Eagle v Chambers (No 2)

JurisdictionEngland & Wales
JudgeLord Justice Waller,Lord Justice Buxton,Lord Justice Scott Baker
Judgment Date29 July 2004
Neutral Citation[2004] EWCA Civ 1033
Docket NumberCase No: B3/2004/0085+0085C
CourtCourt of Appeal (Civil Division)
Date29 July 2004

[2004] EWCA Civ 1033

[2003] EWHC 3135 (QB)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM The Honourable Mr Justice Cooke

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before :

Lord Justice Waller

Lord Justice Buxton and

Lord Justice Scott Baker

Case No: B3/2004/0085+0085C

Between :
Karen Janet Eagle (By Her Step-Father and Litigation Friend, Ernest Edward Giles)
Appellant
and
Garth Maynard Chambers
Respondent

Mr de Wilde QC and Mr Nicholas Leviseur (instructed by Mr Duffield of Chamberlins) for the Appellant

Mr Faulks QC and Mr Angus Piper (instructed by Mr Richard Hyde of Davies Lavery) for the Respondent

Lord Justice Waller

Lord Justice Waller

1

On 22nd June 1989 the claimant/Appellant (the claimant) was knocked down by a car driven by the defendant/Respondent (the defendant) while walking down the middle of the road. At a trial which did not take place until November 2002 the defendant was held liable for the accident with the claimant being held responsible in contributory negligence as to 60%. That apportionment was varied by the Court of Appeal in July 2003 to 40%. As a result of the accident the claimant was very severely injured suffering serious brain damage. Following a trial in December 2003 and in accordance with a reserved judgement handed down on 19th December 2003 and a shorter extempore judgment of the same date Cooke J ordered the defendant to pay damages in the sum £1,499,268.13, and he refused permission to appeal.

2

The most significant aspect of the damages award was the judge's assessment that £66,000 was the appropriate sum for the annual cost of the future Care Regime needed by the claimant. To that figure he applied a multiplier of 18.5 representing his assessment of the claimant's life expectation taking into account also the period that the claimant would spend in a rehabilitation unit. This figure involved accepting the expert evidence of Tessa Gough who gave evidence for the defendant to that of Maggie Sargent. It was assessed on the basis that the claimant's needs were for a continuation with the carers provided as at the time of trial by Social Services through an agency Care Watch but importantly also on the basis that (1) the regime would be enhanced; (2) it should be funded privately and (3) a saving could be made because of some likely improvement in the claimant as a result of the rehabilitation course, resulting in her needs at night being met by the less expensive sleep-in carer rather than an awake carer.

3

He also found that with such a care regime, and in particular because there would be a need for a room for the sleep-in carer, the flat also supplied by Social Services would no longer be suitable, and that further accommodation would need to be purchased leading to an award of £215,265.

4

Those advising the claimant applied for permission to appeal to the Court of Appeal. No attempt at this stage was made to disturb the judge's assessment of the care regime needed for the claimant. One Ground (Ground 11) asserted that £2000 should have been added to the £66,000 on the basis that a concession had been made by Tessa Gough that she should have included certain items in the Appendix to her report (Appendix D) which the judge had taken as the basis of his calculation. The other grounds sought to attack the judge's findings on 14 or possibly 15 discrete issues.

5

Potter LJ granted permission on 12 grounds including Ground 11 on the basis that the grounds seemed to raise issues of principle.

6

Those advising the defendant sought to respond by raising three grounds on which the assessment made by the judge should be reduced. They involved making an attack on the key finding that the need was for a privately funded care regime. These grounds sought to uphold the judge's conclusion that the present regime of carers would continue, but attacked the finding that the claimant needed that regime privately funded, and attacked the judge's finding that there was any necessity to move accommodation. The argument which they wished to put was that there was simply no need to disturb the present regime other than by a limited enhancement for which the defendant should pay. They were thus seeking to adopt Tessa Gough's primary position as costed in her Appendix A, which if successful would dramatically reduce the damages as assessed by the judge on the key issue from £1,354,500, to about £420,000, and would further reduce the award by £215,265.00, the sum awarded for the change in accommodation. The respondents also attacked a finding by the judge that they should be responsible for the costs of a rehabilitation course at the Kemsley Unit which, if successful, would have reduced the damages by a figure in the region of £150,000. Mance LJ granted the defendant permission to appeal on those grounds.

7

This led those advising the claimant to look again at the judge's approach to his assessment of the amount to be awarded for care, and his assessment of damages generally. Following this review a skeleton argument was served in which notice was given of an intention to attempt to amend the notice of appeal to assert that the figure of £2000 in the original ground 11 to be added to the £66,000 should be increased to something in excess of £22,873. This would have increased the judge's award by some £400,000. From the skeleton it was clear that in part (as with the figure of £2000) this aspect, covered by a proposed Ground 11A to the notice of appeal, was to be argued by reference to points which could be made on the evidence, but which it was said the judge had failed to take into account, but in large measure by reference to points on Appendix D to Tessa Gough's report which had not been explored at the trial in any way at all. The skeleton also indicated that an application would be made to amend to challenge the award of general damages assessed by the judge at £165,000.

8

At the commencement of the hearing of the appeal we had to deal with applications to amend the notice of appeal by the claimant as well as applications to renew grounds on which permission had been refused by Potter LJ. During this exercise the process it became apparent that those advising the defendant now appreciated that they had to concede Ground 1 of the appeal which related to the fact that the judge had deducted from past earnings a sum received in respect of income support, but Mr Faulks QC indicated that his clients might wish to allege that there had been a failure to take into account receipt of other benefits in the calculation of future losses for which they would need leave to amend their respondents' notice. He also indicated that he resisted Ground 11A, but the interchange with the court indicated that his own attitude to arguing the major ground in his respondents' notice, i.e. that the Appendix A calculation should be adopted, could be affected by the court's approach to Ground 11A.

9

In any event we granted permission to the Appellant to amend and raise Ground 11A and we granted permission to raise certain grounds for which permission had been refused, Grounds 8 and 10, on the basis that they raised the same point of principle as Ground 9. We refused the application to renew Ground 7 on the basis that there was no evidence on which costs of speech therapy could be assessed, and no issue of principle was raised; and we refused permission in relation to Ground 16, relating to additional telephone calls to be made by the care team, on the basis that it was impossible to demonstrate any loss having regard to the lesser use of telephone which the claimant was likely to make and because no issue of principle was raised. We refused permission to amend to challenge the award of general damages because the figure was within the range which a judge could award and no issue of principle was raised.

10

It is not necessary to go further into the details of the arguments which took place at this stage, but it is important to identify the issues which ultimately had to be considered on the appeal. It will I hope assist in that exercise if I do that by categories.

THE ISSUES IDENTIFIED

The costs of 12 weeks assessment at the Kemsley Unit for rehabilitation, and 9 months thereafter at the unit which the judge assessed as likely to occur

11

This issue raised by the defendant in the respondent's notice was whether having been faced with a fait accompli at the beginning of the trial, of the claimant having been sent to Kemsley to be assessed, it was right for them to have to pay by way of damages for that assessment and for the projected 9 months of rehabilitation.

The cost of a care regime and accommodation

12

This issue (as will by now be apparent) was of most significance in monetary terms. The first sub-issue (raised by the defendant in the respondent's notice) was whether the judge was right in finding that the claimant needed a privately funded regime as opposed to a top up to the regime being provided by Social Services, the latter being costed in Appendix A of Tessa Gough's report. This sub-issue involved two aspects, first whether the only requirement in addition to that which Social Security was already providing was a manager together with care for a four hour gap and second, whether, if this regime continued, that would make it unnecessary to consider whether the appellant would only need a sleep-in carer at night, the factor that influenced the judge in holding that there was a need for different accommodation. The second sub-issue was whether, if the judge was right that a privately funded care regime was necessary, he was right to take Miss Gough's Appendix D as he did with adjustments...

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