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Cite as: [2001] EWCA Civ 1283

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Neutral Citation Number: [2001] EWCA Civ 1283
B3/2000/0628

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR LEIGHTON-WILLIAMS QC

Royal Courts of Justice
Strand
London WC2
Tuesday, 3rd July 2001

B e f o r e :

LORD JUSTICE MUMMERY
LORD JUSTICE LAWS
and
SIR ANTHONY EVANS

____________________

SURINDER PAL KAUR KENTH
-v-
HEIMDALE HOTEL INVESTMENTS LIMITED

____________________

(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited,
180 Fleet Street,
London EC4A 2HD
Telephone No: 0171-421 4040
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)

____________________

MR M DE NAVARRO QC and MR R TYSON (instructed by Roebuck and Company, Heston, Middlesex) appeared on behalf of the Claimant.
MR F BURTON QC and MISS C PECK (instructed by Vizards, Staples and Bannisters, London WC1R 4LL) appeared on behalf of the Defendant.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE MUMMERY: I will ask Laws LJ to give the first judgment.
  2. LORD JUSTICE LAWS: This is a Claimant's appeal brought with permission to appeal, given on the principal issue argued before us by Pill LJ on 26th July 2000, against the judgment of Mr Leighton-Williams QC sitting as a Deputy Judge in the Queen's Bench Division on 14th February 2000. The Appellant had brought the proceedings against her former employers for damages for personal injuries said to have arisen from an accident which she suffered in the course of work as a Chambermaid at the Respondent's hotel on 26th January 1993. Summary judgment had been entered in the Appellant's favour on the issue of liability and the judge had only to try the question of damages.
  3. The Appellant had suffered a prolapsed intervertebral disc on the day of the accident, which I will describe shortly. She claimed also to have suffered a number of grave sequilae, in particular, a psychiatric illness and severe chronic back and leg pain. The learned Deputy Judge found that she would have faced these misfortunes, in any event, because of a pre-existing organic condition which rendered her vulnerable to a disc lapse prolapse and that the accident in January 1993 had done no more nor less than accelerate the onset of her symptoms by five years. He therefore made an award of general damages for pain, suffering and loss of amenity calculated by reference to the Appellant's troubles for the five years following the accident, and no more. The sum he arrived at was 12,500.
  4. The trial judge in fact gave leave to appeal this award, as I understand it, upon a narrow basis that concerned a then forthcoming, but still undecided, case in this Court by name of Heil v Rankin which was to look at the levels of awards of general damages in personal injury cases following a report from the Law Commission entitled "How much is enough?". Judgment in that case was given shortly after judgment in this and, as we were told this morning, the parties have agreed an adjustment to the 12,500 on what may be called the Heil v Rankin point.
  5. Upon the real issue in the case Mr de Navarro QC, for the Appellant, says that the judge's approach, based on a finding of acceleration, was wrong in principal. It is convenient to see how it is summarised in the perfected grounds attached to the Appellant's skeleton argument. Page 3:
  6. "In law the Learned Deputy Judge was only entitled so to limit the Appellant's claim if the chances that she would have avoided a similar physical and psychiatric outcome were so small or insignificant that they could be entirely discounted."
  7. Then at the bottom of the page:
  8. "... to approach the case as the learned Deputy Judge did by way of a 'cut off' date (in this case five years) was wrong unless the evidence justified the conclusion that similar physical and psychiatric consequences were virtually certain as opposed to merely more likely than not within that time."
  9. Mr de Navarro said that the correct approach was to calculate the Appellant's damages on the footing that the whole of her present and future disabilities are attributable to the accident, but then to make a discount for the chance that had the accident not happened nevertheless some other supervening event might, at some time, have caused her to suffer comparable pain, suffering, loss of amenity. In the alternative, it is said in the grounds that on the evidence the five year cutoff point was too low.
  10. I turn first to the facts. At the time of the accident the Appellant was 36 married with three children. The learned Deputy Judge dealt with the accident itself in the judgment, transcript 4H to 5B:
  11. "It was common ground that the claimant was making beds in the course of which she would have to move the beds which were on carpet. In the room she was cleaning at the time, the beds had no castors and therefore extra force was needed to move them."
  12. The judge proceeded to observe that different accounts had been given of precisely what had happened. He recorded the Appellant's evidence in Court about the accident as follows at 5G to 6D:
  13. "In evidence, which Mrs Kenth gave via an interpreter, she said that she had been on her knees as she had been instructed, pushing the bed. She could not move it and was going to leave it. Then she lost her balance and her legs twisted under her. Her back struck the video and TV behind her in the middle, just above the lower back, higher than the lower back. Her legs moved under her. Her legs twisted under her body and both her legs were under her back. She went to get up but could not. She lost balance because she had used force against the bed. Her legs were under her bottom but she had not fallen sideways. She just stayed in the same position and could not move her legs from under her. As she was trying to get up, she suddenly went back. She had suddenly gone back quite hard.
    She made clear in evidence that she did not feel pain before anyone else came along to help her."
  14. A little later at 7F the judge said this:
  15. "... I consider that the account she gave in evidence is likely to be the most accurate and it is certainly the one that is most consistent with the other accounts she has given. She was very clear she had no pain until after she had struck the video/television unit. She did not have pain on pushing the bed, nor, at the moment she struck the television, but when the first aid people were attempting to get her legs from under her.
    ...
    8C the evidence, therefore, the cause of the disc protrusion she undoubtedly suffered could have been the forceful pushing of the bed or awkward twisting as she over-balanced and possibly striking the television as she fell back against it.
    ...
    8F Precisely what happened is relevant, however, when it comes to assessing the pre-accident state of her back. It is common ground that for a disc to prolapse it must be degenerate. Thus the argument goes, the more degenerate the disc, the greater the chance of a prolapse when the disc is subjected to minor forces. In other words, it does not need great force to cause the prolapse.
    This is a point which Mr Burton seizes for the defendants. He says that on any showing, this was not a dramatic accident and not one where the claimant's back would have been subjected to significant stresses.
    ...
    9C He says the fact that such a significant injury resulted from such simple activity demonstrates how vulnerable her back in fact was and did not bode well for her future employment, especially given the type of work she did as a chambermaid. Thus he instances the 1991 incident as an earlier example of her vulnerability to low back problems manifesting themselves.
    It may be convenient at this stage to deal with the 1991 accident."
  16. The Deputy Judge then reviewed the evidence relating to this earlier incident in 1991, not least the contemporary notes made by the General Practitioner. Here is his conclusion at 13F:
  17. "...the 1991 incident was an incident very similar to that which she sustained on the occasion of this accident. I am satisfied that the 1991 incident did involve an injury to her lower back and it was a precursor for what happened in January 1993. I find that what happened is likely to have been what is recorded at the time in the GP's notes, namely she was pushing a bed and felt pain in her lower back on the right side and that her right leg was involved. According to her statement, the bed she was pushing on that occasion had castors on it. If so, then the effort involved is likely to have been less that on the occasion of her accident. The 1991 accident demonstrated the vulnerability of her lower back to injury."
  18. Finally relating to this at 16A:
  19. "I am satisfied that the claimant did recover from the November 1991 incident, but at the same time I am satisfied that after that date, and if not before it, an underlying vulnerability to further injury was present in the lumbar spine."
  20. The Deputy Judge then proceeded to trace the Appellant's history post-accident. Here I shall summarise. It became apparent from the CT scan taken in April 1993 that the Appellant had suffered a significant postero-lateral disc prolapse on the right involving a nerve route. The Appellant had refused an operation which was offered. She lost her job in June 1993. Thereafter there was a persistent history of back pain and leg pain. Her marriage deteriorated and the Appellant's husband finally left home towards the end of 1994. She took overdoses in November 1993, again shortly after her husband left and again in February 1997. Her misfortunes were compounded by the death of her father in India in August 1996. She put on weight to a gross extent. She was only 5'3" tall but by the time of the trial apparently weighed something like 13 stone, or a little more. The cause of that was not entirely clear. The judge proceeded to describe her general state, at the time of the trial, as follows in 22G:
  21. "She leads a most unsatisfactory life. She suffers from back pain, pain in the right leg and many other aches and pains, she as in the shoulders and the neck. She has, she said, good days and bad days. But she spends most of her days in bed or sitting down. She rarely goes out, save to a supermarket with her son. Her son said she sees one friend. She does not associate with other Indians, as she did before the accident. She has difficulty in walking. At most it seems she can walk about 50 yards. When she attended Dr Strachan [the orthopaedic expert who gave evidence on her behalf] he assesses that she was able to walk that distance. She has a wheelchair but does not use it at home. The extent to which she uses it out of the home is not entirely clear.
    When she came to Court she gave evidence sitting in an easy chair which was specially brought for her. She has a host of medical problems. She is, as indicated, now grossly overweight, her weight having close to doubled since the time of her accident. She is troubled with her knees, where she says she has arthritis. She bandages them. Mr Strachan says there is some crepitus there but it is not, as he sees it, serious. No one has taken any X-rays, as far as I aware, of her knees.
    It is questionable whether she has a cardiac problem. Investigations have been negative (happily) but the GP still prescribes her tablets for angina. She suffered for some years with menstrual problems, as the GP's note confirm. In July 1998 she underwent a hysterectomy, clearly not related to this accident. She said in evidence that she had been told she had cancer. That seems to me unlikely, although it is possible that she may have been told that there was a risk of cancer if she did not undergo a hysterotomy. She is, at the very least, desperately unhappy. She is very concerned about her plight and also concerned about the plight of her children, whose lives, she says, have been blighted by having to care for her.
    It is against this background that the consequences of the accident have to be considered."
  22. The learned Deputy Judge then proceeded to deal with the expert medical evidence. Mr Strachan, the orthopaedic surgeon called by the Appellant, examined her for the first time in November 1999. He had not treated her. The Respondent's orthopaedic expert was Mr Millner. The Respondent also called a neurosurgeon, Mr Maurice-Williams. The Appellant for her part instructed a consultant neurosurgeon, Mr Gullan. However he was not called and his reports were put in for the defence. Each side called a psychiatrist: Dr Master for the Appellant, Dr Gaind, for the Respondent.
  23. An important issue for the judge was whether, at the date of trial, there remained an objectively identifiable organic basis for the Appellant's complaints, especially of back and leg pain. Only Mr Strachan thought there was. He considered a consequence of the disc prolapse involving the nerve might have been the development of adhesions or alternatively a neuroma, which is a form of tutor. Although the discs had later slipped back into place, the effects of the compression, which is caused, lingered on. Mr Strachan recommended a surgical procedure such that if adhesions were found they could be divided. A neuroma, on the other hand, could not be operated on. Mr Millner discounted altogether the presence of a neuroma and accepted the presence of adhesions as theoretical possibility only. Mr Maurice-Williams categorically discounted adhesions or a neuroma. Mr Gullan's reports were consistent with that position. The judge concluded at 35A:
  24. "What I have to decide on this evidence is whether there are continuing organically derived root signs and symptoms here. The majority of those who considered the issue, whether as treating doctors or for the purposes of providing opinions in this case, are of the view that there is no convincing evidence of a continuing nerve root problem. Mr Strachan in this respect is on his own and I am not convinced that he is right that there are adhesions present in this case causing the claimant continuing disability. It is a theory but on the evidence I am not satisfied that it is more than that. He himself was careful to point out that the scans were by no means unequivocal on these matters.
    I am satisfied that there is no neuroma present. Mr Milner said it would show on an MRI and that evidence has not been contradicted."
  25. The learned Deputy Judge then looked at the psychiatric evidence. He found that the Appellant's back and leg pains were probably no longer attributable to any involvement of the nerve root by the time of the CT scan that had been taken in December 1995. She had been clinically depressed from time to time. The judge could not assign a cause to the weight gained. The judge then proceeded to address the question of acceleration distinctly. He introduced the matter thus at 46G:
  26. "A central issue in this case is what would have happened had the claimant not had this accident. Would she at some time have developed a back condition comparable to that which she now has and would the other consequences which have affected her have likely occurred in any event?"
  27. The judge then listed the factors relevant to the question whether there had been, or might have been, acceleration. Thus 47C:
  28. "First, the fact that the disc did prolapse, so that if there was degeneration there, it manifested itself. Second, the fact that in November 1991 the claimant had, as I conclude, near identical symptoms involving the right-hand side of the back. That I am satisfied was a significant episode. Third, the type of work that the claimant did, which inevitably would impose some strains on her lumbar spine. Fourth, the fact that it occurred on this occasion when, on the face of it, she did not impose any significantly excessive strain on her lumbar spine. Fifth, the severity of the injury on this occasion with organic signs and symptoms lasting for up to three years, despite the fact that there was obvious degeneration in the spine and the disc itself was not obviously degenerate. Sixth, the comparatively young age at which the claimant first had a low back problem. In 1991 she was about 34 years old, or younger if one looks at the alternative date of birth she has put forward."
  29. The judge then summarised the doctor's views as to acceleration.
  30. Since this part of the evidence is at the centre of the appeal I should deal with it just a little more fully than did the judge. In a second report, dated 2nd February 2000, Mr Strachan opined that but for the accident the Appellant could have continued as a chambermaid: "until at least 55 years old if not normal retirement age". Then in a joint statement following a meeting held by himself and Mr Millner Mr Strachan is stated as accepting that:
  31. "mild degenerative changes in her knees may have shortened her working life as a chambermaid to the age of 55."
  32. In his report, following an examination on 2nd September 1996, Mr Millner stated:
  33. "I have no doubt that Mrs Kenth had a degenerative disc, and, in view of the type of work she was carrying out at the time the alleged incident occurred, I think it is very unlikely that she would have continued with that work for very much longer and would, in all probability, have had to have given it up within a year, and most probably six months, even if this incident had not occurred.
    It is also noted that this lady is extremely obese, weighing 13 st 4 1bs pounds and only being 5'3 in height; has developed osteoarthitis in her knees, and appears to have subsequent cardiac problems. None of these can be related to the accident, and would have been further factors in terminating her employment as a chambermaid."
  34. Mr de Navarro has a footnote to this passage in the evidence, namely that the osteoarthritis seems to have been mild and the cardiac problems a false alarm.
  35. In the joint statement made with Mr Strachan
  36. Mr Millner's views were slightly modified:
  37. "Mr Millner thinks that even without the accident she would not have continued her work as a chambermaid beyond another year from the time the index incident occurred."
  38. In a letter, dated 7th December 1999, to Mr Gullan, with whom he had discussed the case, Mr Maurice-Williams said this:
  39. "Even had the index accident not occurred, it is likely that the progression of her underlying spinal degenerative condition, combined with her knee osteoarthritis and her subsequent obesity, would have prevented her from continuing her work as a chambermaid. We agree that it is unlikely that she would have been able to continue work as a chambermaid for longer than five years from the time of the index accident, even had the index accident not occurred."
  40. I should also note these following references in the oral evidence. First Mr Millner, in-chief, transcript 9th February 2000, page 9, lines 23 to 33:
  41. "Q. And you pose a period of what the lawyers call 'acceleration' of about six months to a year. Is there anything that you have since subsequently read or seen or through discussions that you have entered into which has led you to alter your opinion?
    "A. No. I think about a year, as far as any organic problems are concerned, would be the acceleration factor.
    THE JUDGE: What is the basis for choosing one year?
    A. The fact that she had had a significant problem before in 1991. There are other incidents of her taking time off work for back problems prior to 1993."
  42. Page 10, lines 2 to 11:
  43. "What I am saying is that overall the condition of her back, because we now know that she does not have this prolapse, overall the progression of the problems with her back would have been such that I think her problems, particularly as far as employment is concerned, in a job where I understand she did have to move beds, but with the change in her back and the fact that she reduced the disc in what would appear to be a relatively minor injury, leads me to think that she would have inevitably had a similar back problem within a year."
  44. Then in cross-examination by Mr de Navarro page 32, lines 31 to 34 it is the witness speaking:
  45. "This was an incident which occurred in her normal every day work and if she continued with that sort of work, it is highly likely that a similar incident would have occurred within the next, I say, year."
  46. Then Mr Maurice-Williams in-chief (transcript also 9th February 2000, page 9, lines 12 to 20):
  47. "Q. You have had an opportunity of looking at the scan and I want to know what your view today is in the light of your analysis of the scan with respect to this particular issue.
    A. The accelerating effect?
    Q. Yes.
    A. Well, my lord, I think it is always a guess. I think probably more than six months. It is very difficult to say. Perhaps one, two, three years. It is largely speculative, as I think Mr Millner said."
  48. Then cross-examined at page 10, lines 6 to 15:
  49. "You say one, two, three years and it is all very difficult, before what?
    A. Before she would have been in the state that she is in now.
    Q. As a result of what?
    A. I think there was evidence that she had had some problems with her back before. The accident does not appear to have been of a terribly dramatic nature. It was not trivial but it was not a very major accident. She was somewhat overweight, I think, and was involved in a job which would put a certain amount of stress on the back."
  50. Then page 11, lines 4 to 8, it is the witness speaking:
  51. "A. I would have thought that in this sort of job sooner or later one was bound to have this sort of strain. It is not the sort of thing, as I have said before (inaudible) in this event and a job that involves a good deal of bending forwards and pushing and twisting."
  52. Mr Maurice-Williams was closely cross-examined about his estimate of an acceleration of one to three years, page 13, line 25 to 14, line 17:
  53. "Q If the disc and the annulus are extremely damaged before that minor incident, that would explain how that can happen. But short of some evidence that they were, one has got an incident which, on a fair view of it, if not the most major one in the world equally is not the most minor one in the world. It is not just bending over, or something, is it?
    A No. It is not trivial, but on the other hand it is the sort of thing which one would expect to happen from time to time with somebody who is working as a chambermaid. There must be quite a lot of stress to the back bending over, pulling open drawers with the bits of furniture.
    Q. I am not suggesting to you that the proper approach to this case is that this was a back that there is no chance it ever was going to go, because that would be unrealistic. What I am suggesting to you is that you are plucking a figure of one, two, or three years and in effect saying 'I am sure that within that time a similar protrusion causing a similar amount of pain to set off all the other problems would have occurred', is putting it much too high.
    A. I think it would have happened before too long. As I say, it is a guess, whether it is one year, two years or three years.
    Q. What are you saying about that? Are you saying
    'I am sure it would have happened within that time, or are you saying 'Well I think there is a chance of it happening within that time', or 'I think there is a better than evens' chance of it happening within that time, or what?
    A. I do not say 'certain'. I think it is more likely than not. One cannot be dogmatic about it."
  54. Then the same page, page 14, line 35 to page 15 line 5, within the question:
  55. "...my suggestion to you is that the reality of this case is that of course it is possible that the disc may have come out, may have caused nerve root irritation in a similar way and then set the whole chain off, but equally it is well possible that it may not have done.
    A. It is possible it might not have done. I just think that it is more likely than not that it would have happened within a foreseeable number of years."
  56. Finally, the witness was asked about his letter to Mr Gullan page 25, lines 15 to 24 within the question:
  57. "What you say is 'agree that it is unlikely that she would have been able to continue work as a chambermaid for longer than five years from the time of the index accident, even had the index accident not occurred.' In the light of your then view that the CT scan might show something significant or might show merely something minimal and the fact that it has now turned out to show something significant, I wonder how we get to 1, 2, 3 rather than 5 plus?
    A. One could stretch it to five years."
  58. The judge expressed his ultimate view about acceleration in this way at page 48F:
  59. "In reaching these conclusions the doctors of course sought to take an overview of the situation and on some occasions have taken into account matters such as obesity and arthritis in the knees which, to a greater or lesser extent, may not have played a part. But I am satisfied in substance the essential is that five years was a reasonable maximum, in their view, to consider the claimant would have continued to be able to carry on in her pre-accident work.
    I conclude that these injuries accelerated the claimant by a period of five years as the result of the defendant's negligent. I see no reason to conclude that the consequences to the claimant would have been significantly different, had the accident occurred five years later. Given that the marriage broke down so quickly in 1993, I consider the same course would likely have followed in 1998, some five years later. She would have lost her job, assuming she was still employed in similar work. Her father would have already died, so that burden would have been faced at a time when she would have been more resilient. If her increase in weight was attributable to the accident, that, too, would have occurred. If not, it was destined to be a problem for her in any event.
    In short, I can see no reason not to conclude that in substance the same consequences would have occurred some five years later."
  60. I shall deal, in a moment, with the judge's choice of approach to general damages of pain, suffering and loss of amenity. That is acceleration rather than a calculation on the basis that everything is attributed followed by the application of a discount. It is convenient, at this stage, to make it clear that for my part, in the light of the evidence which I have reviewed, the judge's conclusions, which I have just set out, seem to me to be beyond the scope of any sensible challenge in this Court. So if acceleration be the right approach, or a permissible approach, the judge's choice of five years is unassailable. Indeed I think Mr de Navarro did well to get the judge up to five years on the evidence.
  61. I do not, with respect, attach any significance to the judge's use of the words "the accident" at page 49C. The judge cannot have been contemplating a scenario in which precisely the same accident must have been in the doctors' minds, or must have been prognosticated in the evidence. Overall, and on a fair reading both of the medical evidence and of the judge's conclusions, the picture that one had is of a holding by the judge that an event would have occurred no more than five years later, which would have produced effectively the same consequences for this lady as in fact she suffered following the accident in 1993. The judge was faced at trial with the alternative contentions that are now deployed before us: acceleration or 100 per cent calculation less discount. This is what he said at 50E:
  62. "The difficulty in that approach [Mr de Navarro's approach] is how do I assess the chance? Whether it is assessing a period of acceleration or assessing a chance, it is an element, and one has to accept this, of guesswork, of intuition on the evidence in the case. It seems to me that the evidence here is such that it is right to conclude that there was a period of acceleration and having done that, it seems to me that the most reliable way of evaluating the claim hereafter is to base it on that assumption and not to assume that all consequences would have followed and then discount."
  63. Can the judge be criticised for adopting, on the evidence before him, an acceleration approach? The starting point, as it seems to me, is that in the ordinary way a Claimant must, of course, prove his case both as to liability and quantum on the balance of probabilities. However, there are circumstances, it is clear, where an absolute or blanket application of this ordinary rule creates injustice, especially to the Claimant and especially where the issue is as to future facts or hypotheticals, rather than past facts. Broadly, at least, past facts are perhaps generally and always decided upon the balance of probabilities: see, for example, their Lordship's reasoning in Hotson v East Berkshire Area Health Authority [1987] 1 AC 750.
  64. A particular instance of unfairness that might be produced by the application of the conventional balance of probability test arises in circumstances such as this. A Claimant, assuming liability is in his favour, proves that in consequence of the Defendant's negligence, apart from other ills, he is at heightened risk of some damaging, supervening event, but the risk may be well under 50 per cent. He has not proved that it will probably eventuate. A well-known example in a personal injury case is where it is shown that the Claimant faces say a 10 per cent risk of developing epilepsy, or there is a 10 per cent risk of his life being shortened by X years.
  65. There are other examples outside the field of personal injury where a litigant proves professional negligence against his former solicitor for failing to put in his claim before a limitation period has expired. The X-client's action is not defeated on grounds only that the judge cannot hold that if the original claim had gone forward and in time the Claimant would probably have succeeded against this original Defendant. In such a case as this, and in the personal injury cases where there is a possibility of some supervening event, what the Claimant has truly lost is a chance of obtaining a benefit, or the chance of being fixed with a detriment. The use of the loss of a chance methodology is very well-established.
  66. We were shown the fatal accident case of Davies v Taylor [1974] AC 207 especially in the passage in Lord Reid's speech, pages 212A to 213C and also the judgment of Stuart-Smith LJ in Allied Maples Group Limited v Simmons & Simmons [1995] 1 WLR 1602. As it seems to me, the use of a loss of a chance doctrine or approach serves to reflect an important reality, namely that a Claimant may, as I have said, have been deprived of a significant opportunity of benefit or be fixed with a significant chance of detriment by virtue of the Defendant's negligence. His loss, in such circumstances, ought to be repaired in common justice. But in my judgment considerations of that kind are not truly engaged on the facts in the present case.
  67. In my view the judge was entitled here to hold that the Appellant would have suffered largely what she, in fact, suffered in course of time and in consequence of an unrelated supervening event given the pre-existing vulnerability of her back. Indeed, the experts were effectively agreed about that. It is right that there are passages in which they speak of the possibility of such an event as being merely more probable than not, rather than a certainty. Mr de Navarro's submission is that the acceleration approach is only permissible if the proposed future event is a certainty. It seems to me that that is altogether too rigid a position.
  68. Broadly speaking, in the present case, there was a measure of agreement about the onset of a supervening event at some time, but at first at least a measure of difference as to the length of the acceleration that that involved. It might be said that though there are dangers in being over-analytical, that the potential future event goes to causation in the case whereas the length of the acceleration goes to quantification. However that may be, the truth is that the judge's approach here gave the Appellant the benefit of five years, assumed to be entirely trouble free, without this accident, and it is to be noted that an appropriate award of loss of earnings of 100 per cent basis was made in respect of the five years. Likewise, of course, the approach assumes it to be a certainty that but for the accident she would have had like troubles after five years.
  69. The position here arrived at might perhaps coarsely be described as a swings and roundabout approach. What one cannot say is that it is, by reference to any principle, in some way less fair or just to the Appellant. Theoretically, indeed, the acceleration approach ought to produce the same result as Mr de Navarro's approach. In the event then I would accept the Respondent's submission summarised in counsel's skeleton argument, page 8, paragraph 10, that the notion of acceleration:
  70. "This is simply a methodology of assessing the value of the Claimant's losses. It could have been expressed in terms of a chance if the medical evidence was presented in that form or if the medical witnesses had said that they did not know when symptoms would arise only that they would arise at some indeterminate time."
  71. Before us this afternoon Mr Burton QC for the Respondents sought, in particular, to emphasise the passage on the next page and it is convenient to read it:
  72. "None of the experts including the Claimant's expert sought to look at the matter in terms of a percentage chance that the Claimant would have had or avoided a similar accident and with similar sequelae. The Claimant's counsel never addressed the Judge as to what percentage ought to be the chance occurrence on the basis of the evidence yet now invites this court to do precisely that. The Judge can hardly be criticised for expressing his findings in the way that he did given the way in which the evidence was presented. It would have been wholly wrong for the Judge to express it in terms of a percentage chance given that this was not the way in which the evidence was canvassed."
  73. It seems to me, on the particular facts here, that those submissions are correct. It is to be noted that the acceleration methodology has been used extremely commonly as cases corrected in Kemp, referred to by the Respondents, amply demonstrate. I hope I may be forgiven if I do not set them out. In the result, at the least the learned Deputy Judge was entitled to proceed as he did. This was, in truth, a case where an acceleration approach was entirely proper. One can readily imagine, if this or that aspect of the case had been fashioned somewhat differently, that a different approach might have been at least that appropriate, perhaps more appropriate. As always in these cases, and one must go on with the particular facts and the evidence that was given and in relation to those in my judgment, the approach here taken cannot be faulted. I would dismiss the appeal.
  74. LORD JUSTICE MUMMERY: I agree.
  75. SIR ANTHONY EVANS: I agree.
  76. Order: Appeal dismissed with costs subject to detailed assessment of Claimant's costs by Costs Judge.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1283.html