ON APPEAL FROM BASINGSTOKE COUNTY COURT
(HIS HONOUR JUDGE DIXON)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE PITCHFORD
|- and -
Filipiak & Anr
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Robert Lazarus (instructed by Greenwoods Solicitors) appeared on behalf of the Respondents.
Crown Copyright ©
Lord Justice Pitchford:
"67. Having regard to the sort of level of awards for claimants who have sustained up to 5 or 6 years of reducing pain and suffering and loss of amenities but are left with a permanent reminder of what has happened to them, it seems to me that a proper award in the case of this claimant is a figure of £32,000, and that is the figure, together with interest in addition, that I propose to award her for pain and suffering and loss of amenities.
68. It may help if I endeavour to apportion that award between the various categories, and that I shall do, but I do it deliberately as a postscript rather than by coming to individual awards and then totalling them up and, as may be necessary, discounting them. I would apportion that figure in this way. For the fracture to the left femur, including the scar, £12,000; for the scar to the face, £4000; for the other scars £5000, for the post-traumatic stress disorder, £8,000; for the eye injury, £1000; for the other injuries, £2000. If my arithmetic is right, that should be £32,000 in total. If it is not, I shall reapportion, but I am confident that overall that is the proper sum for general damages in this case."
i) a clean transverse fracture of the mid femur on the left side. The appellant underwent a medullary fixation on 27 November 2006. It involved the insertion of a nail during open surgery into the top of the thigh through the fracture site, terminating close to the knee. A second incision to the outer thigh was required to perfect the placement of the nail. A significant traumatic open wound of the left leg was also cleaned and sutured. The appellant remained in the high dependency unit until 2 December 2006. She was transferred to the ward to undertake physiotherapy and was discharged home with crutches on 8 December 2006;
ii) A traumatic dislocation of the right big toe which was "excruciatingly painful" on admission. The dislocation was corrected while the patient was under general anaesthesia for her surgical procedure to the left femur;
iii) A whiplash injury to the neck;
iv) A blunt abdominal injury to the spleen;
v) A concussive head injury;
vi) multiple scarring comprising a) a traumatic laceration over and under the front left jaw; b) a ragged traumatic laceration to the left thigh; c) traumatic scarring to the right forearm; d) a puncture scar to the left knee; e) surgical scarring to the left leg;
vii) blurred and patchy vision in the right eye caused by a blow to the front of the head;
viii) post-traumatic stress disorder together with a grief reaction which was still affecting the appellant at the time of the trial.
"47. This appears to me to have been a serious but uncomplicated fracture and the claimant has made a reasonably good physical recovery. The fracture united quite well. She has no limp. There is no risk of future arthritis or degenerative disease. There is clearly some diminution in movement the strength in the leg. Significantly, she is unable to be as active as she was. She told me that she cannot play netball any more, which she enjoyed, and she feels her leg to be less flexible when she is playing with her children. Nevertheless, her evidence was that she regularly attends a gym where she is able to use the bicycle, the cross-trainer and the treadmill. Is apparent to me that physical activity and fitness are important to her, and it appears to me that she is doing well in finding compensations to keep her fit and well. It is clear that she has suffered considerable aching and discomfort from the site of the fracture and the position of the nail, especially, as is often the way, in cold and damp weather. It is now clear from the orthopaedic surgeons that removal of the surgical nail should help, and the claimant is now ready to have this done. Hence my award of the cost of private surgery to achieve that. That is likely to lead to an improvement in fairly short order, which will leave her with a largely recovered left leg apart from, I shall assume, some diminution in the extent to which she can use it, for example in sporting activity."
"53. Next is the scar at the site of the fracture of her femur. This, as I have already noted, is a significant scar and plainly visible. It would easily be seen on a swimming pool or a beach. The claimant is conscious of it to the extent that she will not readily wear a swimsuit, which would plainly reveal it. I think that she is entitled to feel self-conscious about it. Given where it is on her body, in practical terms there is very little she can do to reduce its appearance or to conceal it, when for example she on a beach or by a swimming pool and in swimwear. There is a further scar on her left thigh. This is a straight line scar which would normally be concealed by her clothing, but would be visible if she wore sportswear or swimwear, and it might be visible if she were to wear a very short skirt, which she told me she does not tend to wear. This scar is far less vivid than the femoral scar, and whilst it is visible it is not obvious. Against her other scars it would not, in my assessment, cause any further or additional concern, and it does not significantly worsen the overall picture of her scarring. There is a patch scar on her tibia with an appearance similar to the scar on her forearm but with a slightly darker appearance. It is plainly visible on her uncovered leg when she wears a skirt. She continues to complain of some sensitivity over the scar. Mr Rossi advised that some cosmetic revision would be possible, but it would lengthen the scar and would result in only a 20% to 30% improvement of appearance at best. So I approach this scar on the basis that it will remain as it is. In my presence the claimant applied some foundation to the scar, which I thought was very effective in reducing its appearance, although it did not conceal it altogether. My assessment about this scar is that it is not a major blemish and that the claimant will cope with it quite well. In colder weather she will conceal it under tights or trousers, and in warmer weather I think she can cover it quite effectively.
54. Finally, there was a puncture scar below the left knee. I regard this as insignificant. It is barely visible alone and does not, in my judgment, cause any separate serious blemish or add to the overall scarring that I have already noted."
"51. … This I find to be visible, but barely so beyond conversation distance. When concealed by makeup it is only visible at really quite close quarters. The scar is apparent, but in my judgment by no means ugly or seriously disfiguring, although I can readily understand, and I accept, that the claimant remains conscious of it, but I do not think that it will gravely interfere with her overall looks or image. I would not judge that it would seriously disrupt her everyday life, and whilst it will always remain a modest blemish, I think she will learn to live with it without excessive embarrassment or self-consciousness."
As to the scar on the forearm the judge said :
"52 … This too is easily visible. It has the appearance of a small burn scar. It is a blemish, but is not intrusive or unpleasant, and I can readily understand again, and I accept, that the claimant is conscious of it, but she can reduce its appearance considerably with the application of makeup."
Finally, as to the puncture mark below the left knee, the judge said:
"54 … I regard this as insignificant. It is barely visible alone and does not, in my judgment, cause any separate serious blemish or add to the overall scarring that I have already noted "
"20. … In the circumstances, I am bound to say that I did not find this aspect of the evidence of any assistance, and I did not detect any real difference at all between the experts on this aspect. Both agreed, as they always have done, that there was no doubt that the claimant had exhibited clear symptoms of post-traumatic stress disorder for between 2 and 2½ years, and that thereafter she proceeded to recover, but she still had residual symptoms such as her aversion to driving again."
He continued at paragraph 21:
"21 As I understand the evidence of both these experts, they acknowledged that the claimant continues to suffer symptoms. Both acknowledged that she had over time shown a consistent pattern of recovery and would continue to recover. Dr Master put it at one point: 'My assessment of this case is that she is more likely to get better than to get worse or to stay static.' For her part, Dr O'Doherty observed, having had the advantage of seeing the claimant give evidence on the first day (although Dr Master did not), that whilst the claimant had improved since she first examined her in November 2008 and overall she had improved, as she would have expected, nevertheless the claimant's aversion to driving had not reduced as much as Dr O'Doherty would have expected in the circumstances."
"28. In her statement dated 4th August 2010 the claimant said that she is able to drive and does so, as she put it, 'If I have to', but she preferred not to do so. She said she was aware of the recommendation that she should have therapy, which in her statement she said, 'I may do in the future, but I still do not feel able fully to discuss the accident and its consequences at this time.' Her evidence to me was to a similar effect, but whilst her view was firm, I did not understand her to be absolutely unmoveable about this. I judge her to be an intelligent person and with a proper and careful therapeutic approach I think there is every prospect, indeed I think it is probable, that she could be persuaded."
The judge noted that the appellant had already taken the first steps by driving her husband's car, unwillingly, on a few occasions and entertained no doubt that in the end she would conquer her fear.
"59. … I need to adopt some sort of rationale to my assessment, and I find it helpful, as did counsel, to consider the various injuries in categories, but I stress that I do not regard the sub-divisions that I have adopted as rigid or exclusive. I do not approach the exercise of assessment on the basis at least implicitly urged on me by Mr Chapman that I simply adopt a category from the Judicial Studies Board guidelines, find a figure within it, total up the figures, and then award a single figure subject only to a final check against any reported awards. In fairness to Mr Chapman, he did submit that reference to reported awards should come before reference to the Guidelines but he was submitting that, in this case, I can and should aggregate the figures that I come to in relation to each category.
60. Mr Lazarus reminded me, I think rightly, that the award of damages is not strictly for the injuries sustained per se, but for the pain and the suffering and the loss of amenities which result from them. That supported his contention that I must allow for a measure of overlap. In one sense that must be right, in my judgment. Where multiple injuries are sustained there will be an immediate loss of amenities and an agglomeration of pain and suffering. As recovery proceeds, individual strands of pain and suffering and lost amenities may emerge referable to a greater or lesser degree to the individual injuries. Mr Chapman submitted that, insofar as there may be any overlap between the injuries, that should in fact lead to an enhanced and not reduced figure, because the injuries were sustained at the same time. That, I am bound to say, I find to be a bold submission, and as an approach I do not accept it. In my judgment, the claimant's injuries and their consequences can be divided in the following way as an aid to reaching an overall figure."
"Fractures from which an Incomplete Recovery is Made.
The injured person will be left with a metal implant and/or defective gait, a limp, impaired mobility, sensory loss, discomfort or an exacerbation of a pre-existing disability."
The advised bracket for such injuries was £11,800 to £18,250.
"Less significant scarring.
In these cases there may be but one scar which can be camouflaged or, though there is a number of very small scars, the overall effect is to mar but not markedly to affect the appearance and the reaction is no more than that of an ordinarily sensitive young woman."
"(b) Moderately severe.
This category is distinct from (a) above because of the better prognosis which will be for some recovery with professional help. However, the effects are still likely to cause significant disability for the foreseeable future. While there are awards which support both extremes of this bracket, the majority are between £20,000 and £25,000.
In the moderate category, with a range of £5,400 to £15,250, are those cases where the patient has largely recovered and any continuing effects are not grossly disabling. Finally in category (d) 'Minor' a range of £2,600 to £5,400 is advised in respect of patients who have made a virtually full recovery within one to two years and only minor symptoms persist over a longer period.
"66. … As well as considering what might be, were they standing alone, appropriate awards under each of those divisions, I also step back and endeavour to take an overall and realistic view of this case. In overall but simple terms, this is a case, in my judgment, where the claimant will have suffered considerable interference with her life over a period of perhaps just beyond 5 years with considerable physical and psychological symptoms, reducing from an initial intensity in the first months following the accident. I find that she will recover very substantially, but she will be left with a permanent reminder in her scars. I judge her to be courageous and resilient personality. I think she will get on with her life and I think she will accommodate some modest reduced physical capability and she will accommodate her cosmetic blemishes effectively. The sum for general damages for pain and suffering loss of amenities therefore, in my judgment, must meet mainly the past pain and suffering and loss of amenities together with the future concern about her scars. I find that none of the reported awards cited by Mr Chapman or Mr Lazarus very accurately met the circumstances of this case. This is not to imply any criticism of either of them. I am quite sure that if such a reported award existed they would have found it. And I do not regard any of the authorities that they cited to me as in any close sense truly comparable. I take some time over reaching my conclusion because the fact remains that in this case there is a very substantial gap between the ranges contended for on each side, and at the end of the day it is not simply a difference of degree. One of Mr Chapman or Mr Lazarus simply cannot be right in the way he pitches his figures and it seems to me that I need to take as realistic a view as I can about this case in the light of all the material that was placed before me. I come to the conclusion that Mr Chapman pitches too high. The sort of range that he seeks would, in my judgment, be for a claimant who was significantly more disabled and disadvantaged than this claimant. I do not accept that I can simply aggregate the figures in each category, however I come to them, in the way that Mr Chapman invites me too. There must, it seems to me, be an element of overlap."
"Before turning to the circumstances of the case it is appropriate to state and keep in mind the approach of this court to quantum appeals. It has long been established that we do not interfere with an award unless satisfied that the judge acted on some wrong principle of law, misapprehended the facts or that the amount awarded was wholly erroneous. It is not sufficient that the members of this court would have awarded a different sum if they had been sitting as the court of first instance -- see Flint v Lovell  1 QB 354, Owen v Sykes  1 QB 192. If anything, the current approach is less rather than more interventionist. Thus, in Ashdown v Michael (unreported) [98/0516/2] Buxton LJ stated that: 'It should only be in exceptional cases … where this court should be asked to consider interfering.' For my part, I would add that in this context it is pertinent to have regard both to the sums of money involved and the cost of appellant litigation and to ensure that the one is not disproportionate to the other."
"In deciding what the award should be in respect of pain, suffering and loss of amenity, the learned judge considered, as he was invited to, tables which had been prepared by the Judicial Studies Board and which were placed before him by counsel then acting on behalf of the plaintiff. He also considered the figures which were put to him by way of example on behalf of the defendant. He came to the conclusion that some benefit was to be obtained from the earlier type of figures; a conclusion which is disputed by Mr Murphy, on behalf of the defendant. It seems clear to me that the learned judge did not simply focus on those figures. He arrived at his conclusion by using them as a tool in addition to the figures which he had been invited by Mr Murphy to consider. In that way he arrived at his figure of £45,000 …
It is submitted by Mr Murphy that, nevertheless, the learned judge reached a figure which was too high and that the figure should have been in the region of £35,000. He submits that the learned judge was led into that error because of the weight which he gave to the separate figures advanced by the Judicial Studies Board in respect of the separate heads of injury. He invited us to look at the way in which the argument had been put on behalf of the plaintiff and the different heads which had been given to different types of injury which this plaintiff had sustained. Mr Murphy submits that was a wrong approach and no weight should have been given to it at all. He has invited our attention to some awards of damages reported in Kemp. Miss Dureau, acting on behalf of her father with great skill and courtesy, has done the same in relation to some other awards, taking also advantage of the skeleton argument prepared by Mr Bishop at an earlier stage in the preparation of this appeal. Needless to say, we have looked at the awards to which our attention has been invited, as well as the figures which have been put forward as being the figures set out by the Judicial Studies Board.
Help is to be obtained from any source where it happens to be available. To a limited extent, in a case where there are multiple injuries, the figures in the Judicial Studies Board table can help but I accept Mr Murphy's criticism of them that, where one has a multiplicity of injuries, it is necessary to take an overall view. The off-setting process may mean it is not possible to derive a great deal of benefit from that particular source. One then looks to see if anything can be gained from looking at a comparable award, if one is to be found, in another other case. Even that may not prove to be a particularly fruitful source of inquiry. It may be necessary, if it be possible, to select what may be the most serious head of injury to see if a comparable award can be found in relation to that and, if so, build on it to allow for the other heads of injury which have been sustained by the plaintiff in the instant case.
"I would add that in my judgment an appeal court should always be slow to interfere with the trial judge's assessment even though it may seem that such assessment falls outside the Judicial Studies Board guidelines or is out of kilter with other roughly comparable cases. After all, the trial judge will have seen the plaintiff and, sometimes, as in this, have had the advantage of visiting the plaintiff's home and seeing film of her getting about both in the home and outside. The trial judge will have been in the best position to make a judgment as to the effect upon the plaintiff's life of the injuries and the consequent disabilities. It is only after a degree of hesitation, therefore, that I have come to the conclusion that in this case the award for pain, suffering and loss of amenity cannot be allowed to stand."
"81. In assessing the appropriate award under this head, I bear in mind that in most cases in which a claimant suffers from two or more distinct categories of injury, it may not be appropriate simply to aggregate the figures which might be awarded for each injury considered separately. A discount may be appropriate in arriving at a suitable total figure. Here, I think that a discount would be inappropriate. In the case of each of the categories of injury suffered, the effect of the one has in my view made it if anything more difficult for the claimant to cope with the other, even after making allowance for the exaggeration already discussed. … "
"22 … However, in this as in any other similar case, the correct approach is not one of simple aggregation. Compensation for pain, suffering and loss of amenity has to take into account that where there is a plurality or duality of conditions simple aggregation would produce over-compensation for pain, suffering and loss of amenity. That is particularly so where, as here, the psychological sequelae are related to the pain or perception of pain which was initially caused by the orthopaedic injury."
"The proposed cross-appeal is in respect of an award of £950 plus interest and of £5,264. It is inconceivable that these awards would have been challenged had not the appellant been granted permission to appeal and I am unprepared to grant permission to cross-appeal simply because the matter would in any event be before the full Court of Appeal. The judge dealt with exceptional thoroughness with these three small disputed items at paragraphs 38, 41 and 42 of his judgment. He took into account the lack of documentary evidence as to the Estee Lauder advance repair treatment. The claims for bio-oil use past and future were discounted to reflect points made by counsel for the respondents. The point at issue concerns the reasonableness of a young woman using products which the judge plainly found she reasonably believed had been beneficial in contributing to the healing and concealing of facial and other scarring. The judge was entitled to reach the conclusions which he did and I do not consider that an appeal against them has a reasonable prospect of success."
"38. The second item relates to the cost of Bio-Oil. I shall come back to this in a moment, because it arises more conveniently under item 8 in the schedule. The claim is for the cost of buying this particular pharmaceutical (if I can call it that) product over a period of just over 48 months at £19.79 a bottle each month. The defendants concede some element of claim, but they dispute the amount which the claimant, by implication, says she was using, and they dispute the price at which she says she was buying it, because it could be obtained more cheaply. I take the view here that the claim to date is justified at the rate overall of about a bottle per month. But, on the other hand, I am sure on the evidence I have seen that it could have been acquired more cheaply. I have in mind too the submissions made by Mr Lazarus that perhaps the claimant is using it for convenience rather more extensively than she would need to in order to deal with her injuries. What I propose to do is accept the figure claimed in principle, but to reduce it by just under 5%. So the sum claimed to date was 4.17 years times 12 bottles times £19.79, which I think came to £990 in round figures, and I propose to reduce that to £950.
41. The claim in relation to Bio-Oil was in the sum of £3, 585.94 in the schedule, representing the cost of one bottle each month for a period of 20 years – the sum being reached by the application of an appropriate multiplier. Bio-Oil is an oil which the claimant applies to her scars. She regards it as highly beneficial. It was recommended to her, she said, by her general practitioner, and it has the effect of helping to reduce the appearance of her scars. Both she and Mr Robert Harris of the defendants' solicitors, from whom I heard evidence, produced printouts from various websites about this product. If its marketing and advertising material is to be taken at face value, and I cannot do anything other than to do so, it certainly claims to be beneficial in helping to maintain the elasticity of scarred skin and to improve the appearance of scars. It retails in high street shops for about £19.79 for a 200 ml bottle. It appears to be available for considerably less by mail order and under special offers. The defendants accept that it is beneficial to the claimant, but Mr Lazarus argues that, on the evidence, it is clear that she was using it far too liberally and applying it to areas of her skin beyond the scarred areas themselves, and in effect using it in place of skin moisturiser which she would have bought and used in any event. As against that, the claimant said that she now uses Bio-Oil rather less often than she had in the past, but Mr Lazarus submitted that a claim for x20 years' use is, overall, excessive. But he accepted, again I thought realistically, that there were a number of balancing factors, as he put it, on each side, and so the court needed to take a pragmatic view. He concedes some past use, but submits that no award should be made for future costs. Mr Chapman, in contrast, submitted that the claim was modest in being restricted to 20 years only, and that it was foreseeable, given the sort of person that the claimant is, that she is going to continue to use it. My view about the Bio-Oil issue is that 20 years is reasonable, but I think that it will be used less by the claimant, and I am quite sure that she should be able to obtain it more cheaply than the full apparent retail price of £19.79. I am afraid I am not swayed by her point, albeit many people hold it, that she is unwilling to buy the product through a website by mail order. What I propose to do is award a sum based upon 10 bottles a year rather than 12, but multiplied by £19.79, with the appropriate multiplier of 15.45, which I think properly reflects the points made by Mr Lazarus. The result on my arithmetic is an overall sum of Bio-Oil of £3,058.
42. The next item claimed in relation to cosmetic products was something called Estee Lauder Advance Repair Treatment. By her claim, as now amended, the claimant seeks to recover one bottle of this product for every 3 months over a period of 10 years. This is a product which, according to her, helps to heal scars by softening the tissue. She told me that she only uses it on her facial scar, and she has not been using it much lately as the scar has flattened more than the others. But she said she applied it generally every night. There was no supporting documentary evidence about this particular product. Mr Lazarus submitted that, in the light of this evidence, the claim has all but fallen away and I should make no separate award. Mr Chapman submits that since the claim was, in effect, reduced at the hearing, his now amended claim of one bottle per 3 months over 10 years is reasonable. I am prepared in the circumstances to accept that, given the importance that the claimant attaches to her looks and the skill with which she appears to be able to conceal the worst effects of her facial scar. So I shall award in relation to that item the sum of £2,206, according to a formula that I think it accepted by both counsel, ie the cost of a bottle at £63.62 times 4 times a year, times 8.67 as the appropriate multiplier."
Lord Justice Etherton:
"As far as the first ground of appeal is concerned, I respectfully agree that the learned judge's approach adding up the various figures for the awards that she thought appropriate for the various different injuries could well lead one to an award, which, compared with other awards, is in the aggregate larger than is reasonable.
In this type of case, in which there are a number of separate injuries, all adding up to one composite effect upon the plaintiff, it is necessary for a learned judge, no doubt having considered the various injuries and fixed a particular figure as reasonable compensation for each, to stand back and have a look at what would be the global aggregate figure and ask if it is reasonable compensation for the totality of the injury to the plaintiff or whether it would in aggregate be larger than was reasonable?"
Lord Justice Ward:
Order: Appeal allowed; Application for cross-appeal refused