerned, Mr Stewart made two points. First, he criticised as contrary to the evidence what he dubs the judge's 'conclusion' in relation to the Scottish accident that, after the initial few weeks' recovery there must have been some continuing adverse effect on the claimant's golf as a result of his knee injury. Mr Stewart submits that this was not supported by the medical reports or the claimant's own evidence. Second, he submits that, given the judge's willingness in the face of the evidence to find some adverse effect on the claimant's game as a result of the Scottish injury, his refusal to find long-term effects as the result of the dog-bite to the claimant's finger was, effectively, perverse.
20. I find nothing of substance in this ground of appeal.
21. The passage in the judgment relied upon by Mr Stewart comes at the end of a long review by the judge of the considerable attention which had been paid during the trial to the events following the Scottish accident, the defendant having relied upon material in the file of the Scottish solicitors, and, in particular, material in an attendance note which suggested that, in February 2000, the claimant was still experiencing some difficulties with his knee for which he was obtaining physiotherapy. The judge rejected the defendant's charge of lack of frankness on the part of the claimant so far as his special damage in the Scottish action was concerned, but he added:

"However, if, four years following the road traffic accident, the claimant was still suffering some pain, albeit slight and albeit bearable, in his knee, I do have difficulty in accepting the statement which he made in the witness box that after his two weeks' lay-off in 1996 he was able to play golf again without any significant difficulty. I think that that is reinforced by those passages, in which he was discussing the long-term influence upon his career. It seems to me difficult to accept that, if somebody has had to walk round the course in very great pain, which is what he told me, let alone with an uncomfortable neck and back as well, that his play could be quite unaffected."

22. In context, it does not seem to me that the observations of the judge assist Mr Stewart in relation to the judge's finding that the dog-bite did not itself have long-term effects upon the claimant's injury. The judge's conclusions in that regard were based upon the claimant's improved performance immediately following the accident, as illustrated by his tournament record prior to the Scottish injury. Insofar as the Scottish injury may have had any significant effect, and in particular any impact upon the claimant's earnings thereafter, it served to emphasise the burden of proof which rested upon the claimant and his need to satisfy the judge that if he was satisfied that the claimant's long-term achievement had been less than his full potential, it was attributable to the original injury, rather than any adverse effect of the Scottish injury or some other cause.
23. Since I do not consider that the judge's conclusion that there was no significant adverse effect upon the claimant's long-term performance or career following the immediate aftermath of his injury can be faulted, the question of the appropriate basis upon which to make any consequential award of damages does not arise. I would only add in this regard that, even assuming some marginal impact upon the claimant's level of future performance, there would be considerable practical difficulty in the path of any award based upon a 'loss of chance' calculation, which requires application of a percentage assessment to a particular level or bracket of future earnings. In the light of the huge spread in earnings even among those who consistently play upon the European Tour, and bearing in mind the fine margin between success and failure as a result of the character and personal qualities of the competitors as much as their playing abilities, it is difficult to envisage how any particular level of earnings could realistically be taken as a baseline for the relevant calculation. Nor could any percentage figure be selected by other than a wholly speculative exercise. In that respect, at least, it seems to me that Mr Stewart was correct to accept that, once the likelihood of some future earnings loss had been established, it could best, and probably only, be recognised in the form of a broad-brush lump sum award. However, as I have indicated, that difficult question does not arise in the light of the judge's findings.
24. Despite Mr Stewart's full and vigorous submissions I would refuse permission to appeal.

Lord Justice Rix:

25. I agree.

Lord Justice Carnwath:

26. I also agree.