Neutral Citation No. [2015] NICA 59	Ref:     	WEI9746	
 			
Judgment: approved by the Court for handing down	Delivered:	22/09/2015	
(subject to editorial corrections)*			
2008/067215

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

________

Between 
MAREK BELKOVIC
Plaintiff/Appellant
and

DSG INTERNATIONAL PLC
First Named Defendant/Respondent
and

FIRST CHOICE SELECTION SERVICES
Second Named Defendant
________

Before:  WEIR LJ, TREACY J, MAGUIRE J
________

WEIR LJ (delivering the judgment of the court)

Introduction

The nature of the Appeal

[1]	The appellant appeals against the amount of damages awarded to him by Gillen LJ in an action for personal injuries and against the order in relation to costs subsequently made by the judge in the action.  

The Background

[2]	From 14 May 2005 the appellant and his brother Radko were working at the respondent’s warehouse premises.  They had been sent to work there by an employment agency, the second-named defendant, which has taken no direct part in these proceedings, the defence of the action and of these appeals having been undertaken by the first-named defendant, the present respondent.  The work consisted of loading, unloading, moving and stacking domestic appliances including heavy items such as refrigerators, cookers and washing machines.  The plaintiff’s case was that on 1 July 2005, when endeavouring with the assistance of his brother to stack one washing machine on top of another, he sustained an injury to his back.  

[3]	The judge considered the liability issue at length between paragraphs [16] and [52] of his extensive written judgment reported at [2014] NIQB 139.  He concluded that the defendants were guilty of both breaches of statutory duty and negligence in the respects which he articulated and found them to have been causative of an injury to the appellant’s back.  He further held that the appellant was not guilty of any contributory negligence.  Naturally these findings have been accepted by the appellant and the defendants have not sought to challenge them by way of appeal.  

The Medical Evidence

[4]	Unfortunately, the same position was not achieved in relation to the medical effect of the accident and the damages to be awarded in consequence of them.  The appellant initially enjoyed the services of solicitors who obtained medical reports from a number of specialists in various disciplines.  The appellant was dissatisfied with the reported conclusions of most of those experts and, it may be, with the legal advice that flowed from them.  In any event he determined to dismiss his legal advisors, rejected most of the medical advice of the experts and decided that his brother Radko should thenceforth act as his McKenzie Friend (“MF”).  Thereafter the course of the litigation was not smooth and we will return to this hereafter when discussing the appeal in relation to the award of costs.  

[5]	At the hearing, which occupied many more days than a case of this description ought to have done, the judge received such medical evidence on behalf of the appellant as he and his MF wished to put forward, including calling and being allowed to cross-examination a psychiatrist who had reported for the respondent, the appellant’s psychiatrist having been dispensed with by him.  The respondent called a number of witnesses in relation to the medical issues but agreed in ease of the appellant not to seek to rely upon the content of the various appellant’s medical reports which had been served pursuant to Order 25.  A distinct and unpalatable flavour of the way in which the MF chose to conduct the appellant’s case may be gained from the examples of his behaviour given by the judge at para [60] and his entire rejection of the allegations made by the MF is recorded at para [61].  

[6]	The judge carefully recorded the appellant’s relevant medical history both pre and post the accident between paras [62] and [68], concluding that while there was evidence which he accepted of a history of a pre-existing episode of low back pain in 1999 he considered it to be of no real significance in the context of the case.  He heard evidence from Dr Levkus, the appellant’s retained neuro-surgeon and from Mr Yeates and Mr Cook on behalf of the respondent.  He concluded at para [69] that there was overwhelming evidence that the appellant had established degenerative changes in the lower back both preceding and at the time of the alleged injury:

“These pre-existing degenerative changes will not have developed in the course of his employment with the defendant.  Lifting the excessive weight may have caused some further damage to the disc accelerating the development of the protrusion that eventually led to his surgery.  In short he has evidence of multi-level disc degenerative disease and it is not likely that the abnormalities which have occurred at 3 levels have followed the lifting procedure.  That situation was probably going to occur by natural means with the due process of time.”

[7]	The judge then set out in detail what had led him to this conclusion.  His words need not be repeated here.  In short, the three medical experts had agreed that there was present a progressive degenerative disease of the appellant’s spine.  There was no precise agreement as to the extent to which the symptoms of the appellant’s degenerative changes had been accelerated by the happening of the accident.  Estimates vary between 12 to 18 months or up to two years and “some years”.  The degenerative changes had not been caused by the accident.  However, the judge rejected the submission on behalf of the respondent that the deterioration of the appellant’s back condition was not connected to this injury.  On this he said at para [73]:

“I do not accept this.  I believed the plaintiff when he told me that after his accident he continued to suffer pain in his back.  Why would he have left his job with the defendant otherwise?  …” 

[8]	He then summarised his conclusions on the physical consequences of the accident by saying at para [74] that he was satisfied: 

“That this accident has contributed to an acceleration of a pre-existing degenerative condition which would have continued to deteriorate even without the accident.   The accident has probably accelerated that process by something in the range of two years.  This is no small matter as in my view the pain and suffering he has endured as a young man for around two years earlier than would otherwise have been the case – including the earlier operative treatment and its sequelae, is substantial and this is reflected in the award I have made.  For this reason the award is somewhat more generous than would normally be the case for two years’ acceleration simpliciter of an inevitable process.”

The allegation of an attributable psychiatric condition

[9]	It was a further part of the appellant’s case at trial that the accident had caused psychiatric injury.  This claim had not been supported by the psychiatrist retained on behalf of the appellant whose services had therefore been dispensed with.  The psychiatrist retained by the respondent, Dr Fleming, had reached a similar conclusion but the MF nonetheless chose to call him as a witness for the appellant and was permitted by the judge to cross-examine him.  Unsurprisingly the witness maintained his position that there was nothing in the appellant’s notes or records or from his own discussion with the appellant to provide evidence of any psychiatric upset or depression.  Based upon that evidence the judge concluded as follows:

“[77]	I consider that there is no objective evidence that this man suffered from any clinically diagnosable psychiatric syndrome, depression or otherwise attached to this accident and that Dr Fleming has correctly summarised the situation when he describes complaints of frustration and normal understandable lowered mood arising out of chronic pain and loss of functioning.  I therefore do not consider it appropriate to make any award for psychiatric disturbance during the two years that I have allowed for accelerated back injury.  However, I have reflected the fact that the acceleration did cause early pain and suffering which did contribute to this frustration and understandable lowered mood in the general damages which I have made.  To that extent I have awarded a slightly higher figure than I normally would otherwise have done in the general damages.

[78]	In summary therefore I consider that this injury at work has probably contributed to acceleration by about two years of his extensive and progressive lumbar disc degenerative disease.  The fact that the prognosis for resolution of his symptoms may be small is not connected to the injury other than this two year acceleration.  None of his symptoms or treatment, physical or mental, after that period can be connected to the injury which is the subject of this claim.   However, that acceleration has caused him pain and suffering and loss of amenity for this period of two years and led to an earlier disc protrusion than otherwise would have been the case. Taking into account the pain and suffering he has endured, his inability as a young man to enjoy the amenities and hobbies of his life including work about his home during that period and the accompanying sense of frustration and understandable lowered mood arising out of chronic pain and loss of functioning for that period, I value his general damages and loss of amenity as £30,500.”

The claims for special damage

[10]	The judge then considered a multiplicity of claims for special damage, almost all of which he rejected as being unsupported by evidence.  He did, however, allow two years’ loss of earnings on the basis that the deterioration of the appellant’s condition had been accelerated by that period and he calculated the loss of earnings at £13,900.  At the hearing of the appeal a question arose as to whether that figure was entirely correct, a matter to which we will later return.  

The nature of the appeal

[11]	It has earlier been observed that the finding of liability for the appellant without fault on his part was not an issue before us.  Indeed, upon the hearing of the appeal the MF complimented the judge upon his analysis of the law and of the facts that had led him to his conclusion on liability.  There was, however, a generalised attack upon the judge’s crucial finding that the accident did not cause the appellant’s back condition but rather accelerated its progress by about two years.  It is plain that the appellant and his MF do not and have never accepted this position; not when the medical experts retained on his behalf expressed that view, not when those retained for the respondent echoed it and not when the judge found on all the evidence admitted before him that it was so.  It may unfortunately be that they will never accept it and will continue to feel the sense of burning injustice that is evident from much of what has been written and said on the appellant’s behalf by his MF.  Even more unfortunately, much of that material has been intemperate in nature and wholly without justification.  Allegations of dishonesty, invention and racism have pervaded the trial in myriad situations where the evidence given or the submission made or the ruling given did not accord with the unshakable view of the appellant and his MF.  However, the appeal was conducted before us in a very different manner.  The MF was polite and to the point and made few of the type of florid allegations that characterised his conduct at the trial and, to some extent, his written submissions for the appeal.  Indeed, he went so far as to volunteer that his behaviour at the trial had on occasion been inappropriate.  It seemed to us that he had reflected upon and modified his behaviour in the light of the account contained in the judgment of his unseemly behaviour at the trial which had introduced quite unnecessary heat and obscured much light.  For his belated change of approach this court was and is grateful.

[12]	However, the fact remains that the evidence on the crucial issue led in one direction only.  No other conclusion but that this was an acceleration of a degenerative condition would have been open to the judge on the evidence and the period of two years that he fixed for that acceleration was a matter for his judgment based upon consideration of the evidence and one that this court considers cannot be criticised.  It is understandable that a lay person may find it initially difficult to accept that an accident which causes a previously able young person to become unable to work is not the causee of his current disability because he would inevitably have found himself in that position after a relatively short further period due to the degeneration even had there been no accident at all.  What is less easy to comprehend is the dogged refusal over years to listen to explanations from experts as to why that be so and the response that such experts were either ignorant, mistaken, dishonest or racist or a combination of those.  Further, that counsel who merely repeat those opinions in the course of argument or a judge who, as he is bound to do, acts upon the evidence which he has received are also to be tarred indiscriminately and in an ungoverned way with the same brushes.  This court finds no substance in any of these unworthy allegations and rejects them as having had any bearing upon the evidence provided to the court both oral and written, in the submissions of counsel for the respondent and in the conclusions and ultimate decision and award by the judge.  It considers that it is, to say the least, most unfortunate that the MF should have made them.  We leave this aspect with the comment that, if the judge were prejudiced against the appellant, it may be thought surprising that he had found in his favour in relation to the disputed factual issues concerning liability.

Conclusions on the medical issues

[13]	This court is entirely satisfied that the judge was right to reach the conclusions that he did and that the reasoning behind those conclusions was fully set out by him and explains and amply justifies them.  The obligation of a trial judge in giving judgment, put at its simplest, is to make it clear to the parties why one has won and the other has lost.  There is no duty on a judge, nor would it be possible in a case such as the present where the appellant advanced a myriad of propositions, many of them repetitive or irrelevant, to deal with every argument presented.  It is sufficient if what he says shows the parties, and, if need be, the Court of Appeal, the basis on which he has acted.  He must identify and record those matters which were critical to his decision.  See English v Emery Reimbold and Strick Ltd [2002] 3 All ER 385 per Lord Phillips MR at page 392 et seq.  The judge in the present case has amply performed that task.  There is no basis upon which his judgment can or ought to be disturbed.  His award of damages based upon his finding of two years acceleration cannot be criticised.  Accordingly, the essential basis of this appeal must fail.  

The computation of loss of earnings

[14]	As we mentioned at para [10 ] above, a question arose at the hearing before us as to whether the judge’s intention to allow two years’ loss of earning was accurately reflected in the award by him of £13,900 in respect of that element.  He dealt with the matter at para [82] of his judgment by saying:

“Although there is clearly some measure of uncertainty about the nature of the work that he did after the accident, it seems to me that a figure of £13,900 is an appropriate net figure for loss of earnings during this period.”  

The derivation for that figure is not expressly stated.  However, it seems likely to have been derived from a report provided to the appellant by a firm of chartered accountants in which figures for past and future loss were computed.  The respondent accepted those calculations “as figures” without prejudice to its contention that no recoverable loss of earnings had occurred.  The agreed figures for year ended 5 April 2006 were given as £9,302.00 for projected net earnings less £5,128.00 for actual net earnings producing a net loss for that tax year of £4,175.  The net loss figure for the year ended 5 April 2007 was given as £9,733 and for year ended 5 April 2008 was £10,155.  It would seem that the judge arrived at his figure by adding the net loss figure for year ended 5 April 2006 and for year ended 5 April 2007 producing a total of £13,908, a figure which he rounded to the £13,900 awarded for loss of earnings for the two year period.

[15]	However the net loss for year ended 5 April  2006 was reduced by the fact that the appellant had been employed between 6 April 2005 and the date of his accident on 1 July 2005.  The judge intended to allow two years’ loss from the date of the accident and not from the start of the tax year in which it occurred so that the consequent calculation would have been:

    Year ended 5 April 2006 – 1 July 2005 to 5 April 2006 (9 months)	= £6,976.00

    Year ended 5 April 2007 – 6 April 2006 to 5 April 2007 (12 months)	= £9,733.00 
 
    Year ended 5 April 2008 – 6 April 2007 to 30 June 2007 (3 months)    =  £2,539.00

    Total Net loss for 2 years from date of accident	    £19,248.00

Mr Fee QC agreed that the figure of £13,900 somewhat understated the correct figure for loss of earnings although his alternative calculation produced a result between that figure and that which this court has calculated.

We propose to substitute the rounded figure of £19,250 for that of £13,900 having noted the judge’s observation that there is uncertainty about the nature of the work that the appellant did after the accident.  That figure for special damages together with that for general damages means that the overall amount of damages will be increased to a total of £49,750 from £44,400.  

The appeal against the order for costs

[16]	Subsequent to his judgment in the action the judge received submissions in relation to the proper approach to the costs of the action and gave his written judgment on the question, reported at [2015] NIQB 22.  Having referred in detail to the relevant legislative provisions and authorities he concluded that, while the appellant should have the general costs of the action on the basis that they followed the event, a number of matters should be disallowed or the amounts claimed abated:

(i)	That the appellant should not be allowed the costs of those medical reports obtained by him which he later abandoned and did not rely upon.

(ii)	That he should be allowed only the costs of the one accountant upon which he relied and not of both those whom he had retained.

(iii)	The payment of the attendance fee of Dr Fleming, the psychiatrist retained by the respondent but appropriated by the appellant to give evidence as part of his case, should be the appellant’s responsibility.

(iv)	That the appellant’s recoverable costs in the trial should be abated by 25% overall and that the respondent should be entitled to offset 25% of its trial costs against the appellant’s recoverable costs.

(v)	That the interest on the damages awarded should be confined to 4 years rather than the six which the action had taken from issue of the writ to completion.

[17]	The first three of these adjustments to the usual order are self-explanatory and appear to us to be self-evidently reasonable.  As to the fourth, the judge adverted to his comments at paras [3], [5], [9] and [60] of his earlier judgment as to the manner in which the MF had conducted the appellant’s case at trial and the extreme prolongation of it that had resulted.  In that connection he referred at para [17] to the observations of the Court of Appeal in Mikhail v Lloyds Banking Group [2014] NICA 24 and to that court’s affirmation of the comments of Girvan LJ in Peifer v Castlederg High School and Western Education and Library Board [2008] NICA 49 wherein he deprecated time wasting, repetition, the failure of parties to concentrate on relevant issues and the pursuit of irrelevant issues and questions. 

[18]	The MF submitted to us that, if he had been guilty of protracting the proceedings, the appellant ought not to suffer from his failure by having his costs reduced or part of those of the respondent visited upon him.  We do not agree for the reasons articulated by Girvan LJ. The appellant chose to dismiss his legal advisers and allowed his case to be presented in a fashion which his MF chose to adopt and persisted in employing so that the financial consequence must be borne by him.  We consider that the behaviour of the MF so far unreasonably extended the overall period occupied by the hearing of this action that he ought not to be permitted to benefit nor the respondent be obliged to suffer for the consequences of that behaviour.  Indeed, we consider that the adjustments made to the usual order by the judge are a modest reflection of that consequence and we can conceive of no reason to interfere with it as a matter of principle.  

[19]	However, we were a little concerned that the wording of the costs order might be interpreted by the taxing master as a direction to also reduce the appellant’s proper outlays as opposed to any sum allowed to him for costs and similarly to allow the respondent to set off a proportion of its outlays in addition to the costs of solicitor and counsel.  Mr Fee QC confirmed that the respondent’s submissions on costs had not sought or intended to go beyond a reduction in the appellant’s costs and to the set off of some of the respondent’s costs and it seems clear that the judge accepted that the adjustments should be to the costs element and not to outlays because at para [18] he said:

“Reviewing the matter as a whole I have concluded that the plaintiff’s recoverable costs in respect of the actual trial should be abated by 25% overall and the defendant should be entitled to offset against the plaintiff’s recoverable costs, 25% of its trial costs and during which period counsel and solicitor were quite unnecessarily engaged in parts of the trial which did not serve to progress the matter in any meaningful fashion.”  (Emphasis applied)

Accordingly, we intend to slightly amend the terms of the costs order so as to make it clear to the taxing master that the abatement and set off relate solely to costs and not to outlays.  We do not allow any part of the appeal in relation to costs.

[20]	We will hear the parties in relation to the costs of both appeals. 

[Having done so, the court determined that there should be no order as to the costs of either appeal]