Hardwick v Hudson and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke,Mr Justice Colman |
| Judgment Date | 18 May 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0518-14 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 1999 |
| Docket Number | CCRTF 1998/0651/2 |
[1999] EWCA Civ J0518-14
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANSFIELD COUNTY COURT
(HIS HONOUR JUDGE MACHIN)
Royal Courts of Justice
Strand
London WC2
Lord Justice Brooke
Mr Justice Colman
CCRTF 1998/0651/2
MR W PHILLIPS (Instructed by Tracy Barlow, Messrs Furniss & Co, Worksop) appeared on behalf of the Appellant
MR J MATTHEWS (Instructed by Messrs Actons, Nottingham) appeared on behalf of the Respondent
Tuesday, 18 May 1999
This is an appeal by the plaintiff and a cross-appeal by the defendant from a judgment of Judge Machin at the Mansfield County Court on 28th April 1998 when he directed that judgment should be entered for the plaintiff for the sum of £54,093.30 inclusive of interest in this personal injuries action arising out of a road traffic accident on 7th August 1990. Liability was admitted, and the judge was concerned only with quantum.
The judge found that the plaintiff had suffered a whiplash injury to his neck, a soft tissue injury to his lower back and bruising to both ankles. He suffered no bony injury. He suffered persistent pain and stiffness in his neck which radiated down both arms, with altered sensation in his right arm and hand, His shoulders remained stiff and painful, and he had a plastic shell fitted to his back. He had developed stiffness and aching in all his joints. A full recovery was unlikely, and as a result of his accident his activity in his profession as a motor mechanic was effectively brought to a halt.
In addition to the agreed medical reports, the judge received oral evidence from the plaintiff and his wife. The plaintiff was born in July 1940, so that he was 50 when the accident happened and nearly 58 at the date of the trial.
The judge made an award of £19,500 by way of general damages for pain, suffering and loss of amenity, which is the subject of the defendants' cross-appeal. He said that nobody doubted that the plaintiff's injury was of a highly debilitating nature. It had very seriously interfered with his carrying out of his employment and, more importantly, with the amenity of his life. The plaintiff had graphically described his reaction to his condition by saying that it was as if he had reached a cross roads in his life. The judge found that he was a man who had quite clearly greatly enjoyed his various amenities in life and that his enjoyment of those amenities had been seriously diminished both for the present and for the future.
After hearing the plaintiff and his wife, the judge said that he particularly had in mind the plaintiff's gardening abilities. He said he had no doubt that but for the accident the plaintiff would have expected to spend the greater part of his leisure time both in the garden and in the house. His wife had said "Our home is our life" and the judge found that it was a very substantial part of their lives that they were able consistently and persistently to improve and enjoy their home by engaging in physical activity around the garden and the house in a way which was no longer open to the plaintiff. He now had to employ a gardener to do a very great deal of the work he used to do in the garden.
It was for these reasons that the judge held that the plaintiff was entitled to recover a substantial figure by way of general damages under the head of pain and suffering which he assessed at £19,500.
So far as the balance of the plaintiff's claim is concerned, the judge appears to have assessed the non-interest element of it in the sum of £21,634 made up as follows:
| £ | ||
| Cost of employing a mechanic | 9,298 | |
| Cost of employing a gardener: past | 5,535 | |
| future 5 x £780 | 3.900 | |
| Cost of replacing DIY services: past | 4,930 | |
| future: 5 x £500 | 2,500 | |
| Miscellaneous items | 471 | |
| Miscellaneous items | 471 | |
| £26,634 |
Most of these sums were based on agreed figures. The following items are in issue on the plaintiff's appeal:
(i) The sum awarded for the cost of employing a mechanic;
(ii) The failure to include a sum in respect of his wife's unpaid services to the business until 31st October 1993;
(iii) The multiplier of 5 for future losses.
At the time of his accident the plaintiff was running a garage business in equal partnership with Mr Hannington. Mr Hannington was mainly involved in buying and selling cars, and the plaintiff was responsible for the MOT tests and repair side of the business. The judge faced a difficulty in assessing the proper compensation to the plaintiff for his losses in relation to his business income, because the business did increasingly well after the accident. For the year ending 30th April 1991 his half share of the profit was £26,546, and for the year ending 31st October 1994 the profit of the business (which he now shared with his wife) had increased to nearly £96,007.
The plaintiff was away from the business completely between 7th August and 15th October 1990, and between 8th March and 7th October 1991. When he went back to work in October 1991 he reduced his hours of work to an average of 51.5 hours per week, and was involved much more in administration and in the running of the garage. The judge found that he would probably have given up working as a mechanic in any event by the end of July 1996, and that he was not entitled to recover for future loss of earnings as a mechanic thereafter. There is no appeal against this part of his decision.
In assessing the plaintiff's claim for loss in relation to his capacity to earn income from his business as a motor mechanic, the judge decided to adopt the approach of the defendant's accountant. He had adopted the plaintiff's accountant's figures for half the net cost of a skilled replacement mechanic at £9,161 up to 31st October 1993, and half the net cost of an unskilled replacement mechanic at £4,452 between 1st November 1993 and 31st July 1996, making a total of £13,613, but had then deducted £4,316, being half the net cost of an adult male administrative clerk during the whole of the period when the plaintiff was at work between the date of his accident and 7th July 1996. The resulting total was £9,298. The claim was broken up in this way because the plaintiff accepted that in the later period he would have performed less of the work of a car mechanic following Mr Hannington's retirement, since administrative duties would have taken up more of his time, and he would have been likely to have taken on an unskilled mechanic to assist him.
The defendant's accountant said that although the business had in fact received a benefit from the employment of the replacement mechanic, there was insufficient information available to measure the extent by which sales had increased as a result of this appointment. He had therefore suggested an alternative approach, which the judge considered to be reasonable, of looking at the way the business would have performed if the plaintiff had not had his accident. In order for sales to increase as they did, he considered it reasonable to assume that the plaintiff would have needed to devote all his time to mechanical and MOT work, as the replacement mechanic did, and if he had done this, it would have been necessary to employ an administrative clerk to carry out the administrative duties that the plaintiff performed himself before the accident. Since the business did not have to employ such a clerk in the events that happened (since the plaintiff did the work himself) this represented a saving to the business of the net cost of an administrative clerk for eight hours per week which had to be set off against the net cost of the replacement mechanic. Half the net cost is adopted in each case for the purpose of valuing the plaintiff's claim, representing the expense and saving respectively to the plaintiff as a 50% owner of the business (see Kent v British Railways Board (1995) 4 PIQR Q42).
Before the accident the plaintiff's wife undertook book-keeping duties for the business one or two days each week. She also had a part-time job as an executive officer for the local health authority. She had given up this job on 1st April 1990, four months before her husband's accident, in order to have more free time. After her husband's accident she worked about 20 hours extra each week to help him cover the managerial duties. The plaintiff made a claim in this respect for the period between 7th August 1990 and 31st October 1993 when she became a full-time partner in the business.
The judge refused to compensate the plaintiff for what he described as a claim for gratuitous cover made on behalf of his wife. He took the view that any loss that may have been sustained in this respect was a pure economic loss sustained by a third party and was not recoverable, just as the loss sustained by the plaintiff's business partner was not recoverable.
As to the multiplier, it appears to have been common ground at the trial that the appropriate multiplier for future losses between the ages of 58 and 65 was 5. The judge adopted this figure of 5, without explaining his reasons. Mr Matthews has told us that this did not represent a sudden cut-off at the age of 65, but was consistent with his argument to the judge that if the plaintiff had not been injured, he would have been likely over time to have used the services of outside contractors to an increasing extent. This would have been consistent with his advancing age, and with the improvement in his financial state as his business prospered. The plaintiff had been holding out for a multiplier of 7.
There are therefore four...
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