Legal Watch:Personal Injury29th July 2015Issue: 072

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar - You the client | 21.04.16 | The Wellcome Collection, London

In this issue:

• Damages

• Civil procedure/expert evidence

• Costs

DamagesIn Legal Watch: Personal Injury 33wereportedthefirstinstancedecision in Willett v Ministry of Defence and we commented at the time that the judge’s approach to the claimant’s claim for future loss of earnings was unusual in a number of respects. Not surprisingly the case has now been before the Court of Appeal and is reported at (2015) EWCA Civ 773.

The claimant/respondent was aged 30. He had been employed by the appellant/ defendant as a Lance Corporal and suffered the injury in February 2009 when undertakingphysical exercises in cold weather. He claimed that his condition had been caused by the army’s failure to provide suitable footwear. Following treatment, hewas found to bemedicallyfitfordeployment,butheleftthearmyinOctober2011. He immediately found new employment as a lorry driver. Hemaintainedthathecontinuedtosuffervarioussymptomsin cold weather. The judge accepted his evidence that he had difficulty in doing various household tasks and alwaysstayedinsideincoldweather,limitinghisabilitytodovariousthingssuchasplayandengagewithhischildren,undertakegardeningandDIY,swimandplay rugby.Heconceded thathecontinuedtogofishingandclaypigeonshootingallyearround,butonlyingoodweather.

The claimant’s principal claim related to loss of future earning capacity. His earnings as a lorry driver were the same as his earningsbeforehis injury.However, twoexpertsagreedthatalthoughhehadanexcellentdrivingqualificationandagoodCV, ifhe losthispresent jobhewouldbeatadisadvantageinfindingnewemploymentbecauseofhis injury.The judgefound that the claimant’s injury was minor and that he was ‘disabled’,asthattermwasdefinedintheexplanatorynotestothe Ogden Tables,butonlyjust.Hedeterminedtheclaimant’sfuture earning capacity by using the Ogden Tables A and B,suitably adjusted. He awarded damages for loss of future earningcapacityof£99,062.04andgeneraldamagesforpain,sufferingandlossofamenityof£12,500.

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The defendant appealed and submitted that (i) an award of £12,500forgeneraldamageswasoutsidethepermissiblerange for the claimant’s minor injury; (ii) he was not ‘disabled’ withinthedefinitionintheOgden Tables,butevenifhewas,damages would have been more appropriately assessed using the Smith v Manchester method.

The Court of Appeal held that the award for general damages might have been too high if the court had been proceeding onthebasisofaminornon-freezingcold injury.However,the judge had accepted the claimant’s evidence about the continuingeffectsofhisinjuryandtheinterferencewithhisnormal life. The instant court could not go behind the judge’s findingsof factconcerninghiscontinuingsymptoms.Thejudge had properly carried out the exercise of identifying where theclaimant’s injuriesfittedwithin theconventionalframework for determining general damages. He had notmovedoutsidethepermissiblebracket.

The explanatory notes to the Ogden Tables stated that a person was disabled if his condition substantially limited his ability to carry out normal day to day activities within the meaning of the Equality Act 2010.However,theSecretaryofState’sguidancenotesonS6 (5) of the Act were of limited assistance because they tended towards the extreme. It was appropriate to adopt the approach set out in Aderemi (2013). The claimant had no difficulty working as a lorrydriver and could go fishing and clay pigeon shooting allyearround,providedtheweatherwasgood.However,thefocus had to be on what he could not do as a result of his injury.ThejudgehadacceptedthathecouldnotundertakeDIY and gardening in cold weather; that he could not play rugby or swim regularly; and that he could not play with his childrenoutsidewhenitwascold.Inviewofthat,thejudgehad been entitled to reach the conclusion that the claimant’s injuryhadasubstantialadverseeffectonhisabilitytocarryout normal activities and that his condition qualified as adisability,evenifonlyjust.

There would be many instances where the use of Tables A to D would be a valuable aid to determining a claimant’s loss of earning capacity. However, the instant case wasnotoneofthem.Someofthebandsinthetableswere,of

necessity, extremely wide and ‘disability’ covered a verybroad spectrum. The claimant was at the outer fringe of thatspectrumandhisdisabilityaffectedhisabilitytopursuehischosencareermuch less than itaffectedhisactivitiesoutside work. Because of that, there was no rationalbasis for determining how the reduction factor should be adjusted. If the Ogden Tables A and B were applied without anyadjustment,theresultwouldbeahopelesslyunrealisticaward of about £200,000. The claimantwaspursuing hischosen career as a lorry driver with virtually no hindrance from his disability and the judge had commented that he was likely to be sought after by employers. In his case,determining an appropriate adjustment to the reduction factor was a matter of broad judgement which was no more scientificthanthebroadbrushjudgementwhichthecourtmade when carrying out a Smith v Manchester assessment. The instant case was a classic example of a case where a conventional Smith v Manchester award was appropriate. An appropriate award for future loss of earnings would be two years’ earnings, which amounted to £45,000 whenrounded up slightly.

‘The instant case was a classic example of a case where a conventional Smith v Manchester award was appropriate’CommentAt the heart of this judgment is the Court of Appeal drawing a distinction between an award for loss of future earnings and compensation for loss of earning capacity. This case fell into the second category and that made a Smith award appropriate. The appeal court also commented that such an award would normally lie between the equivalent of six months’ earnings and two years’ earnings. Here the award was at the upper level.

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Civil procedure/expert evidenceThe commercial case of Gilruth v Harding [Lawtel 23/07/2015]showshowimportantitistoconsiderwhethera party may wish to challenge the views of a single joint expert. In such situations careful thought must be given to whether permission should be sought to instruct an expert unilaterally.

InJune2006,thepartieshadmadeafour-yearagreementthat the claimant/respondent would train the defendant/appellant’s horse and ride him in three-day eventing competitions. It was envisaged that the horse would thereby increaseinvaluefromthe£30,000itwasworthatthetimeof theagreement. If thedefendantengagedanother rider,thedefendantwouldpaytheclaimant25%of thehorse’sincrease in value. The claimant had considerable success with the horse in competition. However, in September2009,thedefendantinformedherthatshewouldnolongerbepermittedtoridethehorse,ashebelievedtherewasabetterprospectof it reachingtheGBOlympicsquadwithanother,higherprofilememberoftheGBteam.

The horsewas taken from the claimant inOctober 2009.Sheissuedproceedingsseekingtoenforceherentitlementto25%oftheenhancementinitsvalue.Asinglejointexpert,whowasatraderineventinghorses,wasinstructedtoreporton the horse’s value in September 2009. The defendantrequestedthather initialreportbedisregarded,ashehadsubmitted further questions for her and a veterinary report whichreferredtoabackdefectinthehorsewhichhadcometo light in March 2011.

The expert’s evidence was that it was a pre-requisite of a sale that a horse would undergo a full veterinary examination including extensive x-rays, but that it was not commonpractice tox-rayahorse’sback.Sheconsidered that thehorse’svalueinSeptember2009was£200,000,butwouldhavebeen£150,000 if thebackdefecthadcometo light.At trial, thedefendantsought topersuade the judge that,asaresultofthehorse’sbackdefect,ithadnoenhancedvalue. The judge rejected that argument, and considered

whether the back defect would have been likely to havebeendiscoveredinSeptember2009ifthehorsehadbeensold at that stage. The evidence of a chartered equine physiotherapist,whohadassessedand treated thehorsebetween 2006 and 2009, was that the horse had alwaysexhibited full movement and there were no performance issues indicative of back pain. The defendant sought torely on the vet’s report, but the judge found that it wasinadmissiblesincethedefendantlackedpermissiontorelyon it as expert opinion evidence and had not indicated that he intended to rely on it at trial. The judge accepted the physiotherapist’s evidence that the horse had not exhibited abackdefect inSeptember2009asevidenceof fact.Hefound that a putative purchaser would not have takenthe uncommon step of requiring back x-rays so that, inaccordancewiththeexpert’svaluation,thehorsewasworth£200,000inSeptember2009,meaningthattherespondentwasentitledtodamagesof£42,500, representing25%ofthe horse’s increase in value.

The defendant appealed and contended that the judge shouldhavetakenaccountofthevet’sreportonthehorse’sbackdefect.

‘(The defendant’s) remedy would have been to apply to the court for permission to instruct another expert and adduce that evidence’Dismissing the appeal, theCourt of Appeal held that theexpert had had sight of the vet’s report, but that did notverify the truth of its contents; the report was simply part of thebodyofmaterialonwhichtheexperthadbeenaskedto

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reachanopinion. Inanyevent, thereporthadnotoffereda view of the critical question as to whether a putative purchaser of the horse in September 2009 would haverequired x-rays to extend to its back, and that could notbefairlyorsafelyinferredfromthereporteither.Moreover,the vet was not competent to express such a view: he was nota trader inhorses,as theexpertwas; itwasshewhohad the relevant expertise on the procedures and conditions leading to a successful transaction. Whatever the horse’s subsequent history, the sole question for the judge waswhether the back defect would have been discovered inSeptember 2009. The judge had found that it would not,and awarded damages accordingly; that conclusion was whollyjustifiedandunexceptional.Therealitywasthatthedefendant had simply not accepted the expert’s opinion that,hadthebackdefectbeenrevealedinSeptember2009,itwouldhaveresulted inonlya25%reduction inpriceto£150,000.Hisremedywouldhavebeentoapplytothecourtfor permission to instruct another expert and adduce that evidence.Thathadnotbeendone,andthedefendantcouldnot challenge the expert’s evidence now.

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CostsThe fast-tracked appeal in Coventry v Lawrence (2015) UKSC 50 has now been heard but the fact that the decision isbasedona5-2majoritywillleavesomedissatisfied.

The appellant residents lived near a motorsports stadium run by the stadium operators. They claimed that the noise emanating from the track constituted a nuisance andobtained an injunction and damages. The judge ordered thestadiumoperatorstopay60%oftheresidents’costs.Because the residents’ lawyers were acting under aconditional feeagreement (CFA), therewasasuccess feeand an after the event (ATE) insurance premium in addition to the base costs. Pursuant to the costs regime introduced by the Access to Justice Act 1999, thestadiumoperatorswereliablefor60%ofnotonlythebasecostsbutalsothesuccess fee and the ATE premium.

The stadium operators submitted that requiring them to contribute to the success fee and ATE premium infringed their rights under Article 6 and Protocol 1 Article 1 European Convention on Human Rights 1950. They submitted that the decision in MGN Ltd v United Kingdom (2011) that the 1999 Act costs regime was incompatible with Article 10 of the Convention compelled the conclusion that it was also incompatible with Article 6 and Protocol 1 Article1.

ThemajorityoftheSupremeCourtheldthatthe1999 Act regime sought to improve access to the courts for those withmeritoriousclaimsandto imposethecostofallCFAlitigation on unsuccessful respondents as a class. Pursuant to CPR 44.4(2) (a), costs had to be proportionate to thematters in issue. The two-stage approach to the assessment of costs prescribed in Lownds (2002)appliedtobasecosts,success feesandATEpremiums.Thus,success feesandATE premiums would be recoverable as proportionate expenses if they had been necessarily incurred, even ifthe amount was large in comparison with the amount of damages reasonably claimed.

The decision in MGN did not compel the conclusion that the 1999 Act regime was incompatible with Article 6 or Protocol 1 Article1. The central issue in that case was whether the regime struck a fair balance between theArticle 10 right to freedom of expression and the Article 6 right of access to court. The balancing of the Article 6 rights of appellants againstthoseofrespondentswasawhollydifferentexercise.

‘The courts had to give considerable weight to informed legislative choices...’The issue was whether the 1999 Act regime was disproportionate. The courts had to give considerable weight to informed legislative choices, at leastwhere thelegislaturewasseekingtoreconcilethecompetinginterestsof different groups. Parliament had consulted widelybefore implementing the Act,and thedraftersof theCPR and the Practice Direction were best placed to determine how to strike the appropriate balance. Costs awarded tosuccessful appellantswhohad thebenefitofCFAscouldbe very high, and the1999 Act regime had the potential to place respondents under considerable pressure to settle. Inanumberofindividualcases,theschememightbesaidto have interfered with a respondent’s right of access to justice.However, a legislativeor regulatoryschemecouldbe compatible with the Convention even if it operated harshly in individual cases.

There was a powerful argument that the 1999 Act regime was compatible with the Convention because it was a generalmeasure that was justified by the need to widenaccess to justice to litigants following the withdrawal of legal aid; had been implemented following wide consultation; and fell within the area of discretionary judgement of the

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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legislature and rule-makers. It was no answer to say thatothermeasurescouldhavebeen takenwhichwouldhaveoperated less harshly on non-rich respondents. The potential unfairness of the regime on unsuccessful litigants was mitigated by the fact that district judges and costs judges wereastutetocheckanypracticeswhichmightunderminethe fairness of the regime. Moreover, respondents couldalso enter into CFAs and take out ATE insurance. In theabsence of a widely accessible civil legal aid system it was impossible to devise a fair scheme which promoted access tojusticeforalllitigants.Indeed,theschemeintroducedbythe Legal Aid, Sentencing and Punishment of Offenders Act 2012 to replace the 1999 Act regime itself curtailed access to the courts in some respects. Nor was the 1999 Act regime incompatible on the ground that the assessment of the successfulparty’scostsdidnottakeaccountofthepayingparty’s financial circumstances. The financial position ofthepayingpartyhadneverbeenarelevantfactor.Overall,the 1999 Act regime was a rational and coherent scheme for providing access to justice to those to whom it would probablyotherwisehavebeendenied,anditwassubjecttosafeguards.

It is interesting to read the views of one of the two dissenting judges,LordClarke:

‘I accept that the question is not whether the system was unfair or had flaws. It is whether it was a disproportionate way of achieving the legitimate aim. In my opinion, it plainly was because it did not treat all respondents in the same way but chose a particular class of respondents on whom to impose liabilities far beyond the bounds of what was reasonable or proportionate’.