Case No: B3/2011/0063

Neutral Citation Number: [2012] EWCA Civ 54
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHELMSFORD COUNTY COURT
HHJ MURFITT
Claim No 8LS54464
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/01/2012
Before :

LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
and
LORD JUSTICE RIMER
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Between :

	PETER ANNISON	Appellant	
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	PAUL NOLAN	Respondent	

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(Transcript of the Handed Down Judgment of
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The Appellant appeared in person and was not represented
MR JONATHAN BELLAMY (instructed by Ford & Warren) for the Respondent

Hearing  date : 23rd  November 2011
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Judgment
Lord Justice Mummery: 
Introduction
1.	This is an appeal from an order of HHJ Murfitt dated 8 December 2010. She  awarded substantial damages to Mr Peter Annison, the claimant. She handed down her judgment on 29 November 2010, the trial having taken place on 27-29 July 2010. 
2.	Mr Annison suffered serious injuries in a road traffic accident on Margaretting Road in Essex on 13 September 2005. A car driven by Mr Paul Nolan, the defendant, collided with Mr Annison on his motor bike. Mr Nolan admitted liability.
3.	Mr Annison’s injuries included a compound complex fracture of the lower part of his right leg, causing considerable disability and affecting his mobility and ability to drive long distances. He is a retired British Telecom General Manager with mechanical and electrical experience and was 62 years old at the time of the accident.  
4.	The award totalling £312,581.70 covered damages for pain, suffering and loss of amenity, special damages and interest. The award was made in provisional terms that would entitle him to claim further damages at a future date should amputation of his right leg become necessary.
5.	Mr Annison appeals against the assessment of damages for certain items of special damage claimed for future loss. They are (a) increased transport costs through expenditure on regular use of taxis to visit family and friends; and (b) enhanced home maintenance and repair costs on various items, which in the past he has carried out himself, but which he says he will not be able to do in future. He now has to pay others to do those things for him. 
6.	Mr Annison was represented in the court below by Mr Picton QC, but he now appears in person. His case on appeal is that the judge’s award of damages for transport costs and home maintenance and repairs is so low as to be unjust. 
7.	Against that Mr Jonathan Bellamy, counsel for Mr Nolan, says that the appeal raises no question of law; that the judgment was not in fact wrong on the sums awarded; that the claim for additional taxi costs was neither pleaded nor proved; that the claims for enhanced home maintenance and repair costs, which involve significant overlap or duplication with other items, were not supported by adequate or admissible relevant evidence; and that therefore it cannot be said that, on the available evidence, the judge was wrong to award the amounts that she did for those items.
Limited permission to appeal    
8.	On a renewed application Tomlinson LJ granted permission to appeal on two grounds only: ground 6 relating to the claim for future taxi fares; and  ground (2) relating to enhanced home maintenance and repair costs. Tomlinson LJ pointed out the costs implications and risks involved in an appeal. He wisely recommended mediation. Unfortunately, that came to nothing.

Applications 
9.	Mr Annison filed an application for a summary of medical records to be included in the appeal bundle. Mr Bellamy did not oppose that. 
10.	His application for leave to adduce fresh evidence on estimated cost of future taxi fares was opposed by Mr Bellamy and was refused by the court at the hearing on the grounds that it would not be just for such evidence to be adduced on the appeal. No attempt had been made by Mr Annison’s then advisers to introduce such evidence at the trial. He produced no satisfactory explanation why the evidence could not have been made available at trial by the use of reasonable efforts. Mr Annison says that his application was in response to Tomlinson LJ’s comment at the permission hearing on the absence of such evidence. He commented on the apparent lowness of a notional figure of £300 per year used by the judge for the computation of future taxi costs. 
11.	For reasons that will appear later Mr Annison’s application for future costs to be calculated on the Ogden Tables does not arise at this stage nor does a possible application in relation to costs issues in connection with which the court has been supplied with a bundle of documents embargoed until after the outcome of the substantive quantum appeal is known.        
Taxi fares
12.	I can be very brief about the appeal from the judge’s assessment of the future cost of taxi fares. Although, as Mr Bellamy points out, this did not appear as an item claimed in the schedule of damages, the trial judge accepted as reasonable an award of damages in respect of Mr Annison’s need to use taxis for longer journeys, which he could be expected to make, rather than having to drive in his own car, which he might have been able to do up to the age of 75. The journeys include visiting his son in Chester and visits to friends.
13.	The judge awarded damages based on a “notional figure” of £300 per annum for longer journeys by taxi totalling £2,019. That was calculated by multiplying the notional annual figure of £300 by a multiplier of 6.73. Mr Annison says that the sum was so low as to be unjust. Even a one way trip to see his son in Chester could cost him as much as £400. Tomlinson LJ commented at the permission stage, when he had only heard Mr Annison in person, that he could not understand how the judge had reached the figure of £300 a year.
14.	The explanation for the figure is that the judge could only work on the basis of a notional figure, as she had not been supplied with any hard data about the level of taxi fares, which might have entitled her to make a higher award to Mr Annison. In those circumstances it cannot be said by Mr Annison that the judge was wrong in awarding the amount that she did for this item.
15.	I would therefore dismiss the appeal on this head of damage.    
Future home maintenance and repairs 
16.	The position on this head of claim is less straightforward.
17.	Mr Annison’s Final Schedule of Special Damages as at 26 July 2010 included two relevant heads of future loss: Item 12 for “Future DIY and Gardening” totalling £24, 675.76 on which reference is made to the report of Ms Thurston: and Item 13 “Utility, insurance etc costs” totalling £55,978.04.  In the notes to Item 13 reference is made to Mr Annison incurring “increased costs in relation to damage to the fabric of the property, maintenance and repair over and above that which would have been required in any event, and insurance.” Reference is made to the report of an expert, Mr Peter Ball. A calculation is shown of 13.88 x £4,033.       
18.	Mr Annison contends that the “etc” was a reference to maintenance and repair costs in the report by Mr Ball, while accepting that there is some degree of overlap or duplication between Items 12 and 13. 
19.	A problem emerges when one looks at how those 2 items were set out by the judge in the summary of the heads of special damages at the end of her judgment. She awarded £5,276 for Item 12 (rejecting  a claim for £24,675.70 and £750 for Item 13 (rejecting a claim for £55, 978.04).     
20.	In the main body of her judgment the judge accepted (paragraph 27) Mr Annison’s evidence that, by virtue of his past career skills as a mechanic and electrician, he was previously able to, and did commonly, undertake a wide variety of regular DIY repairs around the home. This involved painting and decorating and maintenance of window frames. At paragraph 37 the judge explained how she allowed the sum of £2,542 specifically for future DIY and a total of £5,276 for future gardening and DIY decorating combined.   
21.	At paragraph 38 the judge dealt with increased levels of future utility bills and repairs. The judge explained why she awarded £750 for “future utility costs”, but she said nothing at all about maintenance and repairs. She neither made an award for maintenance and repairs nor did she say anything about why she disallowed that part of the head of claim. 
22.	This puzzled Mr Annison. He referred to pages in the report made by Mr  Ball  referring (in Section (K)) to ongoing recurring running costs giving rise to a future loss in the sum of £4,033 per annum for maintenance and repairs, the future loss being the difference between what the costs would have been if he had not been injured and what they would be following his injury. According to that report Mr Annison’s head of claim under Item 13 that figure should then be multiplied by 13.88 to produce the amount of £55,978.04.
23.	In a counter schedule dated 15 July 2010 in respect of Item 13 Mr Bellamy conceded a sum of £750 (£300 x 2.89 years), but required the Claimant to prove a claim above that figure. It was noted that the sum claimed included over £3,000 additional costs a year for maintenance and repairs to the Claimant’s property and that it was not properly evidenced. It was assumed to have been taken from Mr Ball’s report. The reasonableness of the claim was denied and it was pointed out that it was dependent on information provided by Mr Annison. A point was taken that Mr Ball’s report was relevant only to accommodation needs, property adaptations and estimated costs incurred in respect of suitable alternative accommodation in the event of the deterioration of Mr Annison’s condition.
24.	It is surprising that none of Item 13 (save the admitted figure of £750) is reflected in the judge’s judgment. Mr Bellamy explained to the court that no evidence in the form of invoices for maintenance and repairs had been produced by Mr Annison and that there had been problems at the trial with Mr Ball’s report, which he and Mr Annison’s then leading counsel had attempted to resolve. The problem was that Mr Ball had been appointed a joint expert under a consent order dated 25 March 2010. He was to be jointly instructed on agreed terms of instruction as an architect to report on the adaptations to Mr Annison’s house recommended by Ms Thurston in her report. 
25.	Unfortunately, Mr Ball reported on areas of dispute other than adaptations to the property. It seems that Mr Annison had made submissions to Mr Ball on the damages claimed under Item 13.  On the front page of the Ball report dated 19 May 2010 there are the words “BASED ON CLAIMANT’S EVIDENCE” and pages 1 to 22 are each headed “(CLAIMANT’S OPINION)” covering costings of a whole range of items outside the scope of Mr Ball’s appointment as a joint expert. Mr Ball’s report went beyond the evidence that would be given by an architect appointed as an expert. It was put to him that he had dealt with a variety of matters not within the scope of what the court had ordered. We have been shown extracts from the transcript of evidence given by Mr Ball confirming that he was a jointly instructed expert. He said, when examined by Mr Bellamy, that he did not know the scope of what the court had ordered by way of an expert report from him. He was referred to the section of the report dealing with Item 13 and the claim for £55,978.04. He said that he was not surprised that the figures in his report were included in the claim, though he was surprised that there was a DIY and gardening claim as well. He gave evidence about the calculation of the figure for loss in the annual sum for loss related to the increased cost of maintenance and repair and about overlap with DIY and decorating in Item 12.
26.	Mr Ball was examined by Mr Picton QC on that figure in relation to Item 13 and its relationship to DIY, and other things such as home maintenance, painting, decoration, gardening and external works. He accepted that there was no way of proving the accuracy of his pre-estimate of cost. 
27.	In his final submissions Mr Bellamy made points about the duplication involved in the calculations under Item 13 and under Item 12 for DIY and gardening. In his final submissions Mr Picton QC dealt with Items 12 and 13 and accepted that, in the light of the evidence of Mr Ball, there was clearly an overlap and that the Claimant could only get DIY and gardening once. He appeared to be suggesting that the Claimant should either get the figure of £55,976 in Mr Ball’s report or a more complicated calculation by deleting Mr Ball’s repair and maintenance figure, allowing the balance and allowing the £24,000 odd for the DIY and gardening claimed under Item 12.
28.	It does not appear that at any point in the hearing was the judge asked to rule for or against the admissibility of Mr Ball’s evidence on Item 12 or Item 13.
29.	Mr Bellamy submitted that the judge’s decision on Item 13 on the available evidence was not wrong. Mr Annison had not disclosed relevant bills to support the amounts he was claiming under this head. That is why the judge’s award was of a nominal sum reflecting what had been conceded by Mr Nolan. Beyond that Mr Annison had failed to prove his pleaded claim under this item. 

Conclusion                      
30.	In my judgment, the appeal should be allowed on the ground that, in relation to Items 12 and 13 of the heads of damage, there has clearly been a serious procedural or other irregularity in the proceedings at trial, which has made the decision on those items unjust: Part 52 CPR 52.11(3)(b).   
31.	The procedural error was in relation to the status of the report made by Mr Ball. Although a joint expert architect appointed to report on matters relating to adaptations to the house, he in fact gave evidence on matters well outside the scope of his appointment. He misunderstood both the scope of his appointment and his position as a joint expert.
32.	Mr Bellamy challenged the relevance and admissibility of Mr Ball’s report. Yet the judge did not rule against the admissibility or relevance of his report.  She did not refer to it in her judgment. Yet there was evidence in the report on Item 13 showing the calculation of a much larger amount than the £750 conceded by Mr Nolan. The judge did not deal with it adequately, either by way of excluding it as irrelevant and /or inadmissible, or by way of admitting it, considering it and giving some reasons for not awarding the amount claimed.
Result
33.	I would allow the appeal on the home maintenance and repair costs head of claim. The evidential position is so unsatisfactory and unclear that the court has no option but to remit that head of claim for determination at a re-trial by a different judge with both sides to be at liberty to call fresh expert evidence relating to that head. 
Lord Justice Richards:
34.	I agree.
Lord Justice Rimer:
35.	I also agree.