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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bahia v S P Tyres (UK) Ltd [2001] EWCA Civ 1756 (9 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1756.html Cite as: [2001] EWCA Civ 1756, [2002] Emp LR 91, [2002] IRLR 80, [2002] ICR 321

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(HIS HONOUR JUDGE PERRETT QC)

		Royal Courts of Justice Strand London WC2A 2LL Friday 9 November 2001

1. LORD JUSTICE LATHAM: This is an application for a permission to appeal an order of His Honour Judge Perrett QC dated 13 July 2001 in a personal injury action brought by the claimant against his employers.
2. The claim was based upon the fact that he had, as a result of his working conditions, developed tennis elbow. It was agreed by the doctors who examined him and who provided reports and a joint statement, that it would leave him at a disadvantage on the open labour market because any repetitive work which was likely to involve the use of the arm, in particular repeated forceable use of the hands or heavy lifting, would cause his symptoms to recur.
3. The essential issue before the judge, apart from the matter of general damages, was the extent to which that injury, which it was accepted was the result of fault on behalf of the defendants, affected his earning capacity. The judge concluded that he could properly take as his pre-accident earnings capacity the earnings applicable to a person carrying out the same job that the claimant was doing, and then deducting from that the amount which he concluded was the claimant's post-accident earning capacity. For this he took a figure not dissimilar to the actual earnings of the claimant at the time of the hearing before him. In the circumstances, the judge was prepared to give a full multiplier to the resulting multiplicand and the end figure amounted to £114,000.
4. It is said on behalf of the defendants that the judge was at least arguably wrong in his approach. First, he failed to give proper effect to the inevitable vagaries of the employment market. In particular he failed to have regard to the fact that in the area of work which the applicant himself indicated he wished to continue (work at Fort Dunlop) there would have been inevitable redundancy in the year 2000 and a consequent gap in the earning history. He also made no other reduction, either in the multiplier or the multiplicand to reflect possible increases in his earning capacity by reason of his abilities or increased skills over the years.
5. It is submitted in those circumstances that the judge should have either taken a lump sum approach, as he would undoubtedly have been entitled to take. Alternatively, he should have adjusted either the multiplier or the multiplicand to take into account the uncertainties which the defendants say were inherent in the position of the claimant.
6. It seems to me that, as a matter of argument, all those points were available before the judge, who is an extremely experienced judge, particularly in this type of case. He is also experienced in the position of employees in the West Midlands, and he cannot have in any way been unclear about the nature of the arguments that were being put before him on behalf of the defendants.
7. Nonetheless, the judge came to the conclusion, having judged the claimant himself, that he was doing the best as far as his earning capacity was concerned. He formed the view that his current earnings were an appropriate base from which to judge the earnings capacity, and that the clear evidence of the doctors was that his earning capacity was significantly reduced by reason of the nature of the injury he had sustained.
8. In those circumstances the judge could not be said to have been wrong to have taken the base for the multiplicand he did by taking the earning figure of his pre-injury earning capacity. In those circumstances, whilst one can understand that there may be judges who would have taken a different view as to the vagaries of the employment market for the future, in an area which is inevitably fraught with uncertainty, I do not consider it would be possible to say that this court would be likely to interfere with the judge's ultimate conclusion.
9. It follows that I would refuse permission to appeal.
Order: Permission to appeal refused.