The appellant HGV driver appealed against an award of damages made following a personal injury claim brought against his former employers.
The claim arose out of an accident at work. The appellant had been driving a tipper lorry when the hydraulic ramp collapsed. The resulting impact forced him upwards at speed and his head collided with the roof of his cab causing serious vertical compression injuries to his neck. The recorder awarded the following damages: pain, suffering and loss of amenity: £19,100; past loss of earnings: £54,300; past care (agreed): £1,817.10; prescriptions (agreed): £25; travel (agreed): £50. The recorder made no award for any future losses. After deduction of an interim payment and compensation recovery unit benefits she gave judgment in the sum of £72,417.14.
The appellant submitted that
(1) the award of damages for pain, suffering and loss of amenity was far too low;
(2) there was no award for past or future loss of services when both were recoverable;
(3) the award for past loss of earnings was too low;
(4) there was no award for future loss of earnings when they were recoverable;
(5) there was no award for the cost of future therapy when that too was recoverable.
HELD: (1) Pain, suffering and loss of amenity : The recorder concluded that the injuries came within Chapter 7 of the Judicial College Guidelines, section A, Neck Injuries, category (b) Moderate, sub paragraph (i) which was the highest section of the category. The range of damages within that bracket was £18,350 to £28,300. The lower category, (ii), included “injuries which had accelerated a pre-existing condition … usually by five years or more.” Category (i) made no reference to acceleration of symptoms. The focus was on injuries sustained by a previously uninjured person. In placing the appellant’s case in b (i) the recorder took account of the serious nature of the injuries but was bound to place it at the lower end of the bracket given pre-existing degenerative changes in his neck (see paras 21-23 of judgment).
(2) Loss of services : Neither a claim for past loss of services or future loss of services was made when the proceedings began. The appellant later said that he was unable to do as much as he used to and estimated that the award should be between £600 and £700 per year. The recorder did not accept that figure. Even where the sum sought was modest and the claim conventional, the burden of proof remained on the claimant. It was not discharged in the instant case (paras 34-35).
(3) Past loss of earnings : The recorder had initially assessed past loss of earnings at £56,300 to which she added £2,000 which she thought was payable. However she had misunderstood the respondent’s submissions about compensation awarded by the employment tribunal for loss of earnings and when that was explained to her again she deducted the £2,000. She made a mistake and corrected it. The recorder found that the appellant had done nothing to mitigate his loss. That was a finding she was entitled to make in light of the agreed medical evidence. It meant that the appellant was not entitled to recover in damages sums which he would have earned had he mitigated his loss. It was reasonable to allow a period of eight months for the appellant to have found work. Therefore, he was entitled to recover damages of £11,700 for his loss of earnings for the period from March 2013 to November 2013 at the rate of £15,600 per annum. Thereafter he could have secured employment at the minimum wage, £12,000 per annum and so his recoverable loss from December 2013 to trial was six months’ earnings at the annual rate of £3,600 to trial, namely £1,800 (paras 26-30).
(4) Future loss of earnings : The recorder had concluded that the claim for loss of earnings from trial to March 2017 was extinguished because of the appellant’s failure to mitigate. She was wrong to do so and it had not been open to her to conclude that the appellant would have earned more in sedentary work than as an HGV driver. That he would have started at the minimum wage was agreed. In those circumstances, the loss was the difference between his pre-accident earnings and the minimum wage, namely £3,600 per annum. Adopting a multiplier of three, the correct award for loss of earnings to March 2017 was £10,800. The position beyond March 2017 was much more uncertain. The experts agreed that from that date the appellant would not have been able to work as a HGV driver in any event. They also said that his continuing symptoms were more severe than they would have been had the accident not occurred. There was no evidence of, or thought given to, whether and to what extent that meant that there was a residual and enduring loss of earning capacity attributable to the accident over and above the loss attributable to his pre-existing condition. In those circumstances it would not be right for the court to try and assess it. In the absence of any evidence, assessment would be entirely speculative. The recorder was right to make no award for that period (paras 31-33).
(5) Therapy : There was no evidence that private physiotherapy had been obtained in the past or that it would be of any use in future. None had been prescribed. It was a hopeless claim (para.36).