Charles v Hugh James Jones & Jenkins (A Firm)

Tuesday 16th November, 1999

I will ask Lord Justice Swinton Thomas to give the first judgment.

This is an appeal, with leave, from an order made by His Honour Judge Prosser QC, sitting as a judge of the High Court in Cardiff on 22nd September 1998, when he gave judgment for the claimant in the sum of £185,937.

The sum awarded was in respect of damages for personal injury, arising out of a professional negligence action against solicitors. Included in the award are the following sums which are the subject matter of this appeal:

(1) £20,000 general damages;

(2) £24,120 for loss of earnings between 9th August 1990 and 1st January 1996;

(3) £78,000 for future loss of earnings as from January 1996; and

(4) £25,000 for future care.

On 9th August 1990 the claimant, Mrs Gina Wyn Charles, was a pillion passenger on a motorbicycle being driven by her husband which was involved in a collision with a lorry owned by a French company called STTL. Mr and Mrs Charles suffered serious injuries and they instructed a firm of solicitors, Goldstones of Swansea, to act on their behalf. That firm was subjected to some stringent criticism by the trial judge. On 14th January 1991, Goldstones issued proceedings on behalf of Mrs Charles against STTL in the Swansea County Court. On 16th March 1992 a defence was served which admitted liability. That is an important fact in this case. The action was subject to the automatic directions and the last date for applying for a date to set the action down was 1st July 1993. On 14th May 1993 Goldstones wrote to the solicitors acting for the then defendants accepting an offer to settle the claim for £20,000 if that sum was paid within 21 days. In fact, very fortunately, that money was not paid. On 14th June 1993, 2 ¹/₂ weeks before the action was automatically struck out, Mrs Charles instructed the present defendants, Hugh Jones James & Jenkins to act on her behalf. They received the papers from Goldstones on 24th June 1993, a week before the action was struck out on 1st July 1993. I would certainly, for my part, accept the comment made by Mr Jackson, who acts on behalf of that firm in this appeal, that they were, in the circumstances, unlucky. In fact, neither the claimant's nor the defendants' solicitors appreciated that the action had been struck out under the automatic directions and they continued, to an extent, to prepare for trial as though the action was still alive.

On 15th December 1994 District Judge Molson struck out the claim and on 13th February 1995 His Honour Judge Lewis dismissed the defendants' appeal against that order. As a result, Mrs Charles commenced her proceedings in negligence against the appellants by writ issued on 14th January 1997. The Statement of Claim was served on 31st January. In their defence the appellants admitted liability for negligence in allowing the action to be struck out.

Judge Prosser found, on the assumption that the claimant's claim had not been struck out, that the hearing to assess the damages recoverable by her would have taken place in January 1996, the notional trial date. That is an important finding for the purposes of this appeal and is not challenged.

The judge then had put himself into the position of a judge making an assessment of damages in January 1996 and that is what Judge Prosser did.

The judge had a number of medical reports, and reports from care and employment experts, and he heard evidence from the claimant and other witnesses. Clearly, on the basis of his judgment, he accepted the evidence which was given to him by the claimant as being true, and clearly by implication he considered that the trial judge in 1996 would have reached the same view about her. As always in a personal injury action, the medical reports and the medical evidence are important. I will make selective quotations from the medical reports, although I am afraid I will have to do so at a little length.

In the accident Mrs Charles had sustained a serious injury to her left leg. She was taken to the local hospital in Swindon, near where the accident had occurred.

Mr Downes, a Consultant Orthopaedic Surgeon, reported on the claimant's condition on 21st May 1991

He said on the first page:

"She did not lose consciousness, but was immediately aware of pain in the left leg and of inability to weight bear. It seems that petrol from the motorcycle tank had soaked onto her clothes and onto an open wound on her left leg."

Then under the heading "Present Condition":

"Mrs Charles complained of aching pain in her calf area after weight bearing for approximately 15 minutes, when she had to rest for a similar period before walking any significant further distances. As a consequence of this her walking distance was substantially reduced to less than quarter of a mile. She though there was a degree of weakness in terms of pushing off with the left leg and she was unable to run. She also experienced some difficulty in driving. There was a degree of swelling, of the foot and lower leg distal to the previously injured area."

The doctor then referred to the considerable scarring on the left leg and in the final paragraph of that report he said:

"The prognosis from the functional viewpoint overall, is satisfactory in that I would anticipate gradual improvement in her walking capacity. Similarly, I would expect the degree of local tenderness and sensory impairment to lessen with time, though some residual discomfort, soreness and sensory impairment, are likely to remain permanent. Even if further cosmetic surgery to improve the scar is felt to be necessary, I think it is likely that significant scarring will persist in the long term."

Mr Downes reported again on 18th August 1992. Under "Present Condition" he said:

"She stated that she continued to experience pain in the left calf, chiefly on walking, and her distance was reduced to approximately quarter of a mile. She had had occasional episodes of giving way of the leg when walking. She continued to experience variable swelling of the lower leg, and said at times this could be severe when the tight skin 'felt as though it would burst'.

She remained concerned about the appearance of the scar, avoiding wearing skirts when out of doors. There had it seems, been repeated episodes of superficial breakdown of the skin over the outer aspect of the scar of the left leg. Over the previous year she had developed asthma and had consulted a chest physician for this.

…

Opinion

Overall, I feel there has been relatively little change in the clinical status of Mrs Charles' previously injured left leg. She complains of significant continued discomfort in the leg, and is clearly concerned as to the appearance of the scarred area, longterm. She has had the benefit of a Plastic Surgeon's opinion on potential scar revision, and has been advised that further surgery is not indicated at the present, and unlikely to prove necessary in the future

In view of the lack of improvement in terms of Mrs Charles' symptoms, and walking capacity, I feel that she remains unsuited to work that involved prolonged weight bearing.

The prognosis from the functional viewpoint is a little uncertain in view of her continuing symptoms, though there is no obvious organic cause for the apparent severity of her continuing pain. There has been no significant damage to the adjacent joints, and accordingly, I would not anticipate any serious late complications that would lead to significant deterioration in the function of her leg."

Mr Jackson, on behalf of the appellant, places emphasis in the submissions that he makes on that paragraph and also on a covering letter written by Mr Downes to Messrs Goldstones (the respondents then solicitors) dated 28th August 1992. In that letter Mr Downes said:

"It is clear that Mrs Charles has a substantial cosmetic disfigurement in her previous injured left leg which will remain permanent. Her other symptoms are however entirely of a subjective nature, without clear organic cause being evident for their apparent severity. Whether this represents a developing anxiety neurosis in relation to her accident and continuing symptoms must be conjectural.

I felt I should draw this to your attention as medical opinions for the defendants may well do so."

Mr Downes' next report is dated 3rd May 1994. Under "Present Condition":

"…she continues to experience constant pain at the site of the previous impact injury, on the outer side of the left lower leg, which seemed to spread deeply into the leg itself. She commented on a constant though variable swelling. The pain was worse on walking and she estimated her walking distance as being approximately ¹/₄ mile, using one stick in her right hand. There was periodic breakdown of the outer aspect of the lateral scar, with discharge then healing, this tended to occur in a cyclical fashion, the leg being more painful in times of...