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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 >> Rust-Andrews v First Tier Tribunal (Social Entitlement Chamber) & Anor  EWCA Civ 1548 (19 December 2011)
Cite as:  EWCA Civ 1548,  AACR 33
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ON APPEAL FROM
UPPER TRIBUNAL ADMINISTRATIVE APPEAL CHAMBER
UPPER TRIBUNAL JUDGE ROWLANDS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
SIR ROBIN JACOB
|- and -
|FIRST TIER TRIBUNAL (SOCIAL ENTITLEMENT CHAMBER) & ANR
No attendance in Court by the Respondent's Counsel
Ben Collins for the Interested Party
Hearing date : Monday 7th November, 2011
Crown Copyright ©
LORD JUSTICE CARNWATH :
i) The tariff award was increased to £8,650 (a level 12 award of £8,200 for a disabling mental illness lasting 2 to 5 years and £450 for her physical injuries).
ii) No award was made for loss of earnings or reduced earning capacity.
i) The FTT increased the tariff award for psychiatric injury to level 14 (£13,500): a disabling mental illness lasting over 5 years, but not permanent.
ii) They awarded £19,028 for her past and future loss of earnings and £1,000 for her loss of pension.
iii) For special expenses, they awarded the prospective cost of a course of Cognitive Behavioural Therapy and travel expenses (£2,504).
The medical evidence
"6. According to Dr Ann Stanley, a consultant forensic psychiatrist, there was evidence that the claimant had suffered from Post Traumatic Stress Disorder. In August 2005, three years after the assault, Dr Stanley recorded that the claimant still had not been able to return to work on a 0.8 basis but she was back on a 0.5 basis and it was anticipated that she would be able to increase her hours in the next 12 to 18 months. Dr Stanley also considered that, on the balance of probabilities, the claimant was unlikely ever to meet her full potential.
7. A year later, the claimant was still working on a 0.5 basis, although her employers had continued to pay her on a 0.8 basis. On 22 June 2006, Dr Stanley answered a number of specific questions put to her by the claimant's solicitors, although she emphasised that she had not seen the claimant since the previous year. She estimated the risk of the moderately disabling mental illness continuing beyond the fifth anniversary of the assault at 70%. Without treatment from a chartered clinical psychologist, she put the risk of the illness being permanent also at 70% but said that, with such treatment, the risk dropped below 50%. She recommended a further 18 months of such treatment, which would be available from the NHS in some areas. Crucially, in an answer corrected on 5 July 2006, she considered the risk of the claimant not being able to increase the extent of her work from 0.8 to 0.5 was 60% without such treatment but 40% with treatment…
8. On 2 August 2006, a chartered psychologist estimated that the claimant would need 8-20 sessions of cognitive behaviour therapy which would cost £80 each if done privately. Her GP had said that there would be a wait of about 3 months for an assessment and another 6 months for treatment on the NHS and that about 6 sessions would be available. The psychologist repeated her advice on 12 February 2008. During the intervening period, the claimant had not sought cognitive behaviour therapy but had continued with counselling paid for by her employers."
The 2001 Scheme
"Where, in accordance with any provision of the scheme, it falls to one person to satisfy another as to any matter, the standard of proof required shall be that applicable in civil proceedings."
This approach is also reflected in the wording of the scheme itself. Thus, paragraph 20 states:
"The standard of proof to be applied by a claims officer in all matters before him will be the balance of probabilities."
Similarly in relation to the Panel, paragraph 64 provides:
"The standard of proof to be applied by the Panel in all matters before it will be the balance of probabilities. It will be for the appellant to make out his case".
"a standard amount of compensation by reference to the nature of the injury in accordance with paragraphs 26-29"
The standard amounts are set by reference to a tariff, which specifies different amounts, depending on the type and seriousness of the injury, ranging from level 1 to 25. In this case, the relevant injury was "mental health" (which the tariff defines as including "post-traumatic stress disorder"), the relevant levels being 12 and 14:
"disabling mental illness, confirmed by psychiatric diagnosis:
- lasting 2 years to 5 years (12) £8,200
- lasting over 5 years but not permanent (14) £13,500"
As noted above, in raising the award from £8,200 (level 12) to £13,500 (level 14) the tribunal were accepting that it would last longer than 5 years from the date of the injury. This aspect of the award is not in issue.
" (b) where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury (other than injury leading to his death), an additional amount in respect of such loss of earnings, calculated in accordance with paragraphs 30-34;"
"32. Where, at the time the claim is assessed, a claims officer considers that the applicant is likely to suffer continuing loss of earnings and/or earning capacity, an annual rate of net loss (the multiplicand) or, where appropriate, more than one such rate will be calculated on the basis of:
(a) the current rate of net loss calculated in accordance with the preceding paragraph; and
(b) such future rate or rates of net loss (including changes in the applicant's pension rights) as the claims officer may determine; and
(c) the claims officer's assessment of the applicant's future earning capacity;…
For the "current rate of net loss" (para (a)), reference has to be made to the preceding paragraph 31, under which the loss of earnings is calculated by reference to a formula, the starting point for which is –
"(a) the applicant's emoluments... at the time of the injury and what those emoluments would have been during the period of loss; ..."
"make such adjustments as he considers appropriate to take account of any factors and contingencies which appear to him to be relevant."
"33. Where a claims officer considers that the approach in the preceding paragraph is impracticable, the compensation payable in respect of continuing loss of earnings and/or earning capacity will be such other lump sum as he may determine."
The FTT decision
"the risk of the Appellant permanently suffering from a moderately disabling mental illness would drop to below 50%"
They concluded "in view of all of the evidence read and heard" that the injury should be compensated at level 14, based on a disabling illness over 5 years but not permanent, adding:
"On the balance of probabilities according to Dr Stanley, following treatment, the risk of the Applicant permanently suffering from a moderately disabling mental illness falls to below 50% and therefore cannot be said to exist on the balance of probabilities, which is the standard set out in paragraph 64 of the Scheme."
"Dr Stanley has not advised that the problems with tiredness will on the balance of probabilities prevent the Applicant being able to return to full-time employment. They "might" only do so. The Tribunal is not satisfied on the balance of probabilities that, by reason of psychiatric injury arising from the attack, the Applicant will be prevented from returning to full-time employment..."
The case before the Upper Tribunal
"Mr Sanderson argues that the assessment of loss for the purposes of the 2001 Scheme should follow the approach of the courts in personal injury cases and that, had it applied that approach to its findings, the First-tier Tribunal ought to have compensated the claimant on the basis that, even if she had had the cognitive behaviour therapy, there would have been a 40% chance that she would have continued to have a loss of earnings."
Mr Sanderson had relied on the contrast between the words "would have been" in paragraph 31(a) and the word "likely" in the opening words of paragraph 32, which he submitted was "consistent with the use of the balance of probabilities for proving past loss and the evaluation of a chance for assessing future loss". He also referred to statements in the annual reports of the authority, to the effect that the 2001 Scheme "reflects the basic elements of common law claims", and that paragraph 33 was designed to permit a lump sum award in line with the guidance "given in common law cases such as Smith v Manchester Corp."
"In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."
In Davies v Taylor, Lord Reid said (at p 213):
"You can prove that a past event happened, but you cannot prove that a future event will happen and I do not suppose that the law is so foolish as to suppose that you can. All you can do is evaluate the chance. Sometimes it is virtually 100 per cent.: sometimes it is nil. But often it is in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent. and a probability of 49 per cent."
He noted also cases such as Smith v Manchester Corporation (1974) 17 K.I.R. 1 and Moeliker v Reyrolle & Co Ltd  1 W.L.R. 132, where claimants had undoubtedly suffered permanent disabilities but the quantification of loss depended on the evaluation of the chance of a loss of employment happening in the future.
"However, that argument ignores Lord Reid's point that one cannot prove that a future event will happen… in my judgment, the common law does require loss to be proved to the balance of probabilities. It is just that, where the common law requires loss to be quantified by the evaluation of a chance, what it requires to be proved on a balance of probabilities is firstly causation and secondly the assessment of the risk." (para 27)
"32. The question that arises is to what extent the standard of proof is relevant in these circumstances. At common law, past loss must be proved on the balance of probabilities, except where it depends on the evaluation of a chance of a third party having acted in a particular way. In my view, paragraph 31 requires the same approach. I do not regard the words "would have been" in subparagraph (a) as requiring a different approach where the loss depends on the action of a third party. Evaluating the chance is then the proper way to determine what "would have been" the emoluments of, say, a person who was a child at the date of the injury but an adult at the date of the calculation of compensation. What paragraphs 20 and 64 require the claimant to prove on the balance of probabilities is the current degree of probability of the chance materialising. They do not require that the degree of probability itself be over 50%.
33. The position is even clearer in relation to paragraph 32, where subparagraph (c) recognises that there must be an "assessment" of future earning capacity and where paragraph 33 allows a different approach if the mathematics required by paragraph 32 is impractical. It is hard to see why the mathematics should be impractical if all the elements must be proved on the balance of probabilities. Paragraph 33 seems a clear acceptance of the approach taken in Smith v Manchester Corporation and similar cases. Again, the claimant must prove the degree of probability of the chance materialising."
"I accept Mr Collins' submission that Dr Stanley's assessment of the probability of the claimant not being able to increase her work due to her illness continuing if she did, or did not have, the relevant treatment went to causation (the issue arising under paragraph 23(b) of the 2001 Scheme) rather than quantification (the issue arising under paragraphs 31 to 33 of the Scheme). The First-tier Tribunal was prepared to accept that the claimant would not be able to return to work full-time until June 2010 but it did not accept that there would be any reduction in earning capacity after that. This case is distinguishable from Smith v Manchester and other cases where a continuing loss of earning capacity was proved on the balance of probabilities and what remained was merely the quantification of the resultant loss of earnings. Therefore I agree with Mr Collins that the common law approach does not assist the claimant on this part of the case." (para 35)
The issues in the appeal
"11. Thus the question whether a claimant's hand was damaged in an accident at work is a matter to be decided on the balance of probability. So also is the hypothetical question whether, if the employer had duly provided the necessary protective equipment, the claimant would have worn it… By way of contrast, whether the claimant's damaged hand will develop osteoarthritis in later life calls for an estimate of the chances of that happening. Whether, hypothetically, his hand would have been likely to develop osteoarthritis in the future even without the accident also calls for such an estimate."
"… the task of the FTT was to assess what the outcome would have been if the claimant had undertaken the proposed treatment. It did so, relying on Dr Stanley's evidence that with appropriate treatment the risk would have reduced to 40%.Even at common law it would not have been appropriate to approach this issue on the basis of a loss of a chance. This is a question of pure causation, as analysed by the House of Lords in Gregg v Scott… Gregg is authority for the proposition that in a common law claim for personal injury, questions as to what would have happened if a past event had taken place are properly decided according to the balance of probabilities, not by the assessment of a loss of a chance."
"17.3 Subject to paragraph 17.4A, the appellant must file the appellant's notice at the appeal court within 28 days after the date of the decision of the lower court being appealed."
17.4 Where a statement of the reasons for a decision is given later than the notice of that decision, the period for filing the appellant's notice is calculated from the date on which the statement is received by the appellant.
17.4A (1) Where the appellant wishes to appeal against a decision of the Administrative Appeals Chamber of the Upper Tribunal, the appellant's notice must be filed within 42 days of the date on which the Upper Tribunal's decision on permission to appeal to the Court of Appeal is given." (emphasis added)
"The CICA moved from London to Glasgow in September 2007. In the years before the move, a series of problems had arisen in dealing with cases. These problems were noted in a National Audit Office Report of December 2007 and have since been successfully addressed. The regrettable delays which occurred in this case in 2004-2007 are not indicative of the way the CICA functions today…"
Lord Justice Stanley Burnton:
Sir Robin Jacob: