ON APPEAL FROM THE NORWICH COUNTY COURT
His Honour Judge Curl
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE MOORE-BICK
| MARK SIMON SMITHURST
|- and -
|SEALANT CONSTRUCTION SERVICES LTD
Mr. Angus Withington (instructed by Langleys Solicitors) for the respondent
Hearing date : 16th June 2011
Crown Copyright ©
Lord Justice Moore-Bick :
"14. . . . the central issue for the court is whether or not the claimant's loss of [sic] injury would have occurred but for the admitted breach of duty by the defendant. In my judgment the court is dealing with the issue of causation and the 'but for' test is applicable. In those circumstances the issue in my judgment falls to be determined on the usual standard of proof, namely, the balance of probabilities.
15. The case at this stage, in my judgment, is essentially one of causation, as opposed to an assessment of damages, which will have to be dealt with later . . . I agree with Mr. Withington that to apply some loss of chance analysis would be well nigh impossible in the present case, not least because neither expert was asked to give any evidence about it. I consider therefore the issue falls to be determined on the usual standard of proof, namely, the balance of probabilities."
"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."
"When the question is whether a certain thing is or is not true - whether a certain event did or did not happen - then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent.: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent. and a probability of 49 per cent."
"42. . . . the judge's approach here gave the Appellant the benefit of five years, assumed to be entirely trouble free, without this accident, and it is to be noted that an appropriate award of loss of earnings of 100 per cent basis was made in respect of the five years. Likewise, of course, the approach assumes it to be a certainty that but for the accident she would have had like troubles after five years.
43. The position here arrived at might perhaps coarsely be described as a swings and roundabout approach. What one cannot say is that it is, by reference to any principle, in some way less fair or just to the Appellant. Theoretically, indeed, the acceleration approach ought to produce the same result as Mr de Navarro's approach. In the event then I would accept the Respondent's submission summarised in counsel's skeleton argument, page 8, paragraph 10, that the notion of acceleration:
"This is simply a methodology of assessing the value of the Claimant's losses. It could have been expressed in terms of a chance if the medical evidence was presented in that form or if the medical witnesses had said that they did not know when symptoms would arise only that they would arise at some indeterminate time".
44. Before us this afternoon Mr Burton QC for the Respondents sought, in particular, to emphasise the passage on the next page and it is convenient to read it:
"None of the experts including the Claimant's expert sought to look at the matter in terms of a percentage chance that the Claimant would have had or avoided a similar accident and with similar sequelae. The Claimant's counsel never addressed the Judge as to what percentage ought to be the chance occurrence on the basis of the evidence yet now invites this court to do precisely that. The Judge can hardly be criticised for expressing his findings in the way that he did given the way in which the evidence was presented. It would have been wholly wrong for the Judge to express it in terms of a percentage chance given that this was not the way in which the evidence was canvassed."
45. It seems to me, on the particular facts here, that those submissions are correct. It is to be noted that the acceleration methodology has been used extremely commonly as cases corrected in Kemp, referred to by the Respondents, amply demonstrate. I hope I may be forgiven if I do not set them out. In the result, at the least the learned Deputy Judge was entitled to proceed as he did. This was, in truth, a case where an acceleration approach was entirely proper. One can readily imagine, if this or that aspect of the case had been fashioned somewhat differently, that a different approach might have been at least that appropriate, perhaps more appropriate. As always in these cases, and one must go on with the particular facts and the evidence that was given and in relation to those in my judgment, the approach here taken cannot be faulted."
"Q: To what extent do genetics play a part, if at all, as to whether a prolapse occurs?
A: Well, I think that genetics is actually more important in the development of degeneration, so there's a lot of evidence now that suggests that genetics are responsible to a large extent for the amount of degenerative change in your spine. Obviously the disc prolapse occurs in a disc which is already degenerate, so disc prolapse will be – is probably commoner by genetic association."
"Q: Can you just explain very briefly to His Honour why you felt that two years was the right sort of figure?
A: Well, we're not dealing with science, because there are no studies that give us this answer and I suppose that's one of the reasons why we disagree. I think that we know there was a degenerate disc, we know that a massive tear was either there already or happened that day and we know that a massive disc prolapse occurred.
His Honour Judge Curl: Yes.
A: If you believe that the insult was extreme and akin to dropping out of a window or coming off a motorbike, then I think the contention that the disc prolapse occurred purely as a result of that trauma is maybe reasonable. In my opinion the force applied to the disc was high, but not necessarily factors higher than the forces which would have occurred in his normal day to day life. And I think if the disc prolapse had not occurred on that day, it would have occurred soon afterwards and probably much sooner than two years after the event, but certainly within two years of the event."
"A: I'm saying the outcome would have been similar, because we can look at Mr. Smithurst's case retrospectively, and I don't see any strong reason why some other event would not have caused a tear in the disc and I don't see any particular reason why it should not have caused a very similar disc prolapse in the weeks and months that followed. And if the disc – if the tear was already there, again, I don't see why the outcome should have been very different."
"Q: . . . And so we're now looking in the question of hypothesis, as to what might happen in the future, and you think that probably he would have a disc prolapse in the future, yes?
Q: But you'd accept that [it is] possible he wouldn't?
A: Yes. Very Unlikely.
Q: Very unlikely?
A; Yes. I think very unlikely he wasn't going to get a disc prolapse at some point in the future.
Q: Right O.K. You say as massive?
A: On the balance of probabilities."
"Q: You've also been asked on a number of occasions about luck.
A: Mm, Mm.
Q: O.K. In so far as luck is concerned, is luck in reference to the particular development of this particular prolapse, is it luck because he's just got a bad genetic make-up, what's the luck that you're referring to?
A: Luck is that you can have three different patients who have a scan that looks identical and one of them has serious neurological problems and the other two don't. So we can't always explain why one person has a neurological deficit and another one doesn't.
Q: So it's luck in comparison to a group as a whole, as opposed to him specifically?
. . .
Q: . . . what's your view as to the percentage likelihood of Mr. Smithurst having the same symptoms as a result of a future prolapse which you anticipate would have happened?
A: Well, I'm anticipating the prolapse is going to be broadly similar, so on balance I can't think of any reason why the neurological effect of that is not going to be broadly similar."
(i) that Mr. Smithurst had a genetic predisposition to disc degeneration and that the disc at L5/S1 had already suffered a significant degree of degeneration;
(ii) that the forces needed to cause a massive prolapse of the kind that occurred on 16th March 2006 were no greater than could be expected to be imposed on his lower spine in the course of his ordinary activities;
(iii) that although it was not possible to say with confidence when it would occur, Mr. Smithurst was liable to suffer a massive prolapse at any time, that is within a matter of days, weeks or months of the accident and almost certainly within a period of two years at the most;
(iv) that the nature of the degeneration was such that the prolapse itself, whenever it occurred, and its consequences would almost certainly have been the same.
Lord Justice Rix:
Sir Nicholas Wall P.: