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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 >> Willemse v Hesp  EWCA Civ 994 (11 July 2003)
Cite as:  EWCA Civ 994
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE KEENE
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Mr Robert Glancy QC and Mr John Tonna (instructed by Lorenzo Zurbrugg) for the respondent
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Potter:
The judge's findings
"although the brain injury might be modest, causing subtle differences affecting concentration, memory and ability to work at the highest levels, the psychological condition is such as very much more dramatically to affect the quality of life than the organic damage might suggest."
He went on to say that he believed the interference would be "above the level indicated for minor brain damage" albeit that the claimant's ability to work would not be so badly affected as in the case of Botana v De La Cruz cited in Kemp & Kemp at C2-051, a case of irreversible brain damage impairing the plaintiff's cognitive ability and memory and limiting her ability to work in the future to stress-free part-time work.
"72. Mr John Herd, who was prepared to finish the vessel charging £10 an hour, which he told me was less than the going rate, provides some window upon how I should value it. Assuming that £10 was the prevailing rate at the time the work was done, 8,000 hours represents £80,000 over 4 years, and that figure must be discounted for the other labour involved, including some £3,000 which Mr John Herd told me he was owed based upon records which he has kept, and other labouring work. It should also be discounted because 8,000 represents the very maximum period of time likely to have been taken.
73. Miss Perry submits that this approach to assessment of loss is speculative and that I should proceed on the premise that Mr Hesp has simply not satisfied the burden of proof that he has lost money which he would, but for the accident, otherwise have earned. I have had real concern assessing the force of this submission. After all I do not know precisely how much work the Claimant has put into the vessel and neither do I know that had he not been working on the vessel he would otherwise have been in remunerative employment. It is abundantly clear that he has adopted a lifestyle which involves working when he has to, but not working at other times. On the other hand, he has created what I have seen is a magnificent craft and it cannot be gainsaid that it must have taken him as the predominant craftsman very substantial time and deprived him of the opportunity, which I am prepared to accept he would have taken at least to a large extent, of undertaking other work. In the light of all the evidence, I accept that the claimant worked on his boat in lieu of undertaking remunerative employment, that he would have completed it and then, having sailed it, either sold it (to realise capital, if only to build another boat) or retained it as a valuable asset. On any showing, he would have used his skill and ability, at least some of the time, either to earn money, or again to build an asset which could be converted into money at some stage in the future. To refuse to recognise these facts would be demonstrably unfair to the Claimant and would be grossly to undercompensate him.
74. Mr Hesp's average receipts in earnings in the years ending 31 October 1992, 1993 and 1994 are about £2,250. Trying to do the best I can, by reflecting the work done on the boat, I will increase the sum to £17,500 equivalent earnings i.e. reflecting just over 1500 hours per annum on the boat. That does not mean it is appropriate to assume that from the date of the accident to date the Claimant would have earned £17,500 each year. I do not believe he would have. Having completed the vessel, it is inconceivable that he would not have taken a substantial period of time to sail it, even assuming he sold it thereafter. On the other hand, it is quite clear that he has been able to earn a far higher rate of remuneration even in his present condition. In particular, I point to the rate of £25 an hour to Mr Horrobin on the project to which I have referred. It is not unrealistic to suppose that he would have adopted the practice as hitherto, working when he needed to and not when he did not, and I am prepared to balance these two features i.e. time off when not working against greater earning potential when working. Whatever might be the position as to the boat however, earnings subsequently, whether in building another boat at about the same sort of rate or working as an ornamental blacksmith, would have attracted tax, so even if I were to allow £17,500 gross, the net loss would be rather less. Without real help, I have to make an assessment, and I put that annual loss at £14,500. Given the assumption that I have made, it would be spurious to calculate this precisely to the week. I allow £14,500 per annum over the period since the accident which in the round I assess in the sum of £80,000 …"
"75. I repeat Mr Horrobin's evidence, that when engaging the Claimant in connection with his recent work, he needed loyalty and commitment above and over everything else and, furthermore, "that is what I got". He went on "He has lost his inspiration, but he remains a skilled blacksmith capable of working on important work, albeit under supervision" Robert Herd spoke of the Claimant bringing in £12,000 worth of work which was "a reasonable reflection of what he was capable of", albeit that the large job has gone on ice. I accept, as Mr James has told me, that at the moment he has lost the enormous versatility that he previously had, but Brian Hobbs also confirmed that he was "Still capable of working. He was just slower and lost concentration". The fact is that he was able to settle down to Mr Horrobin's work in the early part of this year, notwithstanding the forthcoming litigation …"
"76. I am afraid I have not found the reports of the employment specialists of value, because the loss is not, as I have found, an ability to work, but rather potentially to go to levels at or above that which he previously attained. It is not without interest that, in awarding £53,000 for past loss I am compensating the claimant at a level just below £10,000 a year. That sum, which of course covers the years immediately following the accident when little work was done and more recent times, would be too much to reflect the difference between what the claimant was capable of achieving and that which he can now achieve, because if he wished to work in this way I believe he would be capable of remunerative employment, albeit periodic in nature, broadly at the annual rate at which he is now being paid.
77. Doing the best I can, bearing in mind my view that the claimant has indeed suffered a real loss at the higher level of what he would otherwise have been capable of doing (which reflects the neurological evidence), I assess a fair reflection of the loss at £7,500 per annum. On the basis that he will undergo psychotherapy, and notwithstanding his higher recent earnings, it could take a period to maximise his motivation and improvement to his psychological state. I will allow £10,000 for two years. I then award £7,500 for a balance of 12 years on a slightly reduced multiplier, which would have been 15.53, to reflect in small measure the greater uncertainty that the claimant's lifestyle would in any event have meant as he got older that he did less rather than more, if only so that he could pursue his other activities. This discount is not large, because I have not proceeded on the necessary premise that he would have been working all the time or seeking to maximise his earnings in employment in any event. Thus, future loss amounts to £10,000 for two years and £7,500 for 12 years, i.e. £110,000."
The appellant's contentions
"Mr Horrobin said that he would have let him run a complex job prior to the accident, but that now his most common fault was that he forgot something told him 5 minutes previously. Robert Herd said that the Claimant had shown no interest in work which he was to undertake with him, and that he was struggling. Brian Hobbs said that he was still capable of working, but that he was slower and lost concentration. In his statement his brother put the matter this way:
"Prior to his head injury Dominic's fluency in the skills [of mentally visual three-dimensional structures] was demonstrated by the first class work he produced. Projects carried out after Dominic's car crash made it clear that he had an almost complete lack of these skills … Dominic's inability to visualise only became apparent to me in design and planning sessions at work. More apparent, both in the working environment and in private, is Dominic's poor short-term memory. At work this at best slows him/us down, at worst wastes a great deal of time, materials and other resources."
"On occasions, albeit by no means at all times, he appeared relaxed in some of his answers and did not suffer from an inability to concentrate or pay attention to detail. That is not to say that he is now recovered. I accept that he does not perform as well as he did before the accident and I equally accept, as I have said, that he does on occasions experience each of the symptoms about which he complains, albeit that these are not as gross, as intrusive, or as debilitating as described by Miss Levett. It may be right that Ms Francis is correct to describe him now as a 'standard Mr Average', although that should not be taken as implying that occasionally his reactions and his behaviour were less than might be expected of an average person, and certainly not what would have been expected having regard to his pre-accident personality."
"On the basis of the neurologists' views, some loss of artistic ability may remain, but I do believe that the claimant will be measurably better and that his earning capacity although affected, will not be affected by anything like the extent claimed."
Calculation of Past Loss
Future earnings loss
Lady Justice Arden:
Lord Justice Keene: