Hunt v Severs
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAUGHTON |
| Judgment Date | 12 May 1993 |
| Judgment citation (vLex) | [1993] EWCA Civ J0512-1 |
| Docket Number | No. QBENF 92/0695/C |
| Court | Court of Appeal (Civil Division) |
| Date | 12 May 1993 |
[1993] EWCA Civ J0512-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Deputy Judge Latham Q.C.)
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Staughton and Lord Justice Waite
No. QBENF 92/0695/C
MR. J. CROWLEY Q.C. and MR. J. WOODS (instructed by Messrs. Edwards Son and Noice, London E6 4JP) appeared on behalf of the Appellants.
MR. H. McGREGOR Q.C. and MR. R. DOGGETT (instructed by Messrs. Wheelers, Ash Vale) appeared in person.
(As revised)
THE MASTER OF THE ROLLSThis is the judgment of the court.
The plaintiff in this action is a woman now aged just under 30 who was catastrophically injured in a motor cycle accident in September 1985 when she was riding as a pillion passenger. The defendant was the driver of the motor cycle. He is now the plaintiff's husband.
In the action the plaintiff claimed damages for her injuries. There was no contest on liability, but there were very live issues between the parties on the quantum of damages. A hearing on these issues was held over 4 days in April 1992 before Mr David Latham QC sitting as a deputy judge of the Queen's Bench Division. In a reserved judgment delivered on 15 April 1992 he awarded the plaintiff damages and interest amounting in total to £617,004.
That award has led to the raising of three issues in this court. In the order in which we have found it convenient to hear them, these were (in brief) :
(1)an appeal by the defendant against the judge's award to the plaintiff of sums representing travelling expenses and the value of services rendered and to be rendered to the plaintiff by the defendant;
(2)an application by the plaintiff to adduce new evidence;
(3)a cross-appeal by the plaintiff against a number of decisions made by the judge in reaching his overall award.
The background facts
The judge gave a helpful summary of events between the accident and the hearing before him. We shall confine ourselves to the brief outline necessary for present purposes.
In the accident the plaintiff fractured her seventh and eighth thoracic vertebrae, with complete paralysis below that level. Immediate surgery was prevented by a number of complications, but in April 1986 an attempt was successfully made to relieve her pain and in June 1986 an operation was performed to fuse her spine. Most unfortunately, the operation caused a paralysis of her bowel and further complications of great seriousness requiring further operation.
She was discharged from hospital in 1987, but suffered from spasms which restricted her ability to manage her catheter and could be controlled only by drugs, delivered by a pump inserted into her chest wall in March 1987.
From March 1987 until the autumn of 1988 the plaintiff lived with the defendant in a small flat in Mitcham. With the daily help of a district nurse, she was able to live a relatively independent life.
In September 1988 the pump became infected and needed replacement. While awaiting this procedure the plaintiff suffered a further, and very rare misfortune. When standing in a frame as part of her therapy she fractured the heads of both her femurs. This was not at once apparent, but during the night she fell into a coma. Rushed into hospital, she was put (for the third time) in intensive care. Despite that she suffered brain damage from which, despite the most expert and attentive care, her recovery was very slow. She could not return home until March 1989. A consultant psychologist found evidence of moderate to mild cognitive impairment. The judge found that she had as a result lost any realistic prospect of remunerative employment. He also found that her appreciation of the steps necessary to keep herself healthy, in particular so as to avoid pressure sores, was impaired.
From March 1989 until November 1990 the plaintiff again lived with the defendant in the Mitcham flat. She now required the assistance of a home help and a daily carer as well as the district nurse, all of whose services were provided by the local authority.
In November 1990 the plaintiff and the defendant married. They spent their honeymoon in Florida. On their return the plaintiff developed a pressure sore, partly as a result of her failure to appreciate how to look after herself. In August 1991 she was re-admitted to hospital and the sore was excised.
By this time the parties had bought a bungalow in Hertfordshire. The plaintiff was keen to move in. She was discharged from hospital in September 1991 and did so. But her discharge was premature. Her skin broke down, and she returned to hospital, where she had to lie in bed waiting for the sores to heal or to be excised. She was unable to sit in a wheelchair or enjoy even the limited activity which that would have allowed. Such was her condition at the date of trial in April 1992. It was, however, hoped that she would shortly be able to return home and resume her life with the defendant, probably following surgery to excise the sores.
The medical witnesses for the parties were agreed that the plaintiff's life expectancy was some 25 years. They were also at one in regarding her case as, in terms of the complications she had suffered, the worst they had ever come across. The judge paid tribute to the plaintiff's fortitude and cheerfulness in the face of repeated setbacks, and it was hoped that she would, when the sores had been dealt with, recover a substantial measure of independence. But the judge held that he could not "when considering damages, whether for pain, suffering and loss of amenity or future care requirements, leave out of account the fact that she has been liable to develop complications from time to time in the past" (judgment, page 5F). He further held that "her history has been so bedevilled by problems that I must reflect the real risks of her having further additional difficulties, perhaps at present unforeseen" (judgment, page 19D).
The defendant's appeal
The judge awarded the plaintiff as damages £4,429 for travelling expenses incurred by the defendant before the hearing, £17,000 for services rendered by the defendant in caring for the plaintiff before the hearing and £60,000 for services to be rendered by the defendant in caring for the plaintiff in future. In his appeal the defendant did not challenge the quantum of these sums, but their recoverability in principle. No claim, it was argued, would lie for the value of services voluntarily rendered (as these were and would be) by a defendant tortfeasor. We judge this argument to raise a question of considerable practical importance, and also considerable difficulty.
Both parties took as their starting point the Court of Appeal decision in Donnelly v Joyce [1974] QB 454. In that case the trial judge awarded damages to an infant plaintiff for wages which his mother had lost by giving up her job to look after him. The defendant appealed, suggesting that the position might have been different had the mother been joined as a plaintiff, but that since she had not the plaintiff could not sue to make good her loss, being under no legal or moral obligation to make any payment to her. The court roundly rejected these contentions. The mother could not have been properly joined, since she had no cause of action against the tortfeasor. It was immaterial whether the plaintiff had a legal or a moral obligation to pay his mother. Most importantly, the plaintiff was not suing to make good his mother's loss:
"We do not agree with the proposition, inherent in Mr Hamilton's submission, that the plaintiff's claim, in circumstances such as the present, is properly to be regarded as being, to use his phrase, "in relation to someone else's loss," merely because someone else had provided to, or for the benefit of, the plaintiff —the injured person —the money, or the services to be valued as money, to provide for needs of the plaintiff directly caused by the defendant's wrongdoing. The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages —for the purpose of the ascertainment of the amount of his loss —is the proper and reasonable cost of supplying those needs. That, in our judgment, is the key to the problem. So far as the defendant is concerned, the loss is not someone else's loss. It is the plaintiff's loss.
Hence it does not matter, so far as the defendant's liability to the plaintiff is concerned, whether the needs have been supplied by the plaintiff out of his own pocket or by a charitable contribution to him from some other person whom we shall call 'the provider'; it does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do. The question of legal liability to reimburse the...
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