England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE WILKIE QC)
(SITTING AS A DEPUTY HIGH COURT JUDGE)

		Royal Courts of Justice Strand London, WC2
		11th February 2004

Wednesday, 11th February 2004

1. LORD JUSTICE KAY: Doctor Benjamin Chang appeals against the decision of His Honour Judge Wilkie QC, sitting as a judge of the High Court, to which court Dr Chang's claim for personal injuries against the defendant was transferred for trial only from the Barnet County Court. On 21st February 2003 the judge awarded the appellant £28,413.67 and the appeal is against the quantum of the damages with reference to the element included in the total for loss of earnings.
2. Dr Chang suffered injuries in a road traffic accident when his car was struck from behind by the defendant's car. The defendant admitted liability. There was, as the judge recorded, a large measure of agreement about the injuries suffered by the appellant as a result of the accident. The judge in his judgment described it in the following way:

"2. There is a large measure of agreement on the injuries sustained as a result of the accident and they are summarised in a joint report of Drs Thergoldson and Foster dated 15th January 2002 and again on 5th March 2002. His injuries were as follows:

'a soft tissue injury to the cervical spine paraspinal musculature and ligamentus structures of which recovery is incomplete. No significant head injury causing permanent problems was sustained. A full recovery from loss of consciousness has resulted.'

As to the effects of the injury, they have given the opinion that early on local pain and stiffness in the cervical spine existed and there were neurological symptoms from nerve root irritation outside the spinal canal. Later they found local pain and stiffness in the cervical spine had been ameliorated but was persistent due to incomplete healing and resolution of the soft tissue injury. Subjective neurological symptoms have likewise not fully resolved and he has suffered from depression and stress which were aggravating the pain and discomfort.

3. As far as workability and prospects were concerned, they gave the opinion that following treatment they felt that his workability and prospects would improve and could see no reason why he should be unable to continue work until normal retirement age.

4. In their supplemental opinion in March 2002, they said that Dr Chang was at present working to his limits, namely three full days of active medical work and two days of administrative work in his practice. Three full days work do appear to involve a considerable length of time at work and two administrative days are shorter not involving much driving. The inability to work these extra two days in his very full occupation are, on the balance of probabilities, due to the effects of the accident, 50% of which are physical, 50% they felt were of a psychological nature. They also stated that although not capable of working full-time at present, they felt that following treatment for approximately 6 months with a certain amount of flexibility, he should be able to work a full working day. He would still have some residual symptomatology but this should be of a minor degree and insufficient to render him incapable of working full-time, if necessary. They saw no reason why he should fail to make a satisfactory response to treatment in the absence of any demonstrable pathology."

3. There was an issue as to whether additionally the appellant suffered from tinnitus as a result of the accident. The judge found the appellant's evidence in this regard "thoroughly unreliable". He concluded that the appellant did not suffer this condition as a result of the accident which occurred in December 1997, but that the symptoms had manifested themselves several years later in 2001. Accordingly, he made no allowance for this condition in his assessment of general damages. There is no appeal against this decision, nor against the figure assessed as appropriate for general damages by the judge, namely £9,000. There was a further agreed award for special damages other than loss of earnings of £4,194.81.
4. The element of loss of earnings was, however, disputed in a number of distinct ways. As a result of the joint medical reports, it was common ground that the maximum period that could be claimed in the award for any loss of earnings was the period between the date of the accident on 9th December 1997 and September 2002.
5. On behalf of the defendant, Mr Weitzman advanced an argument that the appellant had failed to mitigate his loss in this respect by instituting a proper pain management regime earlier than he did. This argument was rejected by the judge.
6. There was no dispute that the appellant had been off work for a period of four weeks immediately after the accident, and the judge awarded £2,000 in respect of loss of earnings during this initial period. He then went on to consider the remainder of the period up until September 2002. It is in respect of that further period that this appeal is brought.
7. It is necessary at this stage to set out the evidence about Dr Chang's pre-accident work. At the time of his accident Dr Chang was 38. He was a full-time medical practitioner, being a bachelor of medicine with a further degree in obstetrics. He had a diploma in tropical medicine and licentiates from the Royal Colleges of Physicians and Surgeons. In February 1997, approximately nine months before his accident, he started a private practice at Milton Keynes, some distance away from his home in Mill Hill. He explained in his witness statement, which was adopted as his evidence-in-chief, that his practice grew very quickly because it was the only private medical practice in the three counties of Buckinghamshire, Hertfordshire and Bedfordshire modelled on similar private practices in central London. Within three months he had opened a second practice in Luton town centre, and by the date of his accident he had already made plans to open a third surgery in Northampton shortly after new year 1998. He said that he would work five and a half days a week and he commuted to one or other of his practice centres and then sometimes travelled on to the other by car, covering about 125 miles per day on average.
8. Following his return to work it was his case that he had been considerably handicapped in building up his successful practice. On any view, he had succeeded in a substantial improvement in his practice over the ensuing years, but it was argued that the rate at which it had improved was slower than it otherwise would have been and that as a result there was a substantial loss in his earning power.
9. One of the principal limiting factors was that he could no longer drive the appreciable distances involved on a daily basis, and as a result of that and other factors the number of days upon which he could travel to his surgeries and conduct consultations had to be substantially reduced. The evidence was, and there was no dispute about this, that it was thereafter limited to three days a week. The other two days, he described, he would spend at home, where obviously he could do no consulting work and was limited to doing any administrative tasks in relation to the practice that needed to be done.
10. His practice had developed after the accident to include a large volume of reporting work, both of a medico-legal kind and also of other types. These necessarily required time spent in producing the relevant reports, and a substantial part of the cross-examination of Dr Chang, when he gave evidence as the only witness in the case, related to the time involved in such work. Dr Chang explained that in order to keep up his credibility as an expert witness if he was required to give evidence in court, it was necessary for him to ensure that 50 to 60 per cent of his workload remained mainstream general practitioner work. It was Dr Chang's case that as a result of the accident not only had he failed to build up his practice, but also his taking on the surgery at Northampton had been unsuccessful and within 10 or 11 months of its opening he could no longer cope with the third surgery and had closed it.
11. The judge, having heard detailed cross-examination of Dr Chang, was required to make findings of fact. The cross-examination of Dr Chang had involved looking at his workload as it was after the accident, determining the number of patients that he was seeing in the three days when he did consulting work, and making calculations as to the amount of time that he would inevitably have had to spend in doing the various administrative tasks, and particularly in the making of his reports.
12. Having heard that evidence, the judge, in his judgment dealt with these aspects of the matter. He said:

"26. Beyond that period, the claimant's case in his pleading in his statement and in his account to the various medical practitioners is that he worked three days a week at his consultancy work and two days a week at home on administration. He says that before then he had worked 55 hours a week. Dr Chang said in oral evidence that there came a time, he was unable to say precisely when, but in my judgment the probability was that it was halfway through 2001 when by use of enhanced software, he was able to concertina the vast majority of his work, including administration and writing reports, into three days a week and rested and recuperated for the other two. He says that the reason for this was that whereas before the use of the software it took about an hour to do each relevant report for medical, legal, insurance and occupational health purposes, after that he was able to do it in some 15 minutes. I find that is an unduly optimistic estimate, but I do accept that he probably cut in about half the time it took him to do these reports.

27. Dr Chang's practice always contained two elements, mainstream GP private practice and referral work for these other purposes. He told me, and I accept, that he has to keep a balanced practice so that at least 50-60% is mainstream GP work. This is necessary in order to maintain his credibility as an expert witness. It is the case, however, that this referral work does require him to write reports which only he can do, even though he does employ administrators to do the other day to day administration tasks such as liaising with clients and billing them. It is clear from his accounts and the figures culled from his diary that his practice has thrived and prospered since 1997.

28. I find that Dr Chang is a highly ambitious and driven man, very energetic and very resourceful. I am perfectly satisfied that between the date of the accident and the middle of 2001 he reorganised his time in such a way that he was able to see as many patients in three days as he was previously able to see in five and that his administrative work took up the other two days. Therefore, during that period of time, I find there is no loss of income. Once, however, his software came on stream in mid 2001, I do conclude that there was some space freed up and doing the best I can, in my judgment, he would have increased his turnover during that period, some 15 months, by 10%."

13. The judge then went on to do a calculation of what the loss was arising from that particular period. There is no issue that if his findings of fact were right, then the calculation that was made was the appropriate one. Thus, this appeal turns entirely on the findings of the judge to which I have just referred, which it is argued were not findings that he could properly make on the evidence that he had heard.
14. The available evidence consisted of the various medical reports, the statement of the doctor, the evidence that he gave orally in cross-examination and the various accounts and practice documents that had been put before the judge.
15. Mr Oakley, on behalf of Dr Chang, submits, firstly, that the judge was wrong to reject medical evidence which was of assistance in this regard. For my part, I do not begin to see the argument in relation to that. The doctors were able to say, and did say, that Dr Chang could not work on the basis that he had worked before for the full five days a week. They thought it was perfectly reasonable for him to do consultancy and active medical work for three days a week and thereafter to spend the other two days in working on administration. The judge accepted that evidence and in no sense was critical of Dr Chang that that was his working pattern. What the judge had to resolve was whether the consequence of that was that Dr Chang could earn less than he otherwise might have been able to do in his practice. It does not seem to me that the medical evidence in any way assisted in resolving that matter.
16. Thus, essentially it was the evidence of Dr Chang that had to be considered and also of the various documents that were available. Dr Chang, in a relatively short statement, had advanced his case, and it is clear that Mr Weitzman, on behalf of the defendant, examined the documentary evidence and cross-examined on the basis that a different picture emerged when one looked at the documentary material to that which was being advanced. He went in some detail into the number of patients that Dr Chang was seeing on the three days that he could work. The figures that had been provided by Dr Chang proved to be unsatisfactory, and Dr Chang himself was to accept that, and Mr Oakley acknowledges that fact before us today.
17. The result was that on the three days that he was working, if one looked at the number of patients he was seeing, he was seeing them for periods of 15 minutes a time. He acknowledged that that would not have covered the full number of appointments and that, in order to see the number of patients he had, he had had to double book some of the patients and therefore they had to be fitted into the working day.
18. On any view of the matter, that was a long working day. The doctor himself described how he would work in the early hours of the morning until late at night, and bearing in mind that his journey must have been taking him upwards of an hour in each direction, and even more if he was going to the further outpost of the two, it is quite apparent that for those three days he was working a very full day.
19. He contended that in relation to the reports he was able often to write the report and see the patient all within the space of the quarter of an hour that was allotted to them. Bearing in mind that these were referrals not of people who he was treating regularly but of new patients, taking into account the responsibility that he would have had in satisfying himself of the correctness of the matter he was going to report about, and the need to produce a report which could be followed, it perhaps is not surprising that the judge in his conclusions concluded that he was spending significantly longer than that.
20. The other aspect of cross-examination that was significant, apart from the calculations relating to the number of patients, were calculations as to the number of reports that the appellant had done. There was some doubt about the time when his practice had developed in relation to reporting. At one point in his evidence he put it that it had not really started to take off until 1999 and, as Mr Oakley puts it to us, there would have been some build up before he was dealing with hundreds of patients. But he had been cross-examined about a curriculum vitae that he had put in, which indicated that he had seen something of the order of 2,700 patients. He himself said that that would have been in the first 18 months when he was doing this work, and he himself put that as being the period certainly covering 1999, possibly into 2000, but maybe a little earlier than that. A simple calculation, on the basis that this was done in a 18-month period, showed that throughout the whole of this period, during which time he was saying that it was building up, he was doing something of the order of 34 or 35 reports a week. Even allowing for those to take a quarter of an hour, it was obvious that they would take some significant time.
21. The argument advanced on his behalf is that the judge was wrong to reject his evidence that for much of the two days he was either doing administrative work that others could have done, or, alternatively, was having to rest because of the strain that he was under as a result of his accident and the work that he was having to do on the other three days in the week.
22. I am satisfied that in paragraph 28, to which I have already referred, the judge rejected that that was the situation. He concluded that what had happened was that Dr Chang, someone he acknowledged to be both energetic and resourceful, had managed to reorganise his working life in such a way that he could pack into three days all the consulting work that he needed to do, and that the other two days had then been taken up with the administrative work, as the judge put it, but which inevitably included the writing of the reports.
23. That conclusion is challenged. It is said that the judge was not making clear that the full time was being used in that way. That I cannot accept, because he then went on to deal with the situation once the software came onstream in mid-2001 and said that this freed up extra time. If that was freeing up extra time, it meant that before there was, in effect, no extra time.
24. Accordingly, it seems to me that the judge was making clear findings that what had happened was that the resourceful Dr Chang had been able to reorganise his working pattern in such a way that he could spend his time with three days in the surgeries and then two days doing the rest of the work that was a necessary part of the type of practice that he had. That, it seems to me, was a conclusion he patently could come to on the evidence that he had heard, particularly the cross-examination to which I have already referred. In those circumstances, it seems to me that the judge was entitled to reach that conclusion.
25. It is argued that the judge ought to have looked at the earlier part in rather closer detail and seen what the position was as the work was building up. Having regard to the unsatisfactory nature of the evidence that was put before the judge, it seems to me inevitable that the approach he was going to have to adopt was a broad brush approach. He did that and I can find no fault with his conclusions in respect of the working pattern adopted after the accident or his simply treating the whole period in that way.
26. The judge went on and appreciated that once software which would assist the doctor to do his administrative tasks came into being, this would have freed up some time that could have been turned over to seeing other patients and thereby increasing his income, and that he had lost the opportunity to do that. Accordingly, the judge made an award in respect of that, and I can find no fault in his approach in that way.
27. These were essentially issues of fact for the judge to make. He saw Dr Chang. On any view of it, in some respects Dr Chang's evidence was unsatisfactory, and he reached conclusions which, in my judgment, were perfectly open to the fact finder in a case of this kind. For those reasons, it seems to me he that this judgment was a perfectly proper one, one that the judge could properly reach and it follows that this appeal must fail.
28. LORD JUSTICE WALL: I agree.
29. LORD JUSTICE THORPE: I also agree.

Order: Appeal dismissed with costs assessed in the sum of £4,500.

(Order does not form part of approved judgment)