Cadet's Car Rentals and another v Pinder
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones |
| Judgment Date | 28 January 2019 |
| Neutral Citation | [2019] UKPC 4 |
| Docket Number | Privy Council Appeal No 0033 of 2017 |
| Court | Privy Council |
| Date | 28 January 2019 |
[2019] UKPC 4
Lord Kerr
Lord Wilson
Lord Hodge
Lord Lloyd-Jones
Lady Arden
Privy Council Appeal No 0033 of 2017
Hilary Term
Civil Practice and Procedure - Appeal — Whether the Court of Appeal erred in law in substituting its award for that of the Chief Justice in circumstances where there was no basis for disturbing the award below — Whether the Court of Appeal erred in law in substituting a multiplicand of $19,240.00 — Whether the Court of Appeal erred in law in holding that the Chief Justice was wrong in law in applying a multiplier of 19.1 — Whether the Court of Appeal erred in law in its application and use of the Ogden Tables.
Larell Hanchell
Craig Butler
(Instructed by Lojay Law Chambers)
Nadia A. Wright
Clinton C. Clarke
(Instructed by Providence Law)
On 4 February 2013 the appellant, Mr Harry Pinder, was involved in a road accident on the island of Eleuthera in the Commonwealth of the Bahamas. A car driven by Mr Pinder collided with a car driven by Mr Walter Boname, which had been rented from the second respondent, Cadet's Car Rentals. Mr Boname died as a result of the accident and Mr Pinder suffered serious injuries, including a fracture dislocation of his right hip which left him with a permanent disability. Mr Pinder brought legal proceedings in the Supreme Court of the Commonwealth of the Bahamas against the estate of Mr Boname and Cadet's Car Rentals claiming damages in negligence for personal injury and consequential loss. When the case came to trial liability was not in issue but there remained a dispute as to the assessment of damages.
Mr Pinder was aged 32 at the date of the accident and 34 at the date of the trial. At the trial, Sir Michael Barnett, Chief Justice, found that at the date of the accident Mr Pinder was employed as a mason earning an average of $520.00 per week and that he had other employment at the weekend as a handyman from which he earned about a further $250.00 per week. At the date of trial, he was no longer employed. The Chief Justice found that, as a result of the accident, Mr Pinder, while able to work, could no longer work as a mason. He had only a high school education. The Chief Justice rejected a submission that Mr Pinder could earn more as a fisherman than he had as a mason; he accepted the medical evidence that work as a professional fisherman was not an option. The Chief Justice held that in his condition following the accident he was likely to earn about $400.00 per week. He concluded that as a result of the accident Mr Pinder had suffered a weekly loss of income of about $370.00 which translated into a loss of future income of about $20,000.00 per year.
The Chief Justice made an award of $380,000.00 in respect of loss of future earnings. He arrived at the figure by applying a proposed multiplier of 19.1 which he considered reasonable. He did not accept a submission on behalf of Cadet's Car Rentals that a Smith v Manchester Corporation (1974) 17 KIR 1 award was the proper approach to the assessment of loss of future earnings in this case.
The defendants appealed to the Court of Appeal, contending that a Smith v Manchester Corporation award should have been made instead of the award for loss of future earnings, alternatively that the use of a multiplier of 19.1 was against the weight of the evidence and wrong in law.
The Court of Appeal (Dame Anita Allen P, Isaacs and Crane-Scott JJA) held that the judge had been correct to make an award for loss of future earnings instead of a Smith v Manchester Corporation award. However, it considered that the correct figure for the multiplicand should have been $19,240.00 instead of $20,000.00 and that applying the multiplier of 19.1 was wrong in principle. Using the UK Government Actuary's Department, Actuarial Tables for use in Personal Injury and Fatal Accident Cases, 7th ed (2011), (“the Ogden Tables”) to derive a multiplier of 4.8461, it quashed the award of $380,000.00 and substituted an award for loss of future earnings of $93,238.96.
Mr Pinder now appeals against the decision of the Court of Appeal to the Judicial Committee of the Privy Council. In summary, he submits that the Court of Appeal erred in law:
In his notice of appeal Mr Pinder asked that the order of the Court of Appeal be set aside and the order of the Chief Justice restored.
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(1) in substituting its award for that of the Chief Justice, in circumstances where there was no basis for disturbing the award below;
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(2) in substituting a multiplicand of $19,240.00;
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(3) in holding that the Chief Justice was wrong in law in applying a multiplier of 19.1;
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(4) in its application and use of the Ogden Tables.
An appellate court will not, in general, interfere with an award of damages unless the award is shown to be the result of an error of law or so inordinately disproportionate as to be plainly wrong. In Flint v Lovell [1935] 1 KB 354 Greer LJ referred (at p 360) to the power of an appellate court to reverse a decision on quantum of damages in the following terms:
“[T]his Court will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
Similarly, in Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 the Board observed (at pp 613–614):
“… before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage ( Flint v Lovell [1935] 1 KB 354, approved by the House of Lords in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601).”
In the courts below and on this appeal the parties have been content that, if an award for loss of future income is to be made (as opposed to a Smith v Manchester Corporation award) it should be assessed on the basis of the Ogden Tables. These actuarial tables are designed to assist in the calculation of lump sum damages for future losses in personal injury and fatal accident cases in the United Kingdom. They provide a multiplier which can be applied to an annual loss in order to produce a capitalised sum, taking into account accelerated receipt, mortality risks and, in relation to claims for loss of earnings and pension, discounts for contingencies other than mortality. In the Supreme Court the Chief Justice did not refer expressly to the Ogden Tables but purported to apply a methodology derived from the Tables. In the Court of Appeal, the President noted that the discount rate in the United Kingdom applied in the Ogden Tables is fixed by the Lord Chancellor pursuant to the Damages Act 1996. (At the date of the trial in these proceedings the discount rate was 2.5%. It was reduced from 2.5% to -0.75% with effect from 20 March 2017.) She considered (at paras 18–19) that the Tables could be a useful guide but cautioned against their wholesale application as if they had the force of law in The Bahamas. She drew attention to the fact that they are based on the yield on Index Linked Government Stock and on the mortality risks and other contingencies relating to the population of the United Kingdom. Similarly, Crane-Scott JA (at paras 91–92) noted that the Ogden Tables were of persuasive authority only in The Bahamas but had, in practice, provided a useful guide to practitioners and judges in arriving at awards for future pecuniary loss.
Neither party to the present appeal has suggested that the use of the Ogden Tables for the quantification of future loss of earnings was inappropriate in this case. Accordingly, the Board, in deciding this appeal, will seek guidance from those Tables. The Board notes, however, that the Tables are intended to reflect the particular conditions prevailing in the United Kingdom which are likely to differ considerably from those in The Bahamas. The courts of The Bahamas may, therefore, wish to consider on some future occasion whether it is appropriate to refer to the Ogden Tables for guidance or whether it may be preferable to seek the assistance of actuarial tables designed to reflect the conditions prevailing in The Bahamas. In this regard the Board draws attention to the observations of Lord Kerr in Scott v Attorney General [2017] UKPC 15 (at paras 25–29) concerning the application in The Bahamas of the United Kingdom Judicial Studies Board Guidelines for the Assessment of General Damages in Personal Injury Cases.
Mrs Wright did, however, submit, in reliance on West India Electric Co Ltd v Roberts [1920] AC 1025 per Lord Buckmaster at p. 1028, that the Court of Appeal had regard to the different cost of living in The Bahamas and was satisfied that the amount awarded was not unduly small. While the President did caution against the wholesale application of the Ogden Tables as if they had the force of law in The Bahamas (at paras 18–19), the Board considers that the Court of Appeal nevertheless purported to apply the Ogden Tables without modification (at paras 39, 104). Moreover, the Board held in Scott v Attorney General that it was for the local courts to...
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