Flora v Wakom (Heathrow) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Brooke |
| Judgment Date | 28 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1103 |
| Docket Number | Case No: A2/2005/2889 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2006 |
[2006] EWCA Civ 1103
Sir Mark Potter President of The Family Division
Lord Justice Brooke Vice-President, Court of Appeal (Civil Division) and
Lord Justice Moore-Bick
Case No: A2/2005/2889
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Sir Michael Turner
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Pooles QC and Oliver Ticciati (instructed by Messrs Beachcroft Wansbroughs) for the Appellant
Robert Glancy QC and Robert Weir (instructed by Messrs Irwin Mitchell) for the Respondent
Lord Justice Brooke
This is an appeal by the defendants from an order of Sir Michael Turner, sitting as a High Court judge, on 7 th December 2005, whereby he dismissed their application to strike out 11 paragraphs of the claimant's statement of case and to exclude the evidence of a particular expert witness. The appeal raises an important point on the construction of s 2(8) and (9) of the Damages Act 1996 ("the 1996 Act").
These two sub-sections, together with ss 2A and 2B, were substituted for s 2 of the original Act with effect from 1 st April 2005 (see Courts Act 2003, s 100 and SI 2005 No 901) . The section as originally enacted gave the court power to make an order for periodical payments in a personal injuries case provided that the parties consented to the making of such an order. Section 2(1), as substituted, provides:
"2(1) A court awarding damages for future pecuniary loss in respect of personal injury –
(a) may order that the damages are wholly or partly to take the form of periodical payments, and
(b) shall consider whether to make that order."
In other words, the court is obliged in every personal injury case involving a claim for damages for future pecuniary loss to consider whether to make such an order. This is why the present appeal has an importance transcending the significance of the dispute between the present parties, which is concerned with the consequences of a very serious workplace accident. On 13 th May 2002 the 50-year old claimant fell 35 feet from a ramp. His annual loss of earnings has been calculated at just under £12,000 and his annual need for care has been valued at between £18,000 and £27,000. Liability has been admitted, and only the amount of compensation, and the form of the order for compensation, is in issue.
The dispute centres round the interpretation of s 2(8) and (9) of the 1996 Act:
"(8) An order for periodical payments shall be treated as providing for the amount of payments to vary by reference to the retail prices index (within the meaning of section 833(2) of the Income and Corporation Taxes Act 1988) at such times, and in such manner, as may be determined by or in accordance with Civil Procedure Rules.
(9) But an order for periodical payments may include provision –
(a) disapplying subsection (8), or
(b) modifying the effect of subsection (8) ."
The claimant maintains that sub-section (8) identifies the default position, and that a court may make the orders identified in sub-section (9) whenever it appears just to do so. The defendants, on the other hand, maintain that sub-section (8) provides for the order a court will ordinarily make, and sub-section (9) may only be triggered in exceptional circumstances. It is common ground that so far as cases involving severe injuries are concerned there is nothing particularly exceptional about the present case. The claimant's injuries have deprived him of the ability to work, and he has to rely on others to support his daily needs, but this is a common feature of many cases of this type.
The parts of his statement of case which the defendants wish to strike out are concerned to identify the reasons why he contends that a wage-related index such as the Average Earnings Index ("AEI") would be more suitable than the Retail Price Index ("RPI") as the mechanism for varying the sums payable under the periodical payments order. In support of his case he wishes to rely on the expert (Dr Victoria Wass) whose evidence the defendant seeks to exclude. He wishes to argue that the latter index is not a reliable measure of wage inflation, and because the court will be largely concerned with assessing compensation for future loss of earnings (which are of necessity wage-related) and the cost of future care (which is largely, if not entirely, wage dependent), he would not receive full compensation through a section 2 order linked to the RPI given that wage inflation has historically outstripped RPI inflation, and that it is legitimate, he says, to refer to the past as a guide to what the future may bring. It was conceded for the purposes of the defendant's application that Dr Wass's evidence was capable of demonstrating that in future there would or might be a shortfall between the actual or likely cost of providing for his needs throughout his lifetime and the amount he would receive under a periodical payments order linked to the RPI.
On the present appeal it is not our job to express any views about the merits of his case in this respect. If this appeal is dismissed it will proceed to trial, and it will be for the trial judge to make appropriate findings on the evidence before him or her. Sir Michael Turner, who has immense experience in this field of litigation, expressed the view when refusing permission to appeal that an appeal at this interlocutory stage would not enable this court to give the definitive guidance which was plainly required. Latham LJ, however, with whom May LJ agreed, decided to grant permission to appeal after being told that the relationship between s 2(8) and 2(9) was an issue of importance which was creating concern to courts all round the country. He considered that there was sufficient material already before the court to enable it to make an early determination on the issue of construction without having to await the consideration of detailed arguments based on the respective merits of the two indices in the present context.
The primary submission of Mr Pooles QC, who appeared for the appellants, was that the language of the two sub-sections was clear and that there was no need for us to look at Hansard as an aid to interpretation. If, contrary to this submission, we found any ambiguity in the words used by Parliament, we should consider the extracts from the debate in the House of Lords on the committee and report stages and on the third reading of the Bill, and these would help us to resolve any ambiguity in his client's favour. Mr Glancy QC, who appeared for the respondents, submitted that the language was quite clear – although in an opposite sense to that contended for by Mr Pooles – and that in those circumstances evidence from Hansard was inadmissible. We read the extracts to which Mr Pooles referred us without ruling one way or another in relation to the rival submissions.
9. The House of Lords has made it clear that reference to statements made in Parliament about the meaning or effect of a particular clause in a Bill is only permissible for the purpose of construing the equivalent section (when enacted) if three conditions are all satisfied. Those conditions were first identified by Lord Browne-Wilkinson in Pepper v Hart [1993] AC 594, and are clearly set out by Lord Bingham in his speech in R v Secretary of State for Transport, the Environment and the Regions ex p Spath Holme Ltd [2001] 2 AC 349, 391. In that case he and other members of the House made it clear that these conditions should be strictly insisted upon (see pp 392D, 408C and 413G) . The first of these conditions is that such reference was permissible only where legislation was ambiguous or obscure, or led to an absurdity.
In my judgment this condition is not satisfied in the present case. If a periodical payments order does not identify on its face the manner in which the amount of the payments is to vary (in order to maintain their real value) then s 2(8) prescribes that it is to be treated as providing for what is set out in that sub-section unless the order contains provision of a type identified in s 2(9) . There is nothing in the language of these sub-sections to suggest that the power to make provision such as identified in s 2(9) may only be triggered in an exceptional case (whatever may be the meaning of that phrase) . Incidentally, it is interesting to see that the same neutrality is apparent in CPR 41.8(1) (d) which simply provides:
"41.8(1) Where the court awards damages in the form of periodical payments, the order must specify –
(d) that the amount of the payments shall vary annually by reference to the retail price index, unless the court orders otherwise under section 2(9) of the 1996 Act."
Mr Pooles referred us to a passage in the speech of Lord Carswell in Harding v Wealands [2006] UKHL 32 at [81], but there is nothing in that speech, or in the speeches of the other members of the House in that case, to suggest that the strict conditions laid down in Pepper v Hart and ex p Spath Holme have been relaxed. Lord Carswell perceived "sufficient possible ambiguity" in the Harding case to justify resort to Hansard as a confirmatory aid, a perception not shared by the other members of the House.
My belief that it is illegitimate in this case to rely on what was said by a minister at an advanced stage of the progress of the Bill through the House of Lords is fortified by a passage in the speech of Lord Hoffmann in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 at [40]:
"I am not sure that it is sufficiently understood...
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