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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 >> Heil v Rankin  EWCA Civ 187 (13 June 2000)
Cite as:  EWCA Civ 187
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JOHN SIDNEY HEIL
- and -
(1) GRAHAM V RANKIN
(2) MOTOR INSURERS BUREAU
Ground one - The Issue of Principle
The judge assessed the plaintiff's loss in respect of his earnings in the police force after the Taunton incident on the basis of the loss of a chance. That chance was expressed in percentage terms, by assessing the likelihood of an incident occurring, such as did occur at Taunton, that would trigger or make florid the underlying PTSD from which the plaintiff already suffered because of the Chard incident. The Judge found that the chance of such an incident occurring was such that there had been only a 25 per cent chance of the plaintiff remaining in police service as a dog handler up to his normal retiring date at age 50. Mr Christopher Purchas QC argued that, in the light of the Judge's primary findings of fact, the 25 per cent figure was wrong in any event. However, he advanced a more general and theoretical criticism of the Judge's approach. That was that as a matter of law any hypothetical future event that would foreshorten the plaintiff's career in the police force should be disregarded if that event would have involved the commission of a tort by a person other than the plaintiff. And since on the Judge's findings by far the most likely triggering events would be serious incidents of the same type as the Taunton incident, and such incidents would by definition involve the commission of a tort, it followed that at most only a token reduction should be made from the plaintiff's prospects of remaining in the police force. This argument was put to the Judge, and rejected by him in short order. It was repeated before us by Mr Purchas, who said that it was the principal issue in the appeal.
In discounting the sum that would otherwise represent the plaintiff's loss of earnings to retirement by a percentage to reflect the risk that he would not in any event serve until retirement age, the Judge did no more than apply what has become known as the "vicissitudes" principle, as expressed as long ago as 1879 by Brett LJ in Phillips v LSWR 5 CPD 280 at p291. As Lord Bridge said in Jobling v Associated Dairies  AC 794 at p820C, that principle
stems from the fundamental proposition of law that the object of every award of damages for monetary loss is to put the party wronged so far as possible in the same position, no better and no worse, as he would be in if he had not suffered the wrong in respect of which he claims. To assume that an injured plaintiff, if not injured, would have continued to earn his full wages for a full working life is very probably to over-compensate him.
As Lord Bridge acknowledged, that principle introduces an element of uncertainty and assessment. But where in the case of a particular plaintiff there is evidence, particular to him, that his working life will or may be foreshortened, then it would breach the principle not to take that evidence into account in his case. We did not understand Mr Purchas to dissent from that proposition, nor to dissent from the proposition that the factors identified by the Judge that placed the plaintiff in hazard of not being able to serve to retirement could in principle be applied by the Judge in determining the percentage discount. Mr Purchas' case was rather that as a matter of law such factors must be ignored if they involve tortious acts by a third party.
This principle was said to follow as a matter of necessary logic from two decisions of the House of Lords, Baker v Willoughby  AC 467, and Jobling. In Baker v Willoughby, as explained in Jobling, particularly by Lord Keith at  AC p.815G, where there had been two successive tortious assaults on the plaintiff before the trial,
in proceedings against the first tortfeasor alone the occurrence of the second tort cannot be successfully relied on by the defendant as reducing the damages which he must pay. That, in substance, was the result of the decision in Baker v Willoughby, where the supervening act was a tortious act.
Mr Purchas said that if an actual second tortious act could not be relied on to reduce damages in respect of the first tortious act, then a fortiori a hypothetical second tortious act, that had not yet occurred, could not be relied in reduction of damages: which was the effect of the approach adopted by the Judge. As Mr Purchas put it, a tortious supervening event should not be taken into account whether it occurs before or after the trial. If one does not discount for reality, why discount for chance?
This argument, rightly described by the Judge as novel, is fallacious because it ascribes the same legal status and nature to two different legal functions. The reason for the approach adopted in Baker v Willoughby and Jobling is to avoid the operation of two legal rules that, if both fully applied together, might in a case of sequential torts deprive the plaintiff of full compensation. Those two rules are, first, the rule, in issue in the present case, that deductions should be made from claims for prospective loss of income to allow for contingencies. In a case such as Baker v Willoughhy, if that rule were to be applied with its full rigour the first tortfeasor could rely upon the principle that the court will not speculate where it knows to claim that his responsibility had been terminated or curtailed by the actual occurrence of the second tort. But the second torfeasor in turn could rely on the further rule that he is entitled to take the plaintiff as he finds him, and that his liability should accordingly be reduced because of the already injured state of the plaintiff at the time of the second tort.
The combination of these arguments by the two tortfeasors might well result in the plaintiff not receiving from either of them, or from both of them together, full compensation for his injuries. Lord Keith in his exposition in Jopling,  AC at p815D-G, was clear that the rule that he formulated, of ignoring the occurrence of a second tort when awarding damages against a first tortfeasor, could not be justified on any identifiable juristic basis, but rather was a just and practical solution to avoid the barrier to full compensation that would arise if the normal rules were applied to their full extent. It was that consideration that must have been in the mind of Lord Wilberforce in Jobling when he said,  AC at p 804B, in a passage cited by the Judge, that the effect of supervening events upon compensation had to be approached in general terms to provide just and sufficient but not excessive compensation, rather than on the basis of general, logical or universally fair rules. This pragmatic rationale of the rule in the case of successive tortfeasors is also, if we may venture to say so, very clearly set out in a Canadian case shown to us by Mr Purchas, Penner v Mitchell  5 WWR 328 at pp 335-336, in the judgment of Prowse JA.
Two things follow. First, there is no justification in the authorities relied on by Mr Purchas for any general rule that supervening torts must be ignored in all circumstances and for all purposes, just because they are torts. Rather, the whole emphasis is that in the particular case of claims in respect of two torts successively contributing to the plaintiff's injury, justice in the shape of full compensation can only be secured if, in proceedings against the first tortfeasor, the fact of the second tort is, on pragmatic grounds, ignored. It is for that reason, and that reason only, that the nature of the second attack as a tort is emphasised.
Second, there is not only no general rule that second or subsequent torts must be ignored because they are or will be torts, but also no relevant analogy between the particular case addressed in Jobling and the case before us. Here the danger is not undercompensation of the plaintiff but over-compensation of him, if future vicissitudes are not taken into account under the normal principle. If future tortious acts had to be ignored, even though they were, as they were found to be in this case, a foreseeable, indeed likely, source of early termination of the plaintiff's employment, but the plaintiff nonetheless had to be compensated on the basis of full employment to retiring age, then it seems self-evident that he would be compensated for sums that the tort had not caused him to lose. A very clear general and overriding rule would need to be demonstrated in order to justify that unjust result. The authorities do not come near to establishing such a rule.
We should add that we were shown an obiter passage in the judgment of the High Court of Australia in Wynn v NSW Insurance Corporation (1995) 184 CLR 485 at pp498-499, where the Court said
It is not permissible in assessing the chance that an earlier injury may have resulted in impaired earning capacity to have regard to the possibility of further tortious injury. That possibility must be disregarded because, in the event of further injury, damages would be assessed, as in this case, by allowing for any pre-condition resulting in or having the possibility of resulting in impaired earning capacity. Only by disregarding the possibility of further tortious injury does the law ensure full compensation.
The Court cited Lord Keith in Jobling in support of that view. It is not clear, from the report of the argument in Wynn's case, whether the Court was in fact addressed on that issue. Nor was it considering the factual situation in our case, where the hypothetical second tort is of the same nature as, and has the same devastating effect, as the tort in suit: indeed, it was part of Mr Purchas' argument that the possible second tort must be ignored because, the Taunton incident having occurred, and the plaintiff having left the police force, the second tort could not thereafter occur. We therefore do not think that this dictum directly touches the case before us. If, however, the High Court was intending to lay down a general rule, on the basis of Jobling, that a tortious act can never be taken into account when discounting for future vicissitudes, then we have to say, for the reasons set out earlier in this judgment, that we cannot agree.
Ground 2 - General Damages
It is submitted that the assessment of general damages at £6,000 was too low regardless of the reasons in support of ground 1. The Learned Judge assessed the general damages arising from the second incident as follows :
"As have I said, it caused a moderate condition of Post Traumatic Stress Disorder ; secondly, it caused depression ; and, thirdly, exacerbated the previous injury, that did not itself cause long term disability. I do not find that the 1993 incident caused a specific loss of congenial employment or loss of earning capacity because I regard it as a trigger event, and my analysis of the loss of prospects for the future bespeaks the potential for such trigger event or events having occurred anyway. I, therefore, assess general damages following the 1993 incident and referable thereto at £6,000."
Mr Purchas contended that the judge's award ought to be increased and that an appropriate figure would be £25,000. On the totality of the medical evidence the plaintiff's condition can be properly regarded as falling at the top end of the "moderately severe" classification to be found in JSB Guidelines For General Damages, 4th ed.
In fact, the third edition was current at the time of the trial which suggests a bracket for this classification of £11,000 to £21,500. Mr Purchas submits that the condition should properly be regarded as at the top end of the moderately severe category as the prognosis is for some recovery with professional help but the effects are still likely to cause severe significant disability for the foreseeable future. It is further submitted, generally, that all existing guidelines for psychiatric injury are too low.
On behalf of the defendant it is submitted that the judge was correct to find that the PTSD was in the "moderate" JSB band, for which the guideline figures are £3,500 to £9,500 at the current guideline levels.
The question whether the disorder fell within the moderately severe or moderate category was a question of fact for the judge. In our view he was entitled to come to that conclusion on the evidence before him. The defendant did not cause Mr Heil to suffer from PTSD, because he already had that condition. He had a good work record between 1987 and 1993. The judge was not impressed with the simmering explanation advanced by Dr Bird on behalf of the defendants. The Taunton incident caused a temporary exacerbation of a pre-existing condition. The major features of PTSD (which attract damages for pain, suffering and loss of amenity) had already been inflicted on Mr Heil by the Chard incident. He suffered flashbacks of the shooting incident, intense distress with matters associated with the town of Chard, personality change, mood swings, gambling, alcohol abuse, loss of interest in his family, suicidal thoughts and sleeping difficulties. These factors had to be weighed against the ability to perform his duties satisfactorily. Any long term disability was attributable to the 1987 incident and not to the 1993 occurrence.
Accordingly we see no reason to disturb the judge's assessment.
It is submitted that the Learned Judge erred in assessing the plaintiff's damages for loss of earnings by reference to a chance, applicable to the whole period between 1994 and 2003, when he would remain in police service. The Learned Judge misunderstood the effect of calculating the damages in accordance with his assessment of 25%.
The judge identified the issue as follows :
"But for the 1993 incident, but bearing in mind the 1987 incident, would the plaintiff have gone on to retirement at age 50 or 52, that is retirement from the police? Put more broadly, what is the causative effect of the 1987 and 1993 incidents on the plaintiff's long term prospects in employment?"
and later :
"The issue, therefore, falls to be determined practically and pragmatically by deciding what were the chances of the plaintiff surviving in employment to an age of 50 or 52, having regard to medical picture that I have just outlined."
He then set out the answer to that question by taking into account the following matters :
"Firstly, and, in my view, very importantly, he had a good work record between 1987 and 1993. During that time, there were significant serious and dangerous incidents in his working life that had not been trigger events. He was surviving.
Secondly, one has to take into account the nature of trigger events. Fortunately, common sense coincides with medicine on this front. According to the medical experts, if a subsequent stressor event to the 1987 incident was similar to it (life-threatening or provoking a reliving of that incident) then that subsequent event would probably act as a trigger event. But, on the other hand, less dramatic events, a place or a sense of smell, etc., would only possibly act as trigger events.
That really reflects common sense, but it means that in his future working life after 1987, but for the 1993 incident, the plaintiff would have been continually exposed to the most uncommon risk of such a really serious trigger event and yet the common risk of the other much less serious events possibly acting as a trigger.
Thirdly, I take into account the continuing family stresses to which he, his wife and children were subject because of his condition. They were not improving and there is no evidence that they would have done.
Fourthly, one must take into account the fact that as a dog handler (which he intended to remain) he would have been in what is agreed to be the front line of Police activity in dangerous situations.
Fifthly, I take into account to a very limited extent the "simmering" scenario postulated by Dr Bird. I take it into account because I am going to equate it with trigger events. But I do not take it fully into account, or substantially into account, because, in my judgment, Dr Bird was not fully aware of the excellence of the Plaintiff's record between 1987 and 1993, confessing in evidence (probably because they had never been sent to him) that he had not read the police assessment reports.
Dr O'Connell was are if it and had used it significantly in his analysis, whereby he emphasised the need for serious trigger events as being far more likely to be causative in this case than any "simmering" scenario."
Leading counsel submits that the judge rightly found that a subsequent stressful event similar to the 1987 incident was the most likely trigger event. He took into account that Mr Heil would have been in the front line of police activity in dangerous situations. While less dramatic events could possibly be a trigger, the judge was nevertheless correct taking into account his good work record between 1987 and 1993. Although he had suffered minor injuries and had been involved in dangerous incidents, they had not acted as a trigger. Thus it is submitted on a proper analysis of the matters identified and having regard to the medical evidence the logical and correct conclusion should have been that the plaintiff would probably have remained in police service, and that the chance of his leaving the police service by 2003 by reason of a trigger event was no more than 25%. In other words, leading counsel contends that the judge's assessment should have been 75% in the plaintiff's favour and not 75% against.
Mr Dermot O'Brien, QC on behalf of the defendants contends that the plaintiff's work record prior to 1993 was good but this only assists in supporting the proposition that a more serious event would be required to trigger florid PTSD if the plaintiff's condition had been static and improving prior to the Taunton incident. Both psychiatrists agreed that the plaintiff was "in denial" so far as work was concerned which might break down at any time. Accordingly the assessment of a 25% chance can be justified.
We have come to the conclusion that the judge discounted the plaintiff's chance of working to retirement too heavily. There is a patent inconsistency between the judge's findings on the factors he took into account, the medical evidence and the working pattern both pre and post the Taunton incident. The judge's conclusion on this aspect is less than satisfactory :
"Approaching the calculation of financial loss on the basis which I suggested is the pragmatic and just solution, i.e. past and future loss of earnings, less past and future earning capacity, produces a figure which, in a pragmatic way, can represent his future prospects. I am going to apply to that figure a prospect of succeeding to the age of 50 as being one of 25%. The factor will then be applied to the numerical calculation which I have outlined.
In other words, I find the loss of prospects of continuing in the police force was moderate and not substantial because of the factors I have outlined during my summary of the evidence and in my analysis of the five points I have considered in relation to the future after the 1987, had the 1993 incident had not occurred."
We consider that this reasoning and conclusion is insupportable. On the other hand we are not persuaded that his prospects should be re-assessed at 75%. There is no evidential basis to support the plaintiff's contention that his chance of working to retirement should be increased by a factor of three. We do not consider it appropriate to remit the case to the trial judge for clarification. The plaintiff did make out a case that he had suffered a diminished earning capacity as a result of the Taunton incident. Subsequently events proved this to be so. We have decided that the assessment of 25% is so low as to amount to an injustice and we substitute an assessment of 50%. This, in round terms, increases the figure for loss of earnings before trial from £11,167.19 to £22,334.38 (subject to verification by counsel).
Ground 4 - The Multiplier
It is said that the Learned Judge erred in selecting a multiplier of four for future loss of earnings. He had already expressly taken into account all factors in discounting the amount of the plaintiff's past and future loss by 75%. The only further factor to be taken into account in the multiplier was accelerated payment. The appropriate multiplier for this purpose was not less than five.
In considering this matter we bear in mind that no multiplier was defined in the judgment itself. The judge was asked to deal with it after he had given judgment, he said :
"Future loss, in my judgment, this is assuming that he would have worked to 50, six years from now is dealt with by a multiplier of 4."
In fact there were five years and seven months from the date of trial to the date when the plaintiff would in any event have retired. The appropriate discount applying the current tables would produce 5.14. We are left with the further impression that the Learned Judge discounted down to 4 by taking into account his earlier assessment of 25% . If he did this was an error of principle as it would amount to double discounting. If he did not, then the figure 4 cannot be supported by the tables. We consider it appropriate to substitute a multiplier of 5. Thus applying this figure to the 50% discount which uplifts the award under this head from £9,899.77 to £24,485 in round figures, subject to counsel's computation.
Ground 5 - Future earning capacity
It is said that the Learned Judge erred in failing to make any award for loss of earning capacity after retirement from the police force. The plaintiff's future earning capacity, impaired by his medical condition, was estimated by the judge at £13,500 gross (£9,303 net). However the judge did not make findings as to his earning capacity after retirement if he had not been affected by florid PTSD and depression. It had been his intention to qualify as a teacher. He would have started at more than £14,000 per annum with annual increments and the prospect of 15 years service. An appropriate multiplier allowing for mortality would be about 10 with a further discount for accelerated benefit.
Mr Purchas recognised the difficulties in establishing this part of the case on the evidence used before the judge. In the alternative he submitted that this was an appropriate case for a convential Smith v. Manchester City Corporation award in the region of £10,000.
We were unable to accede to either of these submissions. The claim was not pleaded. The claim for lost earnings as a teacher was entirely speculative. The difference between the starting salary of a teacher and the actual earning capacity as assessed by the judge was insignificant. The claim ignores the effects of the 1987 incident and the probability that at some time something would have happened to trigger the PTSD. It would be unrealistic to assume the trigger event would never have occurred, thereby allowing him to work as a teacher from 50 to 65. In our view, the plaintiff simply did not prove that his earning capacity would be affected by the temporary exacerbation brought about by the 1993 incident. Nor do we consider that it would be appropriate to throw in a Smith & Manchester type award on the evidence.
Ground 6 - interest
Mr Purchas contended that the judge dealt compendiously with financial loss on a "loss of a chance" basis, without distinguishing between past and future loss. In reality the whole of the loss was past loss and special damage, and in the special circumstances of the case interest should be at the full special account rate on the whole award.
We reject this argument. We can see no basis for assessing interest other than on well established principles.
To the extent indicated, the appeal is allowed.