England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT AND FAMILY COURT
(LOWER COURT JUDGE: HIS HONOUR JUDGE TIMOTHY SMITH)

		Royal Courts of Justice Strand London, WC2A 2LL
		23 February 2016

LORD JUSTICE FLOYD:

1. This is a renewed application for permission to appeal from the judgment and consequent order of HHJ Timothy Smith sitting in the county court at Northampton on Friday, 6 March 2015. The action concerned an accident to the claimant and applicant, Mr Darren Hills, who was working as an RAC patrol man. He had been called out to attend to the car of an RAC member on the M4 motorway when a heavy goods vehicle driven by the defendant, Mr Snoussi, drove into the back of patrol van because Mr Snoussi had been asleep at the wheel. Fortunately, Mr Hills managed to avoid serious injury by diving out of the way, across the barrier onto the hard shoulder of the motorway. However, he was subsequently diagnosed with Post-Traumatic Stress Disorder involving, among other things, an inability to work on motorways and busy roads, quite understandably in the light of the incident.
2. The judge made various orders in favour of Mr Hills but this appeal concerns the fact that he awarded the claimant 18 months' loss of earnings on a Smith v Manchester basis in the approximate amount of £36,000. The judge said that the first issue that he had to decide was whether the claimant had persuaded him on the balance of probabilities that, but for his PTSD, he would have remained in the employment of the RAC. He concluded at paragraph 19 that the claimant had not led sufficient evidence to discharge the burden on him to prove this key element of his claim and gave five reasons, all of which I need not repeat here. Prominent among the judge's reasons, though, was the fact that the claimant was suffering from a number of different conditions and in particular symptoms relating to his back. He had a previous history of back pain going back to 1989 and in June 2008, shortly before the accident, he was said to be struggling with his job, and the HR department had already at that stage been involved. The judge turned to the question of future loss of earning capacity at paragraph 30 of his judgment. The claimant's case, of course, had been based on the allegation that the claimant had lost his job as a consequence of this accident. The approach advocated by the claimant in those circumstances was to calculate a multiplier, comparing an uninjured multiplier to the working age of 65 with a disabled multiplier to the same age. That is the approach set out, as the judge records in that paragraph, in the Ogden Tables, which the judge recognised should be used where possible and appropriate in order to avoid what might otherwise be the dangers of potentially arbitrary judicial assessments.
3. However, the judge went on to say that an Ogden Tables approach was not justified in the present case. Although he considered that the claimant was properly categorised as disabled and so the appropriate tables in the Ogden Tables could in practice be used, he considered that that approach would in some part ignore the fact that he had found that the claimant could not prove that he had lost his job as a consequence of the injuries sustained in the accident, that it ignored the claimant's physical condition at the time that he lost his job and that it failed to take into account that there were a whole host of other comorbid conditions, both then and remaining, that have affected the claimant from time to time and each of which was of some significance.
4. In paragraph 34 the judge said this:

"When I consider the approach to be adopted I am faced with a choice between a traditional Smith v Manchester type lump sum award and applying the Ogden Tables in an appropriate way that reflects all matters … If I were to take the Ogden approach, as I am invited to do by the claimant, I would necessarily have to be building into it elements of considerable uncertainty to reflect the factors that I have already indicated as to the concurrent effect of the other conditions. I would also have to adjust the appropriate multiplier and therefore to tinker with and adjust the reduction factors that are applicable to make an appropriate allowance as to the degree of disability that I consider to be appropriate. It does not follow that simply because a person is disabled that one therefore applies an unadjusted reduction factor to the base multiplier. One does not. One has to stand back and make an appropriate assessment as to the particular claimant and the particular effect of that disability which, in this case, is limited. Were I to do that, and to additionally factor in the other issues, the effect upon the reduction factor would necessarily be rather an arbitrary figure. Indeed, if I were to adopt this approach I would necessarily be increasing the reduction factor by a significant factor to be close to what would, in any event, be the non-disabled multiplier."

Overall therefore the judge considered that an appropriate order would be one that was equivalent to one-and-a-half years' net income for the claimant.

5. There were originally six grounds of appeal, but in his advocate's statement and in his oral argument this morning Mr Ian Pennock, who appears on behalf of the claimant, has taken what he describes as a pragmatic and realistic approach and seeks permission to appeal on the basis only of grounds 2 and 3. Ground 2, which is the principle ground, is that the judge fell into an error of law and fact when he failed to apply, as should be applied in the normal course of events, the Ogden Disability Tables to predict the claimant's future loss of earnings upon a multiplier and multiplicand basis.
6. In his very helpful advocate's statement Mr Pennock goes on to explain that the process of adjusting the Ogden Tables in a case such as this was not as complicated as the judge would have it. I will not rehearse the details of what is said, but in essence Mr Pennock submits that only two adjustments would be necessary. To my mind, however, Mr Pennock's statement illustrates the difficulty of applying the Ogden Tables in a case such as this, rather than the contrary.
7. Although the statement purports to adopt generous discounts for various adjustments, it seems to me that those discounts are in essence arbitrary, and the judge was entitled to reach the conclusion that the reduction factors in the present case would be likely to be so swingeing that the uninjured and disabled multipliers would approach each other.
8. Overall, I consider that the judge adopted an unimpeachable approach. He started by looking at the possibility of applying the Ogden Tables but in the end concluded that they were not appropriate to the present case. That approach does not disclose any error of law. Indeed in Billet v Ministry of Defence this court, through Jackson LJ, made clear that in cases of minor disability it is possible to depart from the Ogden Tables and make a Smith v Manchester type of award. Although it is possible of course to distinguish Billet on the facts, nevertheless it seems to me that this court would not be justified in interfering with the judge's evaluation on the facts of this particular case.
9. For those reasons, I do not consider that in this area, which necessarily involves a number of subjective and approximate evaluations, the judge fell into any reviewable error. An appeal would therefore have no realistic prospect of success and there is no other reason why this court should hear an appeal.

Order: Application refused