Background to the Claim
Langleys were instructed to act on behalf of the Defendant, Sealant Construction Services by their insurers Aspen Insurance.
In the course of his employment the Claimant, Mr Smithurst, was provided with a van by his employer, Sealant Construction Services Ltd. However, due to a defective locking mechanism the rear doors of the van could only be opened from the inside. Mr Smithurst had to lean over the front seats, half crawling between them and stretch in order to open the doors.
On the day of the accident the rear compartment of the van was filled with tools and equipment, including two 25 litre barrels of water which Mr Smithurst had to move out of the way, mid-stretch, in order to reach the doors. As he pulled his body towards the back doors he felt a pain in his leg which he thought was cramp.
The pain worsened and subsequent hospital investigations revealed he had suffered a massive prolapse of a disc in his back which damaged the nerve fibres at the lower end of the spinal cord. Mr Smithurst’s symptoms failed to improve following surgery. This meant he was unable to continue working. He also suffered considerable neurological damage including cauda equina syndrome leading to urinary and sexual dysfunction.
Liability Admitted
The Defendant admitted liability, subject to a reduction for contributory negligence. The real dispute concerned the medical evidence. The crucial question was whether Mr Smithurst would have suffered a similar injury in the future and if so when.
Contradictory Expert Opinion
The parties’ experts produced contradictory evidence. The Claimant’s expert argued that he was unlikely to have suffered a similar prolapse in the future, although conceded at trial Mr Smithurst would have sustained a disc prolapse in 8 years (but it would not have been as massive).
However, the Defendant’s expert opined that Mr Smithurst was likely to have suffered a similar prolapse within two years with the same resulting neurological damage. Angus Withington, Counsel for the Defendant submitted that the accident had accelerated Mr Smithurst’s condition by two years and thus his losses should be restricted to that period.
However, Counsel for the Claimant argued that if the Judge thought there was any significant risk that the Claimant would have suffered a similar injury in the future, then the correct approach would be to assess the risk and then reduce the damages by an appropriate amount to reflect it. This argument would still entitle the Claimant to recover significant damages given the injury, the loss of earnings and care claim. It also raised a challenge to the traditional manner in which damages would be assessed by the Courts in an acceleration type case.
Trial
The Trial Judge held that the fundamental issue was one of causation. When applying the ‘but for’ test (but for the accident the claimant would not have suffered injury) he found that the Claimant would have suffered a similar injury within two years of the accident and accepted the Defendant’s medical evidence in its entirety. Damages were to be assessed on this basis.
Appeal
The Claimant appealed on the ground that the acceleration approach adopted by the Judge was incorrect. He argued that the Court had to consider the medical evidence in relation to the assessment of damages and compensate him for the loss of a chance. He argued this should be achieved by discounting the full losses to reflect that it was only on the balance of probabilities such arguments could succeed and the Court had to factor in the chance that this would not have happened.
Appeal Dismissed
The Court of Appeal rejected the Claimant’s arguments although they did stress the importance of distinguishing between proof of damage and assessment of damages.
A reminder was given that ‘proof of damage’ is an essential element in any negligence claim. A Claimant must prove on the balance of probabilities that a Defendant’s act or omission caused the harm which is the subject of the claim.
This is distinct from an ‘assessment of damages’ which determines the extent of the loss suffered by a Claimant. This was the correct point at which to enquire into what would have happened to the Claimant in the past or future had the accident not occurred.
The Court of Appeal referred to Lord Diplock in the case of
Mallett v McMonagle [1970] A.C. 166:
"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."
The Trial Judge was wrong to treat the question for determination of extent of loss as one of causation and, therefore, determine it on the balance of probabilities.
Nevertheless, the Court of Appeal held that the appropriate way to assess damages in this case was to adopt the acceleration approach. The Trial Judge had been entitled to prefer the Defendant’s expert evidence that Mr Smithurst was likely to suffer a similar injury within two years of the accident and on that basis the damages would be assessed.
Conclusion
Had the approach adopted by Counsel for the Claimant been accepted by the Court, this would have had far reaching consequences for insurers. If a Court had to compensate Claimants for the loss of a chance in these types of cases then compensation pay outs would increase dramatically. The scope for such an approach has to be recognised as ‘acceleration’ type cases are part and parcel of personal injury litigation. Fortunately for insurers, the Court of Appeal adopted a common sense approach.
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