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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 >> Bayliss v Lunt [2002] EWCA Civ 716 (9 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/716.html Cite as: [2002] EWCA Civ 716

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE MCKENNA)

		Royal Courts of Justice Strand London WC2 Thursday 9th May 2002

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal from a judgment on damages only of His Honour Judge McKenna delivered in the county court at Birmingham on 12th October 2001. I do not need to go into the facts in detail. They are well set out in the judge's judgment and are well-known to the only persons to whom this matter is of importance, and is of considerable importance, the claimant Miss Bayliss; and, not in fact the defendant Mr Lunt, but the defendant's insurers who I see themselves signed the defence, it being signed by the solicitor of the Eagle Star Insurance Company.
2. What happened was that Mr Lunt negligently knocked Miss Bayliss off her bicycle, liability being admitted, and she had the misfortune to suffer injuries that were serious in themselves and extremely grave in their consequences for her. She suffered some scarring injury, but more particularly an injury to and problems with her left knee. That was extremely serious for Miss Bayliss because she was at school, being then 16 years of age, a very prominent sportswoman, being captain of four school sports teams and a member of two others. Sport was the centre of her life and it was her intention to became a teacher of physical education, for which purpose she already had a place provisionally reserved at university.
3. The injury to the knee has put that career out of her grasp, because she cannot now operate physically in the way that a sports teacher must do. Resourcefully, Miss Bayliss did not simply sit back and complain about that, damaging though its effect must have been to her, but she took advantage of her other A level subject, which had been in design and communication, and attended computer courses to enable her to become a computer assisted design operator. She did not go to university and did not obtain a degree. She continues to be so employed.
4. In these circumstances the judge had to make some not altogether straight-forward decisions as to the level of damages. He made an award for general damages, which has now not been criticised before us, though it originally was in the grounds of appeal; and he also made an award of £2,000 for loss of congenial preferred employment, an award that could hardly be said to have been, and has not been said to have been, too low.
5. The complaint is as to the award he made for future loss of earnings. As will be appreciated, and as the judge recognised, that is a particularly difficult calculation to make when one is faced with a person who is injured before they even start their preferred career. The judge compared the potential income as a graduate teacher with the income that could be secured as a CAD operator, and in that respect he had the benefit of an expert report from a Mrs Challis that was filed on behalf of the claimant.
6. It is probably easiest if I set out verbatim what the judge said about that in paragraph 12 of his judgment:

"Mrs Challis' evidence which, as I say, I accept was that the starting salary of a CAD operator was in the range of £10,000 to £16,000 rising to perhaps £20,000 with five years or more experience but with a possibility of earning more than that, perhaps £24,000 or even in some cases up to £30,000 although her evidence was that it was likely that other qualifications would be needed to support such salary expectations, perhaps engineering qualifications and the like. In her view the claimant could expect a salary in the region of £15,000 to £17,000 at present. By contrast, as a teacher, she could have expected to start at about £17,000 and that her salary would then rise by regular annual increments to perhaps £25,000 after seven years."

7. The judge said that he was going to take the lower end of both salaries, that is to say £15,000 for the CAD operator, £17,000 for a teacher, and assess the annual loss at £2,000. He said that that was a figure that was likely to increase over time.
8. The evidence from the claimant verifying Mrs Challis' assessment supported that, because the claimant said that her understanding was that in the year 2007, that is to say the eighth year of what was to be a 40-year working life, she would have a salary as a teacher of £27,000 and a salary as a CAD operator of £21,000, the differential then being already £6,000.
9. The multiplier was a further difficulty at this age. The judge calculated it as being 26.33, but said that, in the circumstances, a significant discount was indicated and gave a 50 per cent discount, giving a total figure of loss of earnings of £26,000.
10. That assessment is criticised in two ways. First of all, it is said that the figure of £2,000 was too high because it gave no recognition of Mrs Challis' evidence already set out that the salary as a CAD operator might exceed that of a teacher. Although the judge did not spell the point out, I have no doubt that he thought, and I myself think, that Mrs Challis' evidence as to those increments was, and was expressed to be, speculative, and depended upon other qualifications that Miss Bayliss does not presently have and may not wish to take time obtaining. In those circumstances, it was quite right for the judge to put his feet on the ground as best he could, and base the contrast on figures that he actual knew about, rather than those that might or might not accrue in the future. In the totality of the evidence, I do not think that the figure of £2,000 could be said to have been in any way too high.
11. Secondly, it is complained that the calculation gives no credit for what Miss Bayliss earned as a CAD operator during the years when otherwise she would have been at university, because she set out in the schedule showing her relative earnings up to the year 2007 the fact that in 1999, 2000 and 2001, had she been at university, she would have had no salary; whereas as a CAD operator she earned £32,000 in that period.
12. Mr Garner, for the defendants, says, as I understand it, that the judge should have given the defendant credit for the whole of that £32,000, thereby reducing the figure for loss of earnings to nil. That outcome in itself shows the conceptual error in this argument. The multiplicand and the multiplier are not, and were not, presented by the judge as being, and are not in damage theory, actual figures, but are an assessment as best the court can of likely lost earnings over a lengthy period of time. It is not appropriate simply to deduct from their outcome actual earnings that the employee has in fact earned at the start of that period.
13. Secondly, however, even if this were a possible approach, there was no basis upon which the judge could properly have entered on this exercise. Firstly, the only pleading filed by the defendant as to damages was to put the claimant to proof. It is not open to the defendant to introduce at the trial, let alone before us, specific items of deduction. Further, and even if that were not the case, there is no indication before us of what earnings or income Miss Bayliss might otherwise have had, other than "salary", when she was at university. There is no such information because the pleaded case never required that to be filed, but common sense tells one that Miss Bayliss at university would have had a grant which, although not salary, would have been income. She would quite likely have worked in the vacations. She might have been supported by her parents. We know nothing of any of that, and before a deduction such as is argued for in this case could be made it would be necessary for evidence to be examined on that basis. It was not examined because this was never seen to be a point.
14. Finally, one can test this matter by looking at the broad fairness and sense of the judge's award, even taking into account the fact that Miss Bayliss would have had no salary in the first three years of the period we are concerned with. Looking at the matter overall, a basis of £2,000 and a multiplier of 13, giving an overall figure for loss of future earnings of £26,000 cannot in the circumstances of this case even conceivably be said to have been unreasonably high. The judge made no error of principle, but quite apart from that I am quite satisfied that his award in its terms and nature cannot be challenged.
15. The only other point that is raised before us today is a complaint about the judge's costs award. The judge was asked to make a special order for costs and, effectively, not allow Miss Bayliss her costs because the defendant complained that because of the failure on Miss Bayliss' part, or rather of those advising her, to produce a schedule of special damages, they had not been in a position to make a pretrial offer. If they had been properly informed they might have made such an offer.
16. There are a number of problems about that argument. The first is the one that the judge raised, that they had had for several months the report of Mrs Challis and, albeit not with a formal schedule, they were well aware of what the case was on loss of earnings. Secondly, I am, I am afraid, baffled as to how the judge should or could have allowed for this in his costs order because it appears, as we are now told, that an offer was made, but which did not meet the judge's award. The complaint now is that the offer would have been higher if there had been a schedule of damages rather than simply the report of Mrs Challis. That is simply something we are told by counsel and although I, of course, accept that it is on his instructions, if a contingency that remote is going to be relied on it has to be vouched for by evidence on the part of his solicitors.
17. Even leaving that point aside, in a costs order the judge is not called on to speculate about what might or might not have been done in one contingency or another; or to guess, as he would be guessing, a figure whereby he should reduce the award against that contingency even if he thinks that it might or would have eventuated. There is nothing in this point at all. The judge was quite right to make the normal costs order. I would not grant permission to appeal in respect of any of the matters that are raised in this case.
18. LADY JUSTICE HALE: I agree.
Application dismissed. Costs of and occasioned by this applicant will be paid by the defendant to the claimant. Legal aid taxation of the claimant's costs.