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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 >> Samuels & Anor v Benning [2002] EWCA Civ 858 (22 May 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/858.html Cite as: [2002] EWCA Civ 858

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE RICE
(Southend County Court)

		Royal Courts of Justice Strand London WC2 Wednesday, 22nd May 2002

1. LORD JUSTICE LAWS: This is a claimant's appeal against the judgment of His Honour Gordon Rice, sitting as a Deputy Circuit Judge, given on 31st May 2001 at Southend County Court. On that day judgment was entered in favour of the appellant for the sum of £77,074.40. Permission to appeal on certain grounds was granted on the papers by Lord Justice May on 23rd August 2001 and on the remaining grounds by Lord Justice Judge on 17th October 2001 after a "without notice" hearing. I shall explain the grounds of appeal in due course.
2. At about 8 pm on 15th November 1995 the appellant, who was then employed by T G Motors Ltd as a recovery vehicle driver, was engaged in recovering a vehicle damaged in an earlier accident near the Raleigh flyover on the London bound carriageway of the A127. He was struck by a motor car driven by the respondent. When proceedings were commenced on 4th February 1997 the appellant's employers, T G Motors Ltd, were joined as second claimants. However on 11th June 1997 they accepted a sum which had been paid into court in satisfaction of their claim and so they dropped out of the picture. On 8th October 1997, the respondent having conceded liability, the district judge entered judgment for the appellant by consent for damages and costs to be assessed. Accordingly, the issues before the deputy judge at trial and those before us on appeal have been concerned with quantum only.
3. The appellant was born on 26th May 1961. He married in 1993. At the time of the accident he had two small children. The following description of his injuries, physical and psychological, given in the appellant's skeleton argument, is, as I understand it, accepted by the respondent:

"The appellant was thrown some 20 feet down the road and suffered a brief period of unconsciousness lasting a couple of minutes. He sustained an injury to his head, soft tissue injuries to his neck and back, an undisplaced fracture of the right acetabulum and a fracture of the right superior pubic ramus. As a result of his injuries he suffered continuous aching and pain in his neck, particularly between the shoulder blades, difficulty in bending forwards, pain and aching in his back, a restriction in his walking distance (initially he was limited to quarter of a mile) and aching in the right groin area. He has difficulty carrying things. He also suffers from a post traumatic stress disorder, headaches, impaired memory and concentration and experienced a dramatic personality change. Prior to his accident he was a happy sociable person. After his accident he became intensely moody and irritable, he loses his temper quite irrationally for no good reason. He now has to be careful about being in the company of others and secludes himself from others and his family to cope with this problem. As a result of the accident he became a cynical and embittered person."

4. That summary was vividly put across to the judge in the evidence given by the appellant and also by his wife.
5. Although he had worked for T G Motors for some 3 weeks only before his accident, they paid him his basic salary for the whole period he was off work after it, that is, until 2nd June 1996 when he returned to light duties. However, as the judge accepted, he had gone back too soon. He was not fit for the work, and for that reason he was dismissed with effect from 23rd July 1996.
6. In 1999, having first undertaken an Access to Teaching course in 1998, he enrolled with the Anglia Polytechnic University to study for a BA Degree in Humanities at its Benfleet campus, which is not many miles from the appellant's home. His evidence to the judge was that he hoped to obtain his degree in the Summer of 2002. I understand that date has since gone back. This initiative of the appellant is of some importance because the judge criticised it; not, I hasten to say, as lacking any intrinsic or educational merit - indeed, quite the contrary - but because the judge considered it a wholly unrealistic step to take as part of any endeavour by the appellant to obtain training for some form of paid work which his disabilities after the accident might allow him to undertake. The judge noted that the appellant had left secondary school with no academic qualifications, and throughout his working life before the accident he had had physical jobs of one kind or another. Following the accident, in 1998 and thereafter, he aspired with the aid of the degree he hoped to obtain to the teaching profession. The judge considered - these are my words - that that ambition was simply not in the real world.
7. The judge's award of £77,074.40 was composed as follows. He gave £20,000 general damages for pain, suffering and loss of amenity, and £45,917 special damage, that is, for financial losses incurred before trial. As I understand it, the balance was made up of interest. Concealed within these figures is the fact that the judge awarded nothing at all for future loss of earnings beyond 24th July 1999. The significance of that date arises thus. T G Motors Ltd had got into financial difficulty and were bought out by another firm on 24th July 1998. The respondent accepted that the appellant would have remained employed by T G Motors Ltd until 24th July 1998 had there been no accident, and would have been in full time employment for the year following. But the respondent's case was that in the events which have happened, after the accident the appellant could and should have retrained and found other employment by 24th July 1999. This the judge accepted, awarding, as I have said, nothing at all for any loss incurred after that date.
8. This aspect of the judgment is the subject of appeal on grounds 2, 3 and 4 for which Lord Justice May gave permission on the papers on 23rd August 2001. I will postpone my consideration of that part of the case until I have dealt with the more minor aspects in relation to which Lord Justice Judge gave permission on 17th October 2001.
9. Ground 1 is much narrower in scope than grounds 2 to 4. It involves a relatively modest difference between the judge's award and the appellant's contention in relation to the appellant's claim for loss of earnings in respect of the period 24th July 1998 to 24th July 1999. The judge awarded £12,767. As is shown in the useful revised schedule, which was completed by both parties and includes against each item the figure awarded by the judge or agreed where that happened, the respondent had, upon this part of the case, proposed a figure of £10,687.04. That reflected the appellant's stated net weekly wage with T G Motors of £205.52 multiplied by 52. The appellant had contended for £14,040 based on £270 per week net. That latter figure was the average of what were said to be the wages at the time of a recovery driver, a cable layer and a goods vehicle driver, all of them jobs which the appellant might have expected to get after he left T G Motors. The judge took a middle position; hence his figure of £12,767. This is what he said:

"Given the fact that he has been allowed the extra £40 and also that he was only with the claimant firm for a short period of time, I would not be ready to increase his earnings, it being subject to too many vagaries, by the amount sought. However, I would in fact, having found as I have in respect of paragraph 1, find that he is entitled to more than the £10,000 odd offered by the [defendant], but not the amount claimed. I find that he is entitled to £12,767; that is another year. In other words, half-way, in effect, between the two figures advanced."

10. The reference there to £40 is to the earlier acceptance by the judge of the appellant's evidence that after 3 months' employment by T G Motors his salary would have been increased by £40 per week, effectively to mark the successful completion of a probationary period. The figure of £12,767 for the year July 1998 to July 1999 reflects lost earnings at the same level, that is to say, £245.52 per week net.
11. The appellant says that beneficial tax changes in April 1997 and April 1998 would have increased his net earnings and would have been reflected in any new employment in 1998. Moreover, he in fact received an increase in gross basic pay of between £10 and £20 per week before he was dismissed by T G Motors. Mr Scott showed us two of the weekly pay slips. Further, he earned additional overtime pay after his return to work in June 1996. These factors were not reflected in his loss of earnings claim from 24th July 1996 to 24th July 1998. It is said that the net claimed figure of £270 per week was supported by the appellant's own evidence before the judge. The appellant said in his statement at page 124 of the bundle that a number of employees of T G Motors were taken over by the new firm in 1998 and he would have sought to be taken over also.
12. In granting permission to appeal on ground 1, Lord Justice Judge said this:

"In view of Mr Scott's submission this morning, I accept that he has a seriously arguable point about the absence of findings made by the judge in relation to increases in pay, overtime payments and changes in the tax regime, and that if those matters had properly been taken into account then the figure put forward in the paper contentions before the judge would have been established. In effect, though he did not say it, Mr Scott was underlining that the figures in that document were not the negotiating figure but a genuine pre-trial analysis of what the loss amounted to."

13. As will be apparent, all that is at stake on this part of the case is the difference between £12,700 odd and a little over £14,000 claimed under this head by the appellant.
14. In my judgment, the judge was entitled to arrive at the conclusion he did. His finding implies that the appellant would have been immediately re-employed at the same figure he claimed for loss of earnings in relation to T G Motors. The judge was entitled to conclude that there were too many vagaries to find the higher figure proved. The appellant might not have found alternative employment immediately, and the whole period in question here is only one year. There are always difficulties in proving a counterfactual, that is, what might have happened but did not. I think the judge arrived at a fair and proper result on this part of the case.
15. I turn next to grounds 6 and 7 (the appellant makes it clear in a supplemental skeleton that ground 5 is not pursued). These grounds concern the appellant's interest in and capacity for do-it-yourself activities. It is simplest first to recite the complaints as they are shortly set out in the grounds:

"(6) the failure to award anything at all for future loss of capacity to undertake DIY work was unjustified on the evidence adduced before him;

(7) the judge was wrong to conclude that the claimant's inability to undertake DIY work was to be equated to the loss of a rewarding hobby which fell to be compensated within the award of general damages for pain, suffering and loss of amenity."

16. The parties' schedule, to which I have referred, shows the appellant's claim under this head as £8,500, that is £500 per annum and a multiplier of 17. I think it was clear on the evidence that the appellant was an accomplished handyman or craftsman in the home; indeed, so much is not disputed. His evidence upon the point was uncontradicted and was supported by that of his wife, nor was it rejected by the judge. The appellant and his wife had to move after the accident - or, at any rate, did so, and there is no complaint that they did so - to a larger house which however was in a run-down condition. The appellant's case is, of course, that but for the accident he would have done many works at home himself.
17. The respondent had accepted that £1,500 was properly due to the appellant in respect of the value of do-it-yourself works the appellant might have done but for the accident in the years before the trial. The judge considered that that concession was generous. For future DIY activities and their valuation the judge merely said the claim was too uncertain and remote, and it was the choice of the appellant and his wife to move to the new address.
18. The respondent's case on this aspect (see paragraph 9 of the schedule) was put on this basis, that the appellant had fully recovered from the physical effects of the accident by the date of trial, or at least that his continuing physical symptoms were unrelated to the accident, so that any failure or inability to carry out do-it-yourself tasks could not be laid at the respondent's door. However the respondent had abandoned just such a contention in the context of the loss of earnings claim, and, in any event, the judge did not proceed on the basis that the appellant had thus fully recovered from the effects of the accident.
19. Given the respondent's acceptance, albeit generous, that £1,500 was due in relation to DIY for the pre-trial period, in my judgment, the better view is that something further is due for the post-trial future but not the full figure of £8,500 claimed.
20. Mr Scott refers in his skeleton argument to authority to the effect that loss of this kind should be assessed on a multiplicand/multiplier basis (see Davy v General Steam Navigation Co Ltd [1980] 2 Lloyd's Rep 415) and that the going rate is perhaps £750 per annum. A claim of £500 therefore is hardly excessive. I would simply award an additional £5,000 under this head. That, of course, represents a multiplier of 10. More work would fall to be done in the earlier years, in my judgment, especially I think given the outstanding jobs in the house he and his family have moved into. It may be that, having regard to Mr Cheetham's submissions for the respondent, on the particular facts here £500 is a somewhat generous multiplier. But I would not put great weight on this last factor. The modesty of the sums actually spent by the appellant on jobs which, but for the accident, he might have executed himself is primarily explicable by the fact that he was, on any view, a man of slender means. Taking the multiplicand at £500 and the multiplier at 10 seems to me to produce a just result.
21. I turn next to what was ground 8 in the notice of appeal. That ground concerns the figure of £20,000 awarded for general damages for pain, suffering and loss of amenity. The appellant says that £20,000 is too low; £25,000 was the bottom of the range given the cases concerning injuries of this kind to which Mr Scott has referred us.
22. I have already described the appellant's injuries, and I have read the medical reports. With respect to Mr Scott, I would decline in this case to add to the jurisprudence relating to general damages for injuries of this sort. The appellant's injuries had a number of different facets, physical and psychological, as will be plain. The judge had many years' experience of such cases. He chose a figure which lay between the figures proposed to him by experienced counsel. I would leave his award alone, given that the judge must, of course, have made his own assessment of the appellant who appeared before him. I consider that £20,000, though without doubt on the low side, was within the range of awards properly open to him.
23. I turn to grounds 2, 3 and 4. Their effect is that the judge is said to have been wrong to reject altogether the future loss of earnings claim as after 24th July 1999. The judge had quite a lot to say about the various considerations which affected his decision on this part of the case. Here is his final summary:

"The serious difference follows from July 1999, in that now it is said that there should be, again, a payment for the year up to September 2000, then a further one for the following year and then for future loss of earnings. This is the main body of the claimant's claim. Having found as I have, and for the reasons I have given, I am satisfied that by July 1999 - some [it says 4 but means] [3] and three-quarter years after the accident - he should have been in the position to have re-trained himself so as to take on alternative employment. He has not done that. Indeed, all he had done was, in the previous year, gone along to the local municipal college and acquired certain basic skills. That was something which he should have done earlier, and then he should have embarked upon (given his academic background) a less ambitious course of taking a university degree, which is unlikely to provide him with any employment. As I have said, it was primarily geared to teaching, with a possibility of working for the social services, but mainly for teaching, for which he is totally unsuited. I would not be prepared to allow him anything in this respect."

24. The passage reflects earlier findings by the judge summarised in paragraph 15 of the appellant's skeleton under 9 heads. I will briefly recount them:

"15.1 the appellant's decision to re-train to become a teacher was misconceived and misdirected - .....

15.2 the appellant ought not to have set his sights on re-training for a job where he could be in charge - .....

15.3 the appellant should have applied his mind to alternative forms of employment in July 1996 when the appellant was dismissed by T G Motors Limited as indicated by the medical experts - .....

15.4 if the appellant had set his sights on a more humble basis he would no doubt have been able to obtain employment - .....

15.5 the appellant had been too slow in taking up the medical treatment - .....

15.6 the appellant had succeeded on the course he had taken - ..... "

25. I interpolate: that, if anything was a factor in the appellant's favour so far as it might go.

"15.7 it should have been obvious to the appellant in 1998 that he was totally unsuited to a job as a teacher - .....

15.8 medical advisers had given advice about suitable employment - .....

15.9 had the appellant pursued a different course in 1996 he would by now be in gainful employment - ..... "

26. On this part of the appeal it is submitted for the appellant that at least on the judge's approach the issue is one of mitigation of loss, and upon that issue it is settled law that the onus lies on the negligent defendant to show that the claimant ought, on the facts, reasonably to have pursued some course of action which he did not in order to mitigate his loss. He does not have to take the most efficacious course. That would be artificial. But the defendant must put forward a concrete case to demonstrate what the claimant might reasonably have done but failed to do. I should add that there is clear learning to the effect that the question of mitigation of damage is a question of fact not law (see Payzu v Saunders [1919] 2 KB 581 in which Bankes and Scrutton LJJ were in agreement on the point) and "The Solholt" [1983] 1 Lloyd's Rep 605 per Sir John Donaldson MR. The detailed references are given in McGregor on Damages 16th Ed, para 300.
27. Mr Scott's submission made in his skeleton, and repeated to us today, emphasises the fact that there is no finding at all as to what particular employment the appellant might actually have obtained had he sought to re-train or qualify for some new kind of work in 1996 or thereafter, or what level of earnings he might have achieved. It is said that the defendant put forward no concrete case to show what the appellant should have done by way of mitigation of damage. Given those particular factors, and Mr Scott's principal submission to the effect that the appellant's undertaking the university course which he did was a wholly reasonable thing to do, it is submitted that the only fair way in which any future loss should properly fall to be assessed here is by acceding, in effect, to the whole claim put forward on a multiplier/multiplicand basis.
28. In my judgment, there is clearly some force in the respondent's case that the appellant failed to mitigate his loss from 1996 onwards, certainly from 1998. He was a young man. He was by no means totally disabled. He had energy and enterprise left to him, as his enrolment for the university course itself suggests. He took no realistic steps, in my view, to equip himself for paid work which he might reasonably expect to get. I accept that the respondent did not put forward a plain concrete case as such and, in addition, it is clear that a failure to mitigate does not bar any claim at all for damages under the head in question.
29. In his supplemental skeleton argument Mr Scott cites McAuley v London Transport Executive [1957] 2 Lloyd's Rep 500 for the proposition that where the injured party has failed to take reasonable steps to mitigate his loss the damages he may recover from the tortfeasor are to be measured by reference to what he would have recovered had he mitigated the loss properly. It is notable in this case that the expert medical evidence was all agreed, so no doctors were called. Indeed, the respondent called no live evidence at all. The only witnesses were the appellant and his wife. I accept there are measures which the appellant could and, despite Mr Scott's submissions to the contrary, possibly should have taken: accepting, at any rate, some medical treatment for the depression from which he suffered; accepting enrolment on a pain management programme as recommended by Dr Naylor in 2000: quite apart from re-training of a kind perhaps more practical than the degree course upon which he embarked. At any rate it seems to me that the judge was entitled to look at the case along those lines.
30. At the same time however we should not lose sight of the fact that the appellant is the innocent party here, and also that there was hard objective evidence that his injuries have significantly disadvantaged him on the labour market, and such disadvantage would still be there however much he mitigated his loss. A perusal of Dr Warren's report of 23rd March 2000 (he was the clinical psychologist), Mr Thakkar's report of 29th April 2000 (he was the consultant orthopaedic surgeon), Dr Naylor's report of 11th May 2000 (he was the pain management consultant) and, finally, Dr Hawke's report of 31st October 2000 (he was the consultant neurologist), all support the proposition that the appellant was not the man he was before the accident, physically or psychologically.
31. In my judgment, the position is that the appellant has plainly proved a significant deficit in his employability into the future. But he has, by no means, proved that he could not reasonably have been expected to obtain any employment whatever after July 1999 and there is some force in the general proposition that he has not mitigated his loss. Neither party has adduced evidence of what a realistic position might be in relation to the appellant's future loss. However his disadvantage on the labour market seems to me to be supported by his evidence (see his statement at pages 119 and 120 of the bundle) of his unsuccessful efforts to get work before he started his university course. I do not consider that the appellant proved before the judge a continuing loss of earnings capable of being assessed by the application of a multiplier and multiplcand. There is not the evidence upon which that exercise could properly be performed. It has to be remembered that had there been no accident the appellant would not simply have continued indefinitely in T G Motors' employment since, as I have shown, they were taken over in 1998. He would, in any event, have had to seek some other means of earning his living. Although, as Mr Cheetham submits, the matter was not put this way before the judge, in my view, this is one of those cases along the line of authority beginning with Smith v Manchester Corporation [1975] 17 KIR 1, where justice requires the court to arrive at a single sum to reflect the appellant's reduced competence in the labour market.
32. I note the nature of his employment history in which some of the jobs he did were heavier than others. The most one can say is that on the facts the appellant was not and is not unemployable but his employability is reduced to a substantial extent.
33. I consider that an appropriate figure on this part of the case would be £35,000, which is a little under 3 years' worth of the annual figure represented in his claim for lost earnings during the period he would still have been working with T G Motors. I intend this figure to reflect the fact that, in part, it relates to a period before trial.
34. To the extent that I have indicated and for the reasons I have given, I would allow this appeal.
35. LORD JUSTICE TUCKEY: I agree.
36. LORD JUSTICE KENNEDY: I also agree.
Order: Appeal allowed