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 SLOUGH COUNTY COURT
(DEPUTY DISTRICT JUDGE DUNCAN)

		Royal Courts of Justice Strand London, WC2
		14 March 2003

1. LORD JUSTICE KENNEDY: This is a defendant's appeal from a decision of Deputy District Judge Duncan, sitting at Slough County Court, who, on 17 October 2002, assessed the damages to be paid by the defendants to the claimant at a total of £46,175.15 inclusive of interest. The appeal relates only to four heads of damages to which I will come in a moment. Claim
2. First, I must say something about the nature of the claim. The claimant was born on 24 February 1962, so that he is now 41 years of age. At about 3.15 p.m. on 9 December 1999 in Holborn, London he was riding his motor cycle in the course of his employment with Kuehne & Nagel as a motor cycle courier. He was overtaking a line of slow moving traffic when a van owned by the first defendants and driven by their servant the second defendant moved out and there was a collision. The claimant sustained serious fractures of his left wrist, and unfortunately he is left hand dominant. The wrist required open fixation with wire. That operation was eventually performed, after being postponed on a couple of occasions, on 22 December at Reading. He was allowed to go home the next day, but his wrist was in plaster for two months and he did not return to work until 15 April 2000.
3. It was quickly apparent that he could not continue to ride a motor cycle without pain and without doing damage to his wrist. So he was transferred by his employers to a job in a warehouse where he found that his wrist got very cold, and he was unable to do that work. He gave up employment with Kuehne & Nagel Ltd on 15 March 2001. In the following month, on 26 April 2001, he obtained employment with Minstel Cleaners, cleaning public houses in the morning and offices in the evening.
4. The evidence suggests that he was still in that employment when this matter was being considered by the deputy district judge. Proceedings were commenced on 11 September 2001. On 13 February 2002 it was recognised that the issue of liability had been resolved by consent on the basis that each of the parties was one half to blame for the accident. On 1 May 2002 the court recorded that the damages for pain, suffering and loss of amenity had been agreed in the sum of £20,000, that agreement specifically excluding any award in respect of loss of earning capacity or congenial employment.
5. Before the deputy district judge there were issues in relation to a number of heads of damages and awards were made for past losses, none of which awards are any longer in dispute. There were awards for care and assistance, earnings to date, travel expenses, extra costs of an automatic car and car running expenses. Awards were also made for future losses and most of those awards are no longer in dispute, namely the cost of running a motor car, the cost of future surgery to his wrist and compensation for earnings when he would necessarily be off work if undergoing surgery to his wrist as well as an award in respect of handicap in the labour market.

Future Earnings

6. The first matter still in dispute is the award made in respect of future loss of earnings. The judge had before him in relation to this issue practically no evidence. All that he knew was that in answer to a question posed on behalf of the defendants, namely -

"Please list the jobs you had had in the 5 years before starting with Kuehne & Nagel, indicating for each job the date on which it started; the date on which it ended; the nature of the job; and the rate of pay" -

the answer filed on behalf of the claimant was:

"Before working for Kuehne & Nagel my employment was, to the best of my knowledge, as follows:

From May 1999 to August 1999 I worked at the Fun Factory. I operated a sewing machine and was paid approximately £13,500 per annum.

From 1996 to 1999 I worked for a company called Eurolines. The work was mainly administrative but I was required to load vehicles in the evenings. Here I earned approximately £13,000 per annum.

Finally as far as I can recall from 1994 to 1996 I worked for A J R International. Here I was employed as a courier driver. My earnings were approximately £12,000 per annum."

The answer, it will be noted, does not indicate whether the sums earned were gross or net or whether the periods of employment were consecutive or whether there were intervals between them. Certainly, as Mr Roussak for the defendants points out, there was a gap between August 1999, the end of the employment at the Fun Factory, and the beginning of the employment with Kuehne & Nagel on 18 October 1999.

7. With Keuhne & Nagel the claimant's gross earnings, inclusive of overtime, were £14,757 per annum if one projects what he earned in just over seven weeks to an annual basis. Net, that would amount to £11,430. But he did only work for just over seven weeks for those employers. Previously, as I have indicated, his earnings had been £13,500 per annum, either gross or net, when working at the Fun Factory. His average earnings with the employers to whom he went after his accident - the cleaning company where no overtime was available - have turned out to be £9,100 per annum net. There was no evidence at all before the district judge as to whether this claimant could now, with his damaged wrist, undertake, for example, any of the jobs he did before joining Keuhne & Nagel. Clearly he could not easily do a job which involved any stress upon the left wrist. But, it is worth noting that one of the jobs was, for example, mainly administrative. The judge in course of his judgment said this:

" ..... had he been able to go out post-accident and acquire a better paid job he would have done so."

Mr Roussak rightly points out there was simply no evidence before the judge to substantiate that finding. There was no assertion in the pleadings; there was nothing in the statement filed on behalf of the claimant. When the claimant came to give oral evidence he was not asked about that matter at all.

8. In order to calculate on the multiplier/multiplicand basis, it was necessary for the judge to have before him reliable evidence as to the claimant's pre-accident earning capacity and as to his post-accident earning capacity.
9. In relation to the pre-accident earning capacity, the judge accepted the Kuehne & Nagel figures. As I have indicated, the period of employment was so short and the claimant's work history was so disjointed that the Kuehne & Nagel figures should not readily have been accepted as an appropriate calculating base. For example, if one had gone back for 12 calendar months from the date of the accident the judge would have included in that 12 calendar months necessarily not only the seven and a half weeks during which the claimant worked for Kuehne & Nagel but also the period when he worked for the Fun Factory and the period in between. And necessarily the average would have been considerably less than that which the judge thought to be appropriate as a sound basis for calculating pre-accident earning capacity.
10. In relation to Kuehne & Nagel, turning to the future, the judge found that he would be unlikely to have stayed with those particular employers for more than three years. As Mr Roussak pointed out, that itself was a somewhat generous finding, having regard to the periods of time for which this claimant had been engaged by previous employers. There was simply no evidence before the judge, as I have already indicated, as to whether or not in the period after the hearing in the court this claimant would have been able to get better paid employment than he had with the cleaning company with whom he was employed. He might have been able to do the sort of administrative work he had been doing with Eurolines. The judge was not in a position to know. At some future date if he underwent surgery in order to fuse his wrist he would then be relieved of any pain which might be attributable to osteoarthritis in the wrist. He would then also be in a position to do, according to the medical evidence, quite heavy work.
11. In order to make his calculation the judge simply deducted the £9,100, which the claimant was earning in his current employment with the cleaners, from the £11,430 which the claimant had been earning during the seven weeks prior to the accident in order to yield a figure of £2,322.32 to which the judge applied a multiplier of 18.03 which would be appropriate to a 40-year old man who was expected to work to the age of 65 years, taking into account only the incidence of mortality. That produced a figure of £41,871.43.
12. Mr Roussak, for the appellant, contends that in this case the degree of uncertainty was such that the judge should have simply declined to apply a multiplier/multiplicand approach to loss of future earnings. He invited the judge and he invites us to have regard to the decision in Blamire v South Cumbria Health Authority [1993] PIQR Q1 where the Court of Appeal upheld a decision of Mr Justice McCullough who, on the facts of that particular case, refused to adopt the multiplier/ multiplicand approach. The judge sought to distinguish that authority because he said, rightly, that in the case of Blamire the claimant was a woman who was liable to take and indeed had taken, time off work in order to have a family and who had a desire to work part-time. Neither of those factors applied in relation to the claimant in the present case.
13. Mr Menzies submitted before us that the judge was entitled in this case - where he was dealing with a man who would normally be expected to be in regular employment - to adopt the approach that he did.
14. I, for my part, agree with the defendants' submission. The claimant here simply had not laid before the court the materials which might well, had they been laid before the court, have enabled the judge to adopt the approach that he did. But the materials were not there. In the absence of those materials it was not appropriate to attempt to use figures which were patently, for the reasons I have endeavoured to explain, unreliable.
15. I accept that because of the injury to his left wrist this particular claimant does have not only a loss of earning capacity for which he was already compensated in the sum of £6,750 but also an on-going reduction in his ability to earn. It is an on-going reduction which it is extremely difficult to evaluate. In consequence, it can only in these circumstances be evaluated by awarding him a round sum, as was done in Blamire.
16. In my judgment, an appropriate round sum in this case would have been the sum of £12,500. Accordingly I would set aside the award in respect of this head of damages of £41,871.43 and substitute for it the sum of £12,500.
17. I turn now to the award in respect of the claimant's inability to do jobs at home, the DIY award. The claimant's case was not that he was unable to do any job but that there were heavy jobs he could no longer do. He is left-hand dominant and he was unable to do jobs such as those which he identified when he came to give evidence. He also produced at court a document which was a letter from Colin Weston, dated 18 March 2002. Mr Weston is, it seems, a builder. He had produced figures for miscellaneous works exclusive of materials. Mr Roussak submitted to us that the words used in the estimate - "all materials to be supplied FOC" - may have suggested the cost of materials was included in the estimate. I do not read the estimate in that way. The jobs to which Mr Weston's estimate refers were replacing a boundary fence, felting a garage roof and re-surfacing the drive of a house. The claimant's evidence was that he had done such jobs in the relatively recent past and those were the sort of jobs which he could no longer do. Mr Weston indicated that the cost of doing those three jobs would be something in the order of £1,236. The submission originally was that they were the sort of jobs which would have to be done every five years or so, and therefore there was an on-going disability to the extent of £250 per year. The weaknesses of that approach were recognised at the time of the hearing and the judge declined rightly, in my judgment, to attach a great deal of weight to the invoice.
18. Mr Menzies, on behalf of the claimant, invited our attention to what the claimant said when giving evidence about this aspect of the case. He was asked about the invoice to which I have referred, and he said:

"A Yes, I did it all myself before the accident."

He was asked what he had said to Mr Weston, and he said:

"A I just asked him to give me a quote.

Q Do you say you were able or unable to do those three DIY tasks following the accident?

A I am unable to do them.

Q Are you able to do all your other DIY tasks apart from those three or not?

A Small simple things I can still do. If there is anything like plumbing work or putting a kitchen cabinet in or something like that I would not be able to do it."

19. The judge accepted, as I indicated, that there was here an on-going disability. I, for my part, have no difficulty in coming to the same conclusion. But the judge then had to evaluate the extent of that on-going disability. He came to the conclusion an appropriate figure to ascribe to it would be £250 per annum. I have no difficulty with that part of the judge's conclusion. Having arrived at that point, the judge went on to apply to the figure of £250 per annum a multiplier of 20.21 which would be appropriate to the loss of earnings of a man of the age of 40 who was expected to work to the age of 70 years. In my judgment, that was an inappropriate multiplier having regard to the nature of the tasks which this claimant cannot perform. We are talking here only about heavy jobs, the sort of jobs which with increasing age the defendant would be unlikely to have performed himself in any event as time went on. Furthermore one has to bear in mind the factor, to which I have already referred, namely, if he wrist is fused at some time in the future there will not in fact be any significant disability in doing heavier tasks compared with any other person of his then age.
20. In those circumstances it seems to me that the appropriate multiplier to take in relation to the sum of £250 per annum should be lower than that chosen by the judge. I regard the appropriate multiplier as one of 15 years purchase which would yield a total of £3,750 as opposed to the £5,052.91 the judge awarded under this head.

Loss of Congenial Employment

21. I turn to the claim for loss of congenial employment. The evidence as to the congeniality of the employment was sparse indeed. In the particulars of claim the claimant asserted thus:

"The claimant very much enjoyed riding his motor cycle (it was a hobby of his) and therefore found his work as a motor cycle courier extremely satisfying."

Nothing more was said about the matter either in his statement or when he was in the witness box. However it is right to say that he did personally sign the statement of truth at the end of the particulars of claim. Therefore there was some evidence before the judge to indicate that he enjoyed riding his motor cycle and found his work as a motor cycle courier extremely satisfying. It does inevitably beg the question as to why, if it was the sort of work he found extremely satisfying, it had taken him about 20 years of working life to reach that employment, never having previously worked from a motor cycle before. When the judge came to deal with the matter he dealt with it in a way that I, for my part, find unsatisfactory. The judge said this:

"The next head to which I turn is that relating to loss of congenial employment. It was common ground between the parties that I must disregard the loss of ability to ride a motor cycle per se because this has already been taken into account in the general damages award, but that I can otherwise take it into account."

Thus far, I have no problem. The judge continued:

"It is quite clear from the evidence, and I accept, that motor cycling was a very important part of the claimant's life. The way he put it is 'motor cycling has always been my life', and I accept that he went on motor cycling holidays with his friends annually over the past twenty years. He can no longer do that. I accept that he can no longer ski as he liked to do before and that generally there has had to be a change in his social life by virtue of his not being able to use his motor cycle. Taking all these factors into account I consider that an award of £2,000 would be appropriate under this head."

22. Neither counsel before us sought to sustain the judge's reasoning process. The reasons he gave for making the award are plainly irrelevant. The award can only be made to compensate a claimant for the loss of congenial employment, as the head of damages indicates. Any award for the interference with the satisfaction which a claimant gets, for example, out of the use of a motor cycle in his ordinary social life has to be compensated for under the head of pain, suffering and loss of amenity. And yet those were the matters to which the judge referred when making this particular award. As it happens, the judge had a further opportunity to consider whether his reasoning process was appropriate because at the end of his judgment Mr Roussak sought permission to appeal and singled out this particular head of damages as one of the matters he regarded as being worthy of further consideration by this court. He said:

" ..... the reasons you have given for your award of £2,000 for loss of congenial employment bear no relation to the claimant's employment."

The deputy district judge then said:

" ..... it seems to me that the restriction in his wrist movement must have the effect of limiting or handicapping him in employment. It interferes and prevents him from going on his motor cycling holidays. It prevents him from going skiing and it generally interferes with his way of conducting his social life."

In effect, all the judge did was to repeat the irrelevant reasons he had given earlier for making an award under this head.

23. Mr Menzies submits that although the reasoning was inappropriate, the judge was right in his conclusion; he should have made an award under this head and given appropriate reasons for it. It might have been appropriate to make an award under this head if the claimant had been employed for a considerable length of time in this capacity and genuinely was a person who felt disadvantaged and aggrieved as a result of the loss of congenial employment. That could not possibly be said in relation to someone who had only been doing this work for some seven weeks or so. In those circumstances I, for my part, would not have made any award under this head, and I would set aside the award of £2,000 made by the judge.
24. I turn to the increased costs of motoring and, in particular, the costs of a car with automatic transmission. Prior to his motor cycle accident the claimant had not had a car. He had only his motor cycle. His girlfriend had a car so, no doubt, he had the advantage of it from time to time. Because of the accident and the damage to his left wrist it is no longer practicable for him - certainly in the short term - to ride a motor cycle, so he bought a secondhand Audi motor car for £3,495. The judge accepted that to buy a car with automatic transmission as opposed to one with manual transmission added some £495 to the cost. At this juncture there is no longer any argument in relation to that. That extra £495 forms part of the damages awarded for losses to date.
25. The question remained as to replacing the car which the claimant now currently owns. The judge held that but for the accident the claimant might well have continued to ride his motor cycle until the age of 70 years. He therefore concluded that until that time it would be appropriate to grant him, from time to time, the additional costs of replacing his current motor car with another car with automatic as opposed to manual transmission. In other words, the £495 would recur at what he envisaged as being five-year intervals between now and the age of 70.
26. Having approached the matter in that way, the judge then thought it necessary and appropriate to discount the conclusion at which he arrived in order to arrive at a total of £1,930.50.
27. Mr Roussak submits that the judge was wrong to approach that matter in that way. There was, in reality, no evidence to show that the claimant would go on riding a motor cycle until the age of 70; of course, he is right about that. But the judge could have taken the view that he was riding the motor cycle at the age of 40 and clearly enjoyed it, and in the absence of evidence either way it was reasonable to conclude that he would go on doing so for some years to come.
28. Furthermore Mr Roussak submits the judge failed to take into account the increased sale value of a car with automatic transmission. As to that, Mr Menzies submits that the figures in the publications to which our attention has been invited show that in fact cars with automatic transmissions devalue slightly faster than those with manual transmissions. Accordingly he submits that although it may be an oversight, the judge was perfectly entitled not to take into account the increased sale value of a car which the claimant had already owned, particularly, as Mr Menzies puts it, bearing in mind that he is not dealing with new cars but with cars which were already secondhand at the time when he purchases them.
29. Mr Menzies goes on to submit that although the judge's approach to this matter may have been something of a broad brush approach, the conclusion to which he came was itself a conclusion which can be justified by a more carefully calculated approach, as can be seen in paragraph 32 of his skeleton argument where he dealt with a recurring expenditure of £495 over a period of years between the age of 40 and the age of 70. The calculation set out at sub-paragraph (a) - which speaks for itself, and I need not repeat for the purposes of this judgment - results in a figure of £2,071.88. And approaching the matter in a slightly different way, with an annual figure of £99 and a multiplier up to the age of 70, one gets a figure of £2,000.79. Both figures are marginally above that awarded by the learned district judge.
30. I regard those two calculations as being of assistance in the approach which should be adopted by this court to the award made by the deputy district judge under that head. I, for my part, do not regard that award as being inappropriate and I would not disturb it. Accordingly to the extent I have indicated, the appeal is allowed.
31. MR JUSTICE NEWMAN: I agree with my Lord's reasoning and with the result he proposes. I wish only to add a few words on the evidence in this case. I share his concern about the way in which the evidence for the claimant was presented. If the method of preparation and presentation adopted in this case reflects a common circumstance in connection with personal injury cases in the district court it has, in my judgment, departed too far from the basic principle that a claimant must prove his case by evidence capable of supporting the conclusions to which the court is invited to come. It may be that the days of a formal advice on evidence are long gone but the need which such advice fulfil remains. Someone on each side in litigation such as this, with sufficient skill to do so, must, at some timely stage before trial, draw up a list of the issues which remain contentious and then consider whether or not there is evidence available to meet those issues. The lack of concern evident from the judgment in this case from the deputy district judge about the sufficiency and quality of the evidence and the apparent alacrity with which he felt able to make assumptions gives cause for concern. No doubt he had in mind the principles often expressed to the effect that judges must often simply do their best or approach an issue on a broad brush basis, but these principles have limitations. There is a need for evidence and there is a need for an analysis of such evidence; then the judge can make findings of fact by drawing inferences and doing the best he can, but on the evidence which is available.
32. Approaching a matter with a broad brush does not mean an absence of material is acceptable. The broad brush approach merely enables the court to do justice where there may be gaps in detail, which normally arise because of the character of the case under investigation.
33. I agree that the appeal should be allowed in the respect my Lord has indicated.
Order: Appeal allowed