England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
Mr Justice Simon
HQ020X01733

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd March 2006

Lord Justice Waller :

1. This is an appeal from a judgment of Simon J handed down on 15 February 2005 in which he endeavoured to deal with a preliminary issue in the appellant's claim for damages against his former solicitors.
2. The appellant was injured in a road traffic accident in Shrewsbury on 20^th October 1982. He was asleep in the back of a stationary van when another vehicle driven by a Mr Johnson ran into the back of it. Mr Johnson's insurers admitted liability for the accident by letter of 16^th November 1983 and legal proceedings were issued on 30^th May 1984. On 5^th June 1996 that action was struck out for want of prosecution. On 29^th May 2002 the present action was begun against the respondents in which the respondents have admitted liability.
3. All that remained of the action against Mr Johnson was an assessment of damages, which in the result never took place. All that remained of the action against the solicitors was the assessment of damages to be assessed by reference to what damages the appellant would have recovered against Mr Johnson. Now some 23 years after the original accident, no damages having been assessed, we are concerned with a preliminary point thought to be a short cut in the assessment in the present action.
4. In part the delay in both sets of proceedings has been due to a mitigation issue which it was not for many years easy to resolve. The appellant had been severely injured in the accident, having been thrown out of the back of the van and on to the roadway. He was diagnosed with having minor head injuries and scalp lacerations, undisplaced fractured sternum, compression fracture of the fourth and fifth vertebrae and possible whiplash injury of the cervical spine. He had to lie on his back for about six weeks. But, unknown initially was the fact that the claimant had also sustained what was for many years thought to be a false traumatic aneurysm of the left carotid artery. This injury was discovered in about May 1983 after the appellant experienced symptoms of turbulence in his neck while in Australia. The diagnosis of false aneurysm of the left carotid artery was first made in July 1983 by a vascular surgeon in Queensland, Dr Love. Since July 1983 the appellant has not worked or has certainly not worked in the same way as he worked prior to his accident.
5. A key issue in the litigation between the appellant and Mr Johnson was whether the appellant should have had surgery to correct what was thought by all vascular surgeons who advised between 1983 and 2004 to be the false traumatic aneurysm. Surgery would normally be recommended but prior to surgery the nature and extent of any abnormality would have to be ascertained. In the early 1980s the investigation would be by a per femoral aorta-gram (PFA) in which a catheter is introduced via the femoral artery; from about 1984 a different but lower resolution procedure – an intravenous digital subtraction angiogram (IVDSA) was available; and from about 1991, non-invasive high resolution procedure has been used – the duplex ultrasound scan (the duplex scan). In 1984 the appellant had an IVDSA by which the radiologist concluded that he had "a probable traumatic pseudo-aneurysm left common carotid proximal to the bifurcation".
6. The appellant was a vet and had done a great deal of research from which he discovered that his condition was very rare. Very few surgeons had carried out more than one or two operations on aneurysms of the carotid artery. He was always concerned as to the risk of having a PFA and always concerned as to the risk of surgery although putting it in general terms the advice from surgeons was that the risk was no greater than 1% for the PFA and less than 1% for surgery.
7. In 1991 he had a duplex scan and Mr Walker (later Professor) interpreted the same as showing an 80% stenosis (i.e. narrowing) of the artery. He advised that although the appellant had remained asymptomatic he ran the risk of a transient cerebral ischaemic attack and/or major stroke; he said the aneurysm would be bound to get bigger; and he was of the view that the risks of surgery were far less than the risks of doing nothing. This latter view had been the view of the many vascular surgeons who had advised over the intervening years; the detail is set out in the judgment of the judge but it is unnecessary to rehearse the same in this judgment. Their view was that without an operation the appellant was unfit for heavy work as a vet but that the aneurysm would not prevent him doing light work with small animals.
8. In October 1993 Counsel advised the appellant that he should obtain the advice of Mr Marcuson in order to resolve the issue of whether the appellant's refusal to have an operation on the lesion was unreasonable. Mr Marcuson did not examine the appellant or request a further duplex scan. He accepted that because the aneurysm had not significantly enlarged over the 12 years there was a case for "temporisation"; but he advised the 80% stenosis was "very worrying and the risk of occlusion very significant", and said "his own advice would certainly be to accept the risks of surgery which are probably of the order of 1%….All experienced vascular surgeons are adept at carotid endarterectomy and I would consider that a small mid-common carotid artery aneurysm to be no more difficult than that procedure".
9. The case on behalf of Mr Johnson was thus that since the risk in having such surgery was low, and once surgery had been completed successfully the appellant would be able to work as previously, in refusing to have surgery the appellant was failing to mitigate his loss. Before that issue could be tried out the case against Mr Johnson was struck out.
10. In the litigation between the appellant and the solicitors the solicitors unsurprisingly raised the issue that the damages which would have been recovered from Mr Johnson would have been reduced by the failure to mitigate.
11. On 11^th March 2003 Deputy Master Hoffman at a case management conference took the view that there was a preliminary issue that might be tried, which would assist in the resolution of the assessment of damages due to take place. He directed that:-

"The issue of whether the claimant should have had an operation for a carotid artery bypass, and if so by when, be tried as follows:

(1) before a judge

(2) with the trial of the issue to take place within the period 1^st January 2004 and 1^st April 2004 . . ."

He gave further directions in relation to the service of witness statements, experts' reports etc.

12. The trial of the preliminary issue did not come on within its trial window. It was then in August 2004 that Professor Greenhalgh obtained a further duplex scan. Radiologists interpreted that scan and Professor Greenhalgh advised that the 80% stenosis had been the result of a misinterpretation and that in fact there was a relatively minor 25-30% stenosis. The appellant did not have a false aneurysm after all. The appellant did not need an operation and indeed could work in precisely the same way as he had worked before.
13. Once the scan and the interpretation thereof was shown to Mr Marcuson he concurred in the view expressed by Professor Greenhalgh.
14. It now being clear that the appellant did not need an operation, those representing the defendant solicitors thought that a variation to the preliminary issue was required. In place of that which had been ordered by the Deputy Master they applied, and with the consent of those representing the appellant it was ordered, that the preliminary issue to be tried should be in the following terms:-

"Has the claimant failed to mitigate his loss; (1) by his refusal to contemplate having any medical treatment (and if so what treatment) and/or an operation for a carotid artery bypass and, if so, when should the claimant have had such medical treatment and/or an operation (as the case may be) and/or; (2) by his not having worked after it was appropriate for him to return to work and, if so, when should the claimant have returned to work."

15. In Tilling v Whiteman [1980] AC 1 Lord Scarman described preliminary points of law as being "too often treacherous shortcuts. Their price can be delay, anxiety and expense"; what is true of points of law is even more true of points of mixed law and fact. It can of course sometimes be beneficial to try an issue where there is a clear demarcation between it and other issues; that can often be the case in relation to liability being tried separately from damages. To try one issue relating to the quantification of damage, particularly where the quantification relates to loss of a chance, must stand a very grave risk of being a long way round, and so it has turned out to be. Consider in this instance the second question – when should the claimant have returned to work? Unless both sides were agreed that the determination of one factual issue would provide the answer to that question, it is quite unsuitable as a preliminary issue. Even if the question was understood as it indeed was, to be referring to whether it was reasonable not to work by reference to the condition of the appellant's carotid artery, there were other factors in this case which could affect the appellant's ability to return to his previous work and a dispute as to what type of work he might in fact have done even with the aneurysm as it was thought to be.
16. Unfortunately matters did not improve. The judge, having struggled to make some sense of the preliminary issue he had been asked to try, appreciated that there was nothing in the questions posed to him which reflected accurately that the damages issue so far as the action against the solicitors was concerned involved the assessment of the loss of a chance. It was in that context that during the hearing he advocated a variation to the preliminary issue identified by marking the two questions posed as paragraph 1 (a) and (b) and the insertion of paragraph 2:-

"In relation to the issues at 1 above, what is the appropriate discount, if any, to be applied to the damages that the claimant would have recovered in the underlying claim against Mr Johnson to reflect the claimant's lost chance of recovering such damages."

17. During the argument before us it became readily apparent that that was a very difficult question to answer in the general form in which it is set out. The damages to which reference was being made in the additional question were (it is accepted) damages for loss of earnings and no other. But no distinction is drawn between past and future earnings. It soon became apparent before us that in assessing chances of success there was a clear distinction to be drawn between past earnings, as they would have been at the date of the original trial (placed by both sides as in June 1996); future earnings for the period between the trial of the original action in June 1996 and August 2004 (the date by which it was now known that he was not suffering any injury to the carotid artery which prevented him working); and future earnings post that date which a court trying the original action might have been assessing without the knowledge that the appellant was in fact able to work. To add to the difficulties Mr Boyd for the appellant did not accept that there were no other factors caused by the accident which might have affected the appellant's ability to work, and Mr Simon Monty QC did not accept that there were not other factors which might have reduced the appellant's damages, such as an ability to work as a vet with small animals. In making a final evaluation of the loss of a chance of recovering loss of earnings all factors would be relevant and it hardly seemed satisfactory to divide one aspect from another.
18. The judge ultimately posed himself the following question in paragraph 51 of his judgment:-

"As liability was admitted in the underlying action, the question that arises on the preliminary issue, is, what is the likelihood in the summer of 1996 that Mr Johnson's insurers would have been able to show at trial that the claimant had acted unreasonably in refusing to have an operation after September 1995?"

19. The reason for choosing September 1995 was that that was the date of Mr Marcuson's opinion given without the benefit of the scan and the interpretation thereof available in 2004. The solicitors in their defence and counter-schedule had made it clear that they were not asserting that it could be said of the appellant that he had acted unreasonably before receipt of Mr Marcuson's advice in September 1995.
20. The judge set out the factors in favour of the likelihood of the notional trial judge holding in 1996 that the appellant had behaved reasonably in not having any further exploration or surgery in paragraph 52 of his judgment, and the counter factors in paragraph 53. Then taking account of those factors said this in paragraph 54:-

"I have concluded that in the summer of 1996 Mr Johnson's insurers would not, on balance, have been able to show at trial that the claimant had acted unreasonably in refusing to have the operation. It was, however, a fine balance since there was in my view a very significant chance that they might have succeeded in such an argument. I have further concluded that the appropriate overall discount, which gives effect to this possibility, is 40%; and that the value of the lost chance on a loss of earnings' claim is 60% of such loss as the claimant is able to prove."

21. The first problem with the above paragraph is that there is some doubt as to what precisely the judge had in mind as "the loss of earnings" to which the discount should be applied. That paragraph was in fact an alteration to the original draft, which he had handed down. There is some doubt as to the relevance of a "draft" judgment, and normally it should not be referred to, but Mr Boyd referred to the draft without protest from Mr Monty, and it does provide a convenient basis on which to make certain points. The first draft put it this way:-

"54. I have concluded that it was unlikely in the summer of 1996 that Mr Johnson's insurers would have been able to show at trial that the claimant had acted unreasonably in refusing to have the operation. However the reason for this would have been that the claimant was asymptomatic. On this basis the court would have been likely to have progressively increased the discount on the claim for future earnings over the period 1996 – 2003, so that from 2003 (twenty years after the accident) no award in respect of damages for loss of earnings would have been made. This approach would also give effect to the evidence that the claimant was capable of working with small animals.

55. Taking all these matters into account, I conclude that the appropriate overall discount on the loss of earnings' claim up to 2003, and in respect of this aspect of the claim, is 50%."

22. Various points arise. First in the draft judgment it seems that the judge is only applying a discount on the claim for earnings post original trial; second he is doing so only for a period 1996-2003 i.e. he seems to be concluding that in assessing the damages against the solicitors he can pay regard to the fact that it became known post 1996 that the actual condition of the appellant's carotid artery did not have any affect on his ability to work; third he is purporting to take into account the appellant's ability to work with small animals, thus he seems to be contemplating that the discount should be applied to 100% of what the appellant could have earned between 1996 and 2003, without any deduction for sums that he should have earned and without any regard to any other factors that might have affected the damages recoverable.
23. Both Counsel had written to the judge following receipt of the first draft seeking clarification of certain points. The detail does not matter for present purposes because the only answer of the judge was his final version of the judgment. In the final judgment it is unclear whether the 40% discount was to be applied to past earnings as well as future earnings. (Mr Monty submitted it applied to both and that that was the judge's reason for increasing the percentage of the damages to which the appellant was entitled). It is also unclear whether he was assessing 60:40 as a percentage to be applied to earnings on beyond 2003 and this needs some elaboration.
24. It is not clear whether the judge was intending that a calculation should be done on the basis that the appellant had been totally unable to work from 1983 right through to the end of his working life, to which the discount should be applied so as to produce a final result; or whether either party was to be free on some future assessment to argue about other factors that might have lead to a different result. Was the appellant still free to argue that there were other factors which could produce a chance of a 100% recovery, and were the defendant solicitors still free to argue that there was other work that the appellant could have done so as to reduce the sum to which the discount could be applied?
25. In the submissions before us neither counsel found it easy to submit precisely what the judge had decided. Mr Boyd put forward various alternative interpretations and the thrust of his submissions was that which ever interpretation one took, the judge's 40% discount was still too high. There was no Respondent's Notice in the Court of Appeal, and Mr Monty's submission at least at the commencement of the appeal was that the correct interpretation was that his clients were still free to attempt to reduce the earnings figure by factors such as the appellant's ability to work with small animals and that the 40% discount was to be applied to any resulting calculation of lost earnings back to 1983 and forward to a date which he found difficult to define but possibly (he accepted) to the end of the appellant's working life.
26. I have some sympathy with the judge being faced with an unsatisfactory preliminary issue. As I have already said in a loss of a chance case it is unlikely that any single issue of fact will be suitable for a preliminary issue, and the preliminary issue identified in this case was certainly quite unsuitable to be tried as such. The judge it would seem did his best to produce some broad brush answer that would actually help and possibly shorten the assessment when it took place, but unfortunately he has left too many uncertainties, and furthermore once one analyses the different aspects of the loss of earnings claim the broad 40% deduction if it applied to past and future earnings would appear to produce a strong likelihood of an unfair answer, to the appellant if limited to the period 1983 to 2004, and possibly an unfair answer to the respondents, if it related to earnings right through to the end of the appellant's working life.
27. The question is whether it is possible (taking account of the judge's findings of fact and analysis which prior to the final paragraphs neither side criticised), to do something to help the parties even if the preliminary issues cannot be dealt with as such. The answer, I hope, is in the affirmative.
28. One of the complications in the case has been the fact that in August 2004, i.e. some eight years after the action should have been tried as against Mr Johnson, experts discovered that the appellant did not have the condition which he was thought to have had over many years, and in particular did not have a condition that required an operation if he was to work normally. To what extent should that piece of information be taken into account by a court assessing the damages for loss of a chance in the claim against the solicitors?
29. The answer to that question is in my view rendered a little easier by the fact that it was also the opinion of the joint experts instructed for the case against the solicitors that, if they had been instructed in relation to the trial in 1996, the scan which they had performed in 2004 would have been performed in 1996 and thus the information before the trial judge would have been that the appellant did not suffer from the debilitating condition. But both counsel before us submitted that that does not provide a complete solution because although that is what the joint experts said, one doctor, Professor Walker, had conducted a similar scan in 1991 and had not drawn the conclusions that are now accepted to be accurate. Second, one of the joint experts who now asserts that at a trial he would have had a scan done and would have concluded as he and Professor Greenhalgh have now concluded, did prepare a report in September 1995, prepared it without having conducted a scan and prepared it on the basis that Mr Walker's assessment (which was of course the same as any other vascular surgeon's assessment up until that point), was an accurate assessment. So it is submitted it cannot simply be said that competent solicitors would have had this evidence available because there is a risk however small that the experts might not have produced that evidence.
30. Where evidence becomes available for the first time after the date of the original trial in an action seeking to assess damages for loss of a chance, the court is faced with a dilemma. Should it have regard to reality or should it ignore the evidence and put itself in precisely the same position as the notional trial judge? We were referred to the judgments in the Court of Appeal in Charles v Hugh James Jones & Jenkins [2000] W.L.R 1278 particularly passages in the judgment of Swinton Thomas LJ. Having explained that he was dealing with a submission on behalf of the negligent solicitors in that case that a court trying the negligence case should act only on the evidence which would have been available at the notional trial, and having cited certain Australian authorities he said this at 1290E:

"For my part, I am in complete agreement with the views there expressed on this evidential question. It is right, as Mr. Jackson submits, that the judge's task is to assess damages that the claimant would have recovered at the notional trial date. However, in appropriate circumstances, in my view, a judge may well be assisted in coming to a view as to the damages which would have been awarded at the notional trial date by knowledge of what had in fact occurred. Although a judge at the notional trial date is making an assessment, it is to be hoped that it is an accurate assessment and evidential matters which would assist in that task are, to my mind, capable of being received in evidence. So far as the evidence of Dr. Roberts is concerned, the point does not arise in an acute form in this case for reasons which I will explain in a moment. I would be prepared to accept that if some entirely new condition which can be attributed to the accident, manifests itself for the first time after the notional trial date it may be that it has to be ignored. I would wish to reserve any final opinion in relation to that. However, in contrast, if a condition has manifested itself prior to the notional trial but the prognosis was somewhat uncertain at that trial date, in my judgment the judge is entitled to, and indeed should, take into account what has in fact occurred. As Mr. Marshall, on behalf of the plaintiff, points out in his skeleton argument, it would be absurd, and in my judgment wrong, if, for example, at the notional trial date the medical evidence indicated that there was a strong probability that the claimant would in future suffer some adverse medical consequence as a result of the injuries sustained in the accident, but it was shown as at the date of the actual hearing that there was no such risk, that the claimant should recover damages in respect of it. Similarly, if there was evidence as at the notional trial date that the probability was that the claimant would never work again, but at the actual trial date he or she had obtained remunerative employment, it would be wrong not to take that fact into account. Equally, if the evidence was less certain as to the claimant's prospects of obtaining employment at the notional trial date, but it was quite certain as at the actual trial date that she would be unable to go back to work again, that is a fact which can properly be considered by the judge. In my judgment, it would be absurd and wrong in principle to disregard such evidence."

31. He then explained the reason why the problem did not arise in that case in relation to the evidence of Dr. Roberts by reference to the findings of the judge that such evidence should have been available at the notional trial if the solicitors had acted properly saying:-

"It must, in my view, be right that when her legal advisers and, indeed, the other medical specialists came to prepare this case for trial, detailed enquiries would have been made and a report would have been obtained from a specialist in the same field as Dr. Roberts. Accordingly, on the facts of this case, there is in my view no substance in the submission made by Mr. Jackson that such evidence would not have been in existence before the trial judge. Therefore, in my judgment, both on the factual findings of the judge and as a matter of principle, the judge was entitled and was right to take into account the evidence of Dr. Roberts and other evidence which related to matters which were, as a matter of generality, in issue in January 1996, but which could be assessed with greater certainty as a result of matters which had occurred since that date."

32. Robert Walker LJ agreed and Sir Richard Scott V-C said this:-

"I, too, am in full agreement with the reasons given by Swinton Thomas L.J. for dismissing the appeal. But I, like him, would reserve my opinion on the question whether events subsequent to the notional trial date, the effect of which, if they had happened in time, would have been to increase or reduce the damages awarded at the notional trial, should be left out of account or taken into account in assessing damages for solicitors' negligence in a case like present. That question can be given an answer when an answer has to be given.

The appeal is therefore dismissed."

33. Those judgments are certainly authority for the proposition that if the further evidence which becomes available should, if the solicitors had not been negligent, have been available at the trial to assist the claimant's case, it can be taken into account to the advantage of the claimant. Swinton Thomas LJ was also clearly of the view (although that view was obiter) that if the medical evidence at the original trial date would only have indicated a strong possibility as to something, and by the date of the negligence action the result was known, the known result should prevail. He was also of that view if the result was to limit the claimant's damages on the basis that the claimant in that way would recover what he had actually lost as opposed to obtaining a windfall. This is a view with which Robert Walker LJ seemed to agree, but it is less clear whether Sir Richard Scott V.C. did.
34. We were also referred in this context to Campbell (or Pearson) v Imray [2004] P.N.L.R. 1 where Lord Emslie in the Court of Session expressed strong disagreement with views of Swinton Thomas LJ stating that it was not legitimate to take into account events occurring after the date of the notional trial.
35. The difference between the situation with which we are concerned and the situation with which Lord Emslie assumed he was concerned is that in so far as reliance is being placed on events post-notional trial, first they are events about which there could be a dispute as to whether they would also have been known at the date of notional trial, and second they are events on which each side do rely depending at which stage of the argument they have reached.
36. A great deal of interchange took place between the court and counsel as to the way in which we should approach this case, and as to what would have been the position so far as any notional trial judge was concerned. It is unnecessary to reflect the totality of that interchange because a position was ultimately reached as to the only bases on which the notional trial judge could have acted. One starts from this position. If the trial date is taken as the summer of 1996 (and both sides were content to take that date, although one's inclination is to feel that it is later than it should be), the judge, in assessing loss of earnings, would have had to consider the influence of the aneurysm from which the appellant suffered. The appellant had not worked since 1983, when the aneurysm was discovered, and it is not disputed that if he had that aneurysm he was not in a position to work at least with heavy animals. There is an issue as to whether he was fit to work with smaller animals. It is not disputed that he was entitled to think that he had a false traumatic aneurysm right up until trial date (and indeed up to 2004).
37. There are three possible ways in which the judge trying the original case might have dealt with the influence of the appellant's aneurysm.
38. First (and this was clearly the most likely) the original trial judge should be assumed to have had the scan and the opinion now available from Professor Greenhalgh and Mr Marcuson. On that basis, it having been accepted by the solicitors that Mr Johnson could not have alleged a failure to mitigate up until September 1995, a trial judge sitting in June 1996 would have been practically certain to hold that it was not unreasonable of the appellant to refuse an operation at all. The idea that a judge knowing in 1996 that the appellant did not need an operation, would have held that the appellant had acted unreasonably between September 1995 and June 1996 is unrealistic in the extreme. Mr Monty accepted this. On that basis the appellant would have had no deduction made for any failure to mitigate by reference to his aneurysm in respect of the damages that he could otherwise prove up until the date of trial.
39. On this basis however there needs to be considered the period between 1996, the date of trial, and 2004, when the actual position was discovered for the first time by the appellant. Mr Monty submits the appellant's claim to recover earnings during this period forms a different head of damage, and has nothing to do with damages lost as a result of the trial not taking place. He suggests that to recover this damage, which would not have been recoverable in the original action before the trial judge, the appellant must plead and prove that his ignorance was down to the negligence of the defendant's solicitors. My Lady, Lady Justice Smith, however put to Mr Monty that this argument was fallacious on the following basis. What the court was concerned to assess was the appellant's loss of earnings and as at the trial date this would have formed part of a claim for future earnings. Furthermore it was this chance of recovering loss of future earnings with which the action against the solicitors was concerned. It was for the solicitors to demonstrate that there had been a failure to mitigate whether vis a vis Mr Johnson or themselves. It could not be open to the defendant solicitors to allege any failure to mitigate, when they were responsible for the trial not having taken place in 1996. Mr Monty was inclined to accept that my Lady was right. On this basis, i.e. the notional trial judge having the accurate scan and the accurate information, there is in the action against the solicitors no basis for discounting loss of earnings up to 2004 on the basis that the appellant had failed to mitigate. Also however on this basis there is no recovery for future earnings because the notional trial judge and the judge trying the assessment as against the solicitors would find that the appellant was not unfit to work because of any false aneurysm.
40. The second basis is that it should be assumed that the judge did not have the up-to-date scan and the up-to-date information but held, on the basis of the risk that there was to the appellant from having an operation or any investigation prior to the operation, that it was not and had never been unreasonable for him to refuse that operation. On that basis, the judge at the trial between the appellant and Johnson would have had to assess loss of earnings for the past and for the future, and in the latter case well on beyond 2004. All would have been assessed on the basis that no deduction should be made for any failure to mitigate by having his aneurysm repaired.
41. The third basis is that the trial judge would not have had the up-to-date information and would have held that it was unreasonable for the appellant not to have had an operation from September 1995. On this basis as recognised by Mr Monty allowance would have to be made for a period of hospitalisation between September 1995 and June 1996 and thus this conclusion would have made no difference to past earnings. Loss for the future would have had to be assessed on a different basis. The appellant might have received no loss of future earnings flowing from the existence of the aneurysm, but damages would have been assessed by reference to the risk of having the operation.
42. Considering past loss of earnings first, it is possible to say that whichever basis is applied the result is that no discount should be applied by reference to the appellant's aneurysm. Even the basis of the judge not having the up to date scan and concluding that the appellant had acted unreasonably applied only from September 1995, and brings one to the date for trial because of the obvious implications of having an operation as at September 1995.
43. As regards future loss of earnings basis two and three are less likely scenarios. They produce either full recovery of loss of earnings well past 2004, or no damages for loss of earnings post 1996 but some different sum in damages. The most likely basis i.e. knowledge of the scan and the accurate advice available to the trial judge, produces no deduction for earnings from 1982 to 2004, but no loss of future earnings thereafter.
44. In calculating the loss of a chance so far as future earnings are concerned is the court bound to consider all three bases as possible and then with difficulty assess some percentage which would then be applied to future earnings from 1996 to the end of the appellant's working life, despite knowing that at least from 2004 the appellant need not lose those earnings? Or should the court use the benefit of hindsight?
45. With the benefit of hindsight, it is possible to see that so far as future earnings are concerned post-2004, the aneurysm is not causative as such of the appellant being unfit to work. The appellant may be able to argue that there are causes of his not being able to work now flowing from other injuries, or from the fact that he has been unable to work until 2004, but those issues are ones which could be argued out on any assessment. But assuming all depends on the condition of his aneurysm, if the appellant were to recover 100% of his lost earnings up until August 2004 (from when he knew that he did not need an operation and could work normally), he will have recovered so far as loss of earnings is concerned what he has in fact lost - no less and no more. That would also be the result of applying the first basis, i.e. the basis which it is most likely that the notional trial judge would have acted on. That would seem to produce the fair result.
46. Mr Boyd resisted this approach. His argument was that we should have regard to the three possible answers that the notional trial judge would have reached and then apply an appropriate discount to future earnings, i.e. earnings between 1996 and the end of the appellant's working life, reflecting the appellant's chance of achieving that award in relation to future earnings at the notional trial. He argued that there was a strong possibility, despite what the joint experts now say, of the original trial judge not having the up-to-date scan. On that basis he argued that there was a strong possibility of the appellant being found to have acted reasonably in refusing an operation and of thus recovering damages for being unable to work on that basis well into the future and beyond 2004 to the end of his working life. His submission was that the judge's figure of 60% was too low by reference to those future losses, and that the appropriate figure was one of 70%.
47. Mr Monty was in the difficulty of not having put in a Respondent's Notice. But his submission was that, having conceded that there should be no discount by reference to the aneurysm for the past earnings only a very low percentage discount could be applied to anything thereafter.
48. My conclusion is as follows. The scan and opinion produced in 2004 and the fact that it would have probably been available at the date of notional trial, has had a material influence on the question whether the appellant stood a good or a bad chance of convincing a trial judge in 1996 that he was acting reasonably. On behalf of the appellant Mr Boyd would wish that evidence to be put in for that purpose – indeed in his skeleton argument before us he suggested it would be "absurd" not to take it into account. He would argue that, if as does seem most likely, that opinion and scan had been available in 1996, it would have been inconceivable that a trial judge in 1996 would have held that the appellant had acted reasonably until September 1995 but had acted unreasonably between that date and the trial date.
49. Once that evidence has been introduced to the benefit of the claimant as in assessing the likelihood of what a notional judge would be likely to have done, it had to be, it seems to me that it ought to be evidence for all purposes. The defendant must also be entitled to rely on it if it assists in reaching a more accurate result as to what the appellant has in fact lost.
50. Even if the appellant had not relied himself on the evidence it seems to me it ought to be admissible on the basis that it is better not to speculate or hazard guesses where hindsight can lead to a more accurate assessment of what a claimant has lost. If the court were to seek to try to find a percentage reduction in relation to damages post-1996 by seeking to take into account all three of the different possible scenarios, the result might be that the appellant had a deduction made in relation to the period 1996 – 2004, which was not made up by the damages received for the period after that date. In other words he would not receive what with the benefit of hindsight we can see that he has lost. Equally if the result of applying a percentage to his future earnings achieved something more than 100% for the period up to 2004, and an additional sum for earnings thereafter, he would in fact be receiving more than he has lost. Why go for a speculative basis when a more accurate basis is available?
51. I must finally consider how the above conclusion should be dealt with leaving it open on the assessment for either party to take such points as remain open. In my view a direction to the judge who now has to assess damages should be as follows. In relation to the appellant's earnings between 1982 and August 2004, the appellant should be treated so far as causation is concerned as having the false aneurysm diagnosed up until that date, and there should be no deduction for any failure to mitigate by reference to any failure to have an operation to repair the same.
52. I would accordingly allow the appeal and substitute for the judge's conclusion the above direction.

Lord Justice Sedley :

53. As Waller LJ has demonstrated, the attempt to hive off the issue of mitigation of loss was a predictably false economy. The order for trial of a preliminary issue ought not to have been made, and counsel ought not to have agreed to it. But it has produced a piece of evidence which, had it been available during the years of economic loss, would have transformed the situation. It throws up an important question: to what extent, if any, can newly discovered facts affect the quantification of the original chance of recovery in a solicitors' negligence action?
54. Beyond this, the overriding question is whether the judge trying such an action is obliged or entitled to quantify not merely the claimant's chance of succeeding in the original claim but his chance of establishing one or other head of damage within it, rather than required simply to apply a single litigation-risk discount (if there is one) to what he finds was the actual loss. In the present case the claimant's original chance of recovering against the other driver was 100%, since liability had been admitted. But in the negligence action against the solicitor who had failed to enter judgment upon the admission, Simon J discounted part of what he considered the recoverable loss for the possibility that the trial judge would have found it irrecoverable. In my judgment this is not in general a permissible approach. There may be situations in which it is unavoidable. But in the ordinary case the judge trying a solicitors' negligence action has in my judgment simply to decide on balance of probability how much would have been awarded at trial had the solicitors done their job and to discount the amount for the risk, if any, that liability would not have been established.
55. Both counsel chose to circumnavigate this point. Each, for his own reasons, has stuck to a quantified proportion of the damages as the amount to which the litigation risk has to be applied. It was submitted, for example, that Simon J's tasks included making an appraisal of the possibility that a trial judge in 1996 would have held the appellant's refusal of surgery to be unreasonable, even though Simon J himself knew everything that the trial judge would have known and could decide for himself whether it was reasonable or not. But the parties cannot by consent require the court to adopt a false approach in law, and counsel have not persuaded me that their approach has the support of either authority or principle.
56. When one then turns to the ascertainment of what would have been the damages, and to the materiality to it of newly discovered facts, the passage from the judgment of Swinton Thomas LJ in Charles v Hugh James Jones and Jenkins [2000] 1 WLR 1278, cited by Waller LJ at §30 above, sets the paradigm neatly. Even if it were not binding in relation to facts ascertainable, though not ascertained, at the time of the notional trial, I would respectfully prefer it to the contrary view taken by Lord Emslie in Campbell v Imray [2004] PNLR 1. It reflects what Lord Macnaghten said rather more trenchantly, though in a different legal context, in Bwllfa and Merthyr Dare Steam Collieries v Pontypridd Waterworks Co [1903] AC 426, 431:

"… the arbitrator's duty is to determine the amount of compensation payable. In order to enable him to come to a just and true conclusion it is his duty, I think, to avail himself of all information at hand at the time of making his award which may be laid before him. Why should he listen to conjecture on a matter which has become an accomplished fact? Why should he guess when he can calculate? With the light before him, why should he shut his eyes and grope in the dark?"

57. Mr Monty, though disposed to argue the contrary, accepted that his insurance clients would not be too happy if they were required to pay a lifetime's lost earnings to the estate of a claimant who had died of unrelated causes a year after the notional trial date. There is, however, a distinction of principle between facts that were discoverable but unknown at the notional trial date and facts which at that stage were both unknown and unknowable. Facts which were unknowable may have to be ignored; but like the court which reserved the status of this class of evidence in Charles, we have here evidence which, though unknown in 1995 and 1996, was knowable and – despite Mr Marcuson's failure to obtain a duplex scan in 1995 – ought by the date of the notional trial to have been known. There is no difficulty in this situation in treating it as part of the data which would have been available to a trial judge in 1996. Equally it has to be treated as unknown up to that point, and therefore as justifying the claimant's belief (a) that he could not return to work with large animals and (b) that the risks of surgery were unacceptable. Between 1996 and 2004, as Smith LJ pointed out in argument (see §39 ante) a different consideration – the solicitors' disentitlement to rely on their own negligence to accelerate the notional discovery of the true condition – prevents the reduction of loss to reflect the claimant's true condition. After 2004, Lord Macnaghten's principle has to operate.
58. So far as concerns the claimant's refusal to undergo surgery (which would no doubt have established that no intervention had been needed in the first place), his refusal was on any view reasonable. He was managing well enough without it, and his research had satisfied him that it carried a far from insignificant iatrogenic risk of death or stroke: a report in the Australian and New Zealand Journal of Surgery for 1983 on a small cohort of patients showed that one of the four who underwent carotid ligation had died and that two of the fifteen who underwent carotid reconstruction had suffered strokes. If a trial judge had nevertheless considered the refusal unreasonable and reduced the damages accordingly, it would have been necessary somehow to include in the reduced award a substantial uplift for the possibility that the operation would have left the claimant paralysed or have killed him. The near-absurdity of such a calculation underscores the good sense of respecting a decision not to undergo surgery because of these very risks.
59. For these reasons, which are not in all respects the same as those of Waller LJ, I agree that the appeal should be allowed and the direction proposed by him be made.

Lady Justice Smith :

60. I agree that the appeal should be allowed and that the order proposed by Waller LJ should be made. I add only a few words in an attempt to clarify the often difficult task faced by judges who have to try cases in which the allegation is that, due to the negligence of solicitors, the claimant has lost the chance of recovering damages from an original tortfeasor.
61. It is trite law that the task of the trial judge in such a case is to assess the value of the claimant's lost chance. Often that will result in the judge applying a discount to the damages as assessed to reflect the risk that the claimant might have failed wholly or partially on liability. However, where, as here, the claimant had a 100% chance of succeeding against the original tortfeasor, there was no need for such an exercise and the trial judge's task is to assess the damages that the claimant would have recovered from the tortfeasor at the notional trial.
62. In assessing the damages that the claimant would have recovered from the tortfeasor, the judge's task is still, as a matter of law, to assess the value of the claimant's lost chance. However, if the evidence before the trial judge is substantially the same as that which would have been available at the notional trial, the trial judge should simply assess the damages on the basis of that evidence. He should not concern himself with the possibility that the judge at the notional trial might have taken a different view of that evidence.
63. The position will be different if the evidence available to the trial judge is significantly less than would have been available to the judge at the notional trial. For example, the evidence of the original alleged tortfeasor, not available at the trial, might have been relevant to some issues of quantum. It may be that the negligent solicitors failed to obtain proper disclosure of relevant documents from the original tortfeasor. The result may be that there are significant holes in the evidence before the trial judge. In those circumstances, the trial judge will have to do his best to assess the chances that the claimant would have had of succeeding against the tortfeasor on the various quantum issues that arise. It may well be that the judge will wish to assess a different chance of success in respect of different issues: see for example as in Charm Maritime Inc v Elbourne Mitchell [Unrep. Court of Appeal Transcript 2 July 1997].
64. If the trial judge is presented with important new evidence that would or might not have been available to the judge at the notional trial, then I would respectfully agree with the views expressed in Charles, namely that, unless the evidence relates to some entirely new matter which could not possibly have been known about at the date of the notional trial, the facts as they have since turned out should be taken into account by the trial judge. As Swinton Thomas LJ said, it would be absurd and wrong in principle to disregard such evidence. In Charles, the Court reserved its position in respect of evidence of entirely new matters which could not possibly have been discovered at the time of the notional trial. We have not had to consider that problem as it does not arise in this case. However, I suspect that, if the problem is considered on a case by case basis, the answer will be clear enough. In the example given by Sedley LJ, the fact that the claimant died of unrelated causes between the dates of the notional and actual trial must be taken into account because, if it were not, the claimant's estate would recover an unjustified windfall. If the claimant won the lottery after the notional trial date and would have given up work even if fully fit, it would be unjust to ignore that and allow him to recover from his solicitors the loss of future earnings he would have recovered from the tortfeasor.
65. In the present case, it seems to me that the agreed medical evidence of Professor Greenhalgh and Mr Marcuson could have been available at the notional trial in 1996. Therefore, the trial judge in the present action should have taken it into account and acted upon it. Even if there was doubt in the judge's mind about whether it would in fact have been available in 1996, he should have taken it into account and given it full effect. It was important agreed evidence. There was no need for him to consider the chances of its availability or what conclusions the 1996 judge might have come to. By 2004 the position was clear and, as Lord Macnaghten would have said of the judge: 'Why should he listen to conjecture on a matter which has become an accomplished fact?'