Case No: B3/2011/1087

INeutral Citation Number: [2011] EWCA Civ 1682
N THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
(HIS HONOUR JUDGE CLEARY)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 5 December 2011

Before:

LORD JUSTICE KITCHIN

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Between:

	WARD	
Appellant	
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ALLIES AND MORRISON ARCHITECTS
	
Respondent	

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Mr T Huckle QC and Mr Stuart Cutting (instructed by Wright Hassall Solicitors) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented. 

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Judgment

LORD JUSTICE KITCHIN:

1.	This is an application for permission to appeal against the order of HHJ Cleary made on 6 April 2011 following the trial of this action in the Coventry County Court. The application was refused on paper by Longmore LJ on 9 September 2011.  Mr Huckle QC, who appears on behalf of the appellant, now requests that that decision be reconsidered.  

2.	The appellant graduated from Bournemouth University with a first-class honours degree in model making in July 2006.  Her ambition was to pursue a career in model making and, with a view to improving her employment prospects, she secured, with the assistance of a tutor at the University, a short period of work experience with the respondent, a firm of architects.  On only her second day, she was asked to cut some wood for a proposed model using a circular saw.  Within moments she suffered amputation of the index finger of her left, non-dominant, hand and dislocation of the middle finger of that hand.  An operation to re-attach the index finger was successful but it remains obvious that she has suffered an injury.  The index finger on her left hand is now nearly two centimetres shorter than the index finger on her right hand.  It is stiff and the pinch-grip between the thumb and the index finger is very poor.  Function, effectively, is between the thumb and middle finger, and the index finger is largely cosmetic.  The purpose of the trial before the judge was to assess the amount of damages to which the appellant was entitled, liability not being in issue.  

3.	The appellant no longer seeks permission to appeal on the first ground of appeal but does pursue her application for permission on the five remaining grounds of appeal which Mr Huckle has developed before me in the following order: ground 3 (meaning of disability); ground 5 (application of Ogden 6); ground 2 (psychiatric injury); ground 4 (past loss of earnings); and ground 6 (loss of congenial employment).  I shall address them in turn.

Ground 3: Meaning of disability  

4.	The judge recognised that the appellant experiences discomfort in the middle finger when carrying shopping bags for more than a minute or two;  she cannot do such complicated or fine work as she did before; she finds some tasks rather difficult if she is required to do them with both hands; and her index finger cannot flex.  However, the judge also observed that the appellant has learned how to complete many tasks by using her right hand and that some tasks, including work on a small scale, require the use of only one hand and fine tools.  In these circumstances he considered that he was unable to find that the appellant fulfilled the criteria of a disabled person within the meaning of the Disability Discrimination Act 1995.
  
5.	Mr Huckle submits that the judge fell into error essentially because he failed to address the relevant statutory definition and that had he done so he should have found that the appellant is suffering from a disability which includes impairments falling within at least sub-paragraphs (b), (e), (g) and (h) of paragraph (1) of Schedule 1.  Moreover, he says the judge fell into error in considering only the physical injury suffered by the appellant and not the impact of her psychiatric injury and physical injury taken together.  In the light of these submissions, I am persuaded that this is an issue upon which the appellant has a real prospect of success on appeal.

Ground 5: Application of Ogden 6.  

6.	Mr Huckle submits that the judge fell into error in declining to apply the methodology for computation of future loss of earnings in the labour market provided for by the 6th edition of the Ogden Tables (Ogden 6).  Mr Huckle continues that the judge fell into error as a matter of law in wrongly concluding that Ogden 6 is not of general application in personal injury cases and that it is still appropriate to compensate an injured person for future reduction in earning capacity by an order of general damages when the Ogden 6 methodology is capable of adoption.
  
7.	This, it seems to me, is a relatively short point of principle and it is one upon which Mr Huckle has again persuaded me that the appellant has a realistic prospect of success on appeal.

Ground 2:  Psychiatric injury 

8.	Mr Huckle contends that the judge fell into error in determining the nature and extent of the appellant’s psychiatric injury and the appropriate award for pain and suffering and loss of amenity in respect of that injury.  I have to say that I had considerable doubt as to whether this was a ground upon which permission should be given in the light of the way the point was developed in the appellant’s skeleton argument which, it seemed to me, in large part sought to invite this court to interfere with findings of fact.  However, not without some hesitation, I have reached the conclusion that I should grant permission on the basis that it is arguable that the judge’s finding that a psychiatric injury was limited to a short term PTSD of about four months’ duration at the end of 2006 is a finding that was simply not open to him on the evidence because the appellant is suffering serious on-going effects.

Grounds 4 and 6:  Past loss of earnings and loss of congenial employment  

9.	I was initially minded to refuse permission on these grounds too.  However, Mr Huckle has persuaded me that I should give permission for the following reasons.  In relation to past loss of earnings, he says the judge fell into error in reducing the assessment by reference to assumed periods of unemployment in the immediate post-accident period without any evidential basis.  As for loss of congenial employment, he says the judge made his award on the basis that the loss was temporary when the reality is that it is not because it is extremely unlikely that the appellant will be able to pursue her chosen career path and this will have a material and lasting effect on her earnings, as shown by data which Mr Huckle has taken me to this morning, and to which, he submits, the judge simply failed to have regard.  

10.	In conclusion I have decided that it is appropriate to grant permission to appeal on the grounds to which I have referred, that is to say, the five remaining grounds of appeal.  However, I would make it clear that in so doing I do not mean to sanction any attempt by the appellant to undertake a general challenge to the judge’s findings of fact.

Order:  Application granted