Evans v Pontypridd Roofing Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE RIX,LORD JUSTICE WARD |
| Judgment Date | 09 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1657 |
| Docket Number | Case No: B3/2000/3429 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2001 |
[2001] EWCA Civ 1657
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PONTYPRIDD COUNTY COURT
HIS HONOUR JUDGE PROSSER
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice May and
Lord Justice Rix
Case No: B3/2000/3429
N Cooke QC and P Rees (instructed by David W Harris for the Claimant)
C Purchas QC and W Featherby (instructed by Morgan Cole for the Defendant)
This is an appeal against parts of the judgment of His Honour Judge Prosser QC in a Pontypridd case heard in Cardiff with judgment delivered in the Newport County Court on the 19 th October 2000. The judge decided issues of quantum in a personal injury case. We do not have a full transcript of the judgment, but there is a fairly full summary note of it prepared, I think, by the defendants' solicitors which the judge has approved. Permission to appeal was given by Sir Murray Stuart-Smith.
The claimant was at the time of the hearing 34 years old. He had been seriously injured in the course of his employment with the defendants as a roofer on 31 st January 1995. Liability was compromised so that the claimant was to receive 85% of a full reward.
The accident occurred when the claimant fell from the roof on which he was working. He suffered injuries in the area of his right arm. These included injuries to his elbow comprising a fracture of the head and radius bone and also injury to his right brachial plexus. His predominant problem following his injury was pain, which has become severe and resulted in muscle wasting. In addition to serious pain in his right arm, he also suffers from headaches and neck pain. He has serious limitation of movement in the cervical spine. Over a period, his condition worsened and the pain was such that a spinal cord stimulator was implanted. His combined symptoms constitute the syndrome known as reflex sympathetic dystrophy.
The claimant's life has been devastated by this injury, one of whose effects is that he suffers from extremely severe depression. Any movement he makes causes him pain. The pain spreads throughout his body. He will never recover. He will never work. The more he moves, the more suffering he gets. He needs help in everything he does. His wife or a carer will always have to help his immobility. The judge said that on a good day a full strip wash would take anything up to an hour. On a bad day it would take twice as long. Unfortunately good days are few and far between. The judge added that he had noticed that throughout the trial the claimant remained motionless. He is in his mid-thirties with a full life expectation. The condition will never improve. The judge considered that the defendants in the presentation of their case had not grasped the full implications of the claimant's disability or pain. The severity of his condition may be gauged from the fact the judge awarded £100,000 as general damages for pain, suffering and loss of amenity and that there is no appeal against this part of the award.
The judge's total award of damages on full liability was £923,710.31. 85% of this was £785,153.76. These figures included interest.
The elements of the award against which the defendants appeal are (a) future loss of earnings, (b) past and future care, and (c) accommodation. The judge's awards for these three elements were (a) future loss of earnings £208,000; (b) past care £80,532,32 plus interest; future care £378,840; and (c) accommodation £16,500.
Future Loss of Earnings.
The claimant's pre-accident earnings were agreed to have been £300 per week. The judge said that the claimant was in good health and regular employment as a roofer and a lorry driver. He was expected to continue as a roofer. There was evidence from an employment expert that, if the claimant had given up as a roofer, there were other opportunities available to him at an income of £261 per week. The judge took this gross amount as the basis for calculating a multiplicand of £13,000 per year. Mr Christopher Purchas QC, on behalf of the defendant appellants, does not now challenge this element of the judge's assessment.
The defendants contended for a multiplier of 15 and the claimants for a multiplier of 19.71. The judge considered that 15 was a little too low and he thought that a multiplier of 16 was appropriate. He thus arrived at his figure of £208,000 for future loss of income. This part of the defendants' appeal is limited to the contention that the multiplier should have been 15, not 16. 9. The summary judgment records the judge as saying this:
“The claimant was a family man and a good worker. I consider that he would have worked until he was 60 years old. I must take into account the area in which the claimant lives, where the unemployment rate is above the national average and that he could have found himself out of work. Other matters were raised, such as the fact that the claimant was a smoker and may suffer ill health and there were chances of accidents and early retirement. I cannot take those factors into account as there is no clear evidence and, therefore, I would be guessing.”
The defendants submit that a full actuarial multiplier would have been 17.76 taken from Ogden Tables. The judge discounted this by slightly less than 10%. The defendants submit that this discount was too little and that the resulting award was too great. In their written submissions they contended that the claimant had had an irregular and poorly remunerated pre-accident employment history. He was in reasonable work at the time of the accident but he had had substantial periods of unemployment; his wages had usually been very low; he had from time to time claimed state benefit on the basis that he was unemployed while he was in fact working; and had from time to time earned money which he had not declared for income tax and national insurance purposes. They submit that he was vulnerable to unemployment, exploitation and low wages. He would have had little protection in the workplace. He was also a heavy smoker, which put the length of his working life at risk. In addition, the nature of his employment made him vulnerable to accidents.
Mr Purchas' oral submission was limited to the contention that the judge's assessment explicitly left out of account the risks of smoking and accidents as a roofer, when he should on the evidence have made allowance for these. Mr Cooke QC, on behalf of the claimant pointed out that the judge based his assessment on a working life to age 60 not 65, and that there was indeed no specific evidence from which the judge might have gauged the risks relied on. Mr Cooke submits that the judge's assessment made a reduction from the actuarial multiplier which was well within the range that was justified by the evidence and that it is not amenable to appeal. I agree and I would dismiss this part of the defendants' appeal.
Care.
The judge said this under the heading “Past Care”:
“As I indicated when outlining generals, the claimant's symptoms are permanent. He will never work again. His only relief is from drugs and psychological support. The claimant knows about his condition. Ian Cast talks of the spread of pain to the whole body and that the claimant is severely disabled. In Mr Cast's opinion, that permanent condition justifies around the clock care. Mrs Evans is described as unique and I consider the claimant does need attendance at night. Whilst this was tested by the defendants' counsel, I consider the claimant wants and needs a chat a night. It was described as important pillow talk and that Mrs Evans is an emotional crutch. The simple act of moving from the chair requires her assistance. There is no doubt that the claimant requires 24 hour care and the evidence is overwhelming.”
Mr Cast is a consultant neurological surgeon who gave evidence.
The judge accepted the evidence of Janet MacLean as to the appropriate rates for professional carers. She is a State Registered Occupational Therapist working for Jacqueline Webb and Co, Rehabilitation Costs Consultants. Her calculations were in two parts. From the date of the accident until 5 th August 1995, they were based on home carer rates at 30 hours a week. From the 6 th August 1995 until the date of trial they were based on residential rates and assuming care provided for a full 24 hour period. The resulting total was £107,390.27, which the judge accepted in preference to figures put forward in a report prepared on behalf of the defendants whose author was not called to give evidence. The judge then reduced this figure by 25% to take account of the fact that the claimant was in fact looked after during this period gratuitously by his devoted wife. The resulting award was £80,532.31. In determining a discount of 25%, the judge referred to two first instance decisions, Nash v. Southmead Health Authority [1993] PIQR Q156 and Fairhurst v. St Helens and Knowsley Health Authority [1995] PIQR Q1. In the first of these, Alliott J made a deduction of 1/3 rd from amounts which would have been paid to professional carers where a grossly impaired boy was cared for by his parents. In the second case, HH Judge David Clark QC made a deduction of 25% where a severely disabled girl was in part looked after by her mother. It is suggested that, if there is a distinction to be drawn between the two authorities, Nash involved the provision of ordinary caring activities and Fairhurst involved the provision of rather more specialist care and attention.
For future care, the judge carried forward his finding that the claimant would require care 24 hours a day...
To continue reading
Request your trial
-
Iqbal v Whipps Cross University NHS Trust
...Conradie's "by the clock" approach was wrong in law and fundamentally flawed, and had been rejected by the Court of Appeal in Evans v. Pontypridd Roofing Limited [2001] EWCA Civ 1657, [2001] P.I.Q.R. Q5. In Evans, the necessary full-time care for the disabled claimant, was entirely provide......
-
Patricia Georgina Grant (widow and executrix of the estate of Douglas Michael Grant, deceased) v The Secretary of State for Transport
...Sunworld Holidays Ltd [2004] EWCA Civ 158, [2004] PIQR Q4, per Brooke LJ at [24]; see also Beesley, per Hamblen J at [25]. 30 In Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1657, [2002] PIQR Q5, at [28], May LJ (with whom Rix and Ward LJJ agreed) endorsed the view that there should be ......
-
Nekeisha Porter v Constantine Porter and Others
...for the proposition that the claim may be based on the loss of earnings by the caregiver. This is also supported by the case of Evans v Pontypridd Roofing Ltd 2001 EWCA Civ 1657 (2001) ALL ER (D) 13 cited in Munkman on Damages for Personal Injuries and Death, eleventh edition at page 114. ......
-
Tinsley v Sarkar
...of care following the approach set out in Housecroft v. Burnett [1986] 1 All ER 332 most recently in Evans v. Pontypridd Roofing Ltd [2001] EWCA Civ 1657, in which Mr Purchas appeared. One of the bases for a deduction is that payment for commercial care is subject to deduction for tax and n......