Julia Marie Doyle and Another v Courtney Wallace
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OTTON,LORD JUSTICE CHADWICK,LORD JUSTICE NOURSE |
| Judgment Date | 18 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0618-8 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 June 1998 |
| Docket Number | QBENF 97/0617/1 |
[1998] EWCA Civ J0618-8
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM JUDGMENT OF HH JUDGE YOUNG, SITTING AS A DEPUTY HIGH COURT JUDGE
Royal Courts of Justice
Strand, London, WC2A 21L
Lord Justice Nourse
Lord Justice Otton and
Lord Justice Chadwick
QBENF 97/0617/1
MR J LEIGHTON WILLIAMS QC and MR C GODDARD (instructed by Messrs Barlow Lyde Gilbert, London EC3) appeared on behalf of the Appellant.
MR C PURCHAS QC and MR C NIXON (instructed by Messrs E Edwards Son & Noice, Ilford) appeared on behalf of the Respondent.
Thursday, 18th June 1998
This is an appeal from the judgment of HH Judge Young, sitting as a High Court Judge given on 7 March 1997 whereby he awarded the plaintiff damages of £1,010,162 after an agreed and approved deduction of one-third for contributory negligence, for injuries in a road traffic accident on 7 May 1989.
The plaintiff was then 19 years of age. She sustained moderately severe brain damage which left her cognitively impaired and suffering from poor memory and behavioural changes. She retains full mobility with some difficulty with balance and has all her senses. On full liability the award would have been £1,409,373 plus Court of Protection and Legal and Investment advice costs. There is no appeal from the award of £90,000 for General Damages.
This matter came before us for hearing on Thursday 23 April 1998. During the course of argument we were informed that the appeals from decisions of this Court in Wells v Wells etc. were due to be heard by the House of Lords. Their Lordships have heard the argument but have not yet given their decisions. Some of the issues which their Lordships are to decide also arise in this appeal. I am of the view that we should determine and announce our conclusions on those issues which are not likely to be affected by the appeals to their Lordships' House but defer those that probably are. To that extent both parties are entitled to know what this Court has decided.
Ground 1: Special Damage
The Judge awarded £4,500. The plaintiff's schedule claimed £5,148. The defendant's counter schedule suggested £3,000. At trial the plaintiff's counsel conceded that there should be reductions to the sums claimed for laundry and electricity and suggested figures of £500 and £1,400 respectively. The Judge accepted the reductions and rounded the award down to £4,500. Mr John Leighton-Williams QC on behalf of the Appellants, submitted that a greater deduction should have been made in respect of laundry, electricity, clothing and bedding. I regard the award as eminently justifiable on the evidence. The Judge considered the figures advanced by both sides, the concessions and the argument and arrived at a round figure. I can find no reason to disturb this part of the award.
Ground 2: Past Loss of Earnings
The Judge awarded £38,521. The plaintiff's schedule suggested £67,875. The defendant's schedule £25,000. The plaintiff's primary case for both Past and Future Loss of Earnings was that she would have qualified and been employed as a drama teacher commencing work in 1993 but that until then she would have received a student grant and worked while a student. Alternatively, it was argued that failing qualifications as a teacher she would have obtained clerical or administrative work. On behalf of the plaintiff it was contended that her chances of becoming a teacher were not less than 50%, that her past loss should be assessed on the basis of allowing the plaintiff a 50% chance of becoming a teacher and her loss assessed on the basis of taking a middle figure between earnings as a teacher and earnings in a clerical capacity.
The Judge posed the question:
"Would she have succeeded in obtaining the qualification and would she have got a job?—I take the view that it is 50/50. I also take the view that the best way to reflect that is to adopt the approach suggested by Counsel for the plaintiff. That seems to me to be fair and reasonable and that is the way forward that I propose to go in this case. I have no doubt that whatever she chose to do she would have stuck at it and would have worked. She would not have been a layabout or drop-out and would have continued to work for a significant period of time.…she was going to be a working woman and she would have set out on that course throughout the foreseeable future."
Mr Leighton-Williams submits that the reasoning underlying the award was fundamentally flawed both in fact and in law and the errors underlying the reasoning were perpetuated in the award for Future Loss of Earnings. Moreover, in accepting the plaintiff's Counsel's approach the Judge made assumptions of fact which were too favourable to the plaintiff, alternatively gave too much weight to the plaintiff's hope to teach drama and he misdirected himself in Law. The Judge should have decided what probably would have happened. It was not probable that the plaintiff would have qualified and been employed as a drama teacher. Accordingly, earnings as a drama teacher should have been disregarded. In support, Leading Counsel cited a passage from the speech of Lord Bridge in Hotson v East Berks HA [1987] AC750 at p782.
There is a key distinction between a plaintiff who has to prove on a balance of probabilities that a particular result would have come about and when he needs to prove only that a chance, which may be less than a probability, of achieving that particular result has been lost. Lord Reid in his speech in Davis v Taylor [1974] AC207 at 213 said:
"When the question is whether a certain thing is or is not true—whether a certain event did or did not happen—then the Court must decide one way or the other. There is no question of chance or probability. Either it did or did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened, then it is proved that it did in fact happen".
He continued:
"You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the Law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. sometimes it is virtually 100%: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51% and a probability of 49%"
Thus with matters past, the Court has to determine on the balance of probabilities whether the defendant's act caused the plaintiff's loss, and if the answer is in the affirmative there is full recovery, while if in the negative there is none. In McGregor on Damages, 16th Edition para 379, Dr McGregor states:
"We are in the realm of causation and liability not in the realm of chance and quantification. It is this that explains the decision of the House of Lords against the plaintiff school in Hotson v East Berks AHA."
In that case a hip injury which the plaintiff incurred in a school accident was through negligence not diagnosed by the defendant Authority until 5 days later. Had the correct diagnosis been made immediately, with the consequent appropriate treatment, there remained a 75% risk of the boy's disability developing, but the defendants breach of duty turned that risk into an inevitability. The defendants contended that damages for loss of the 25% of chance of avoiding the disability were not claimable since the plaintiff had not shown that on the balance of probabilities that the negligence had caused the disability. The House of Lords upheld that this contention, exonerating the defendant entirely from liability for the plaintiff's disability, on the basis that its sole cause had been the original accident and that no loss of a chance was caused to the plaintiff by the defendants' negligence. I would respectfully agree with Dr McGregor. Hotson was concerned with causation and liability not with the quantification of chance.
The distinction between what falls within the realm of loss of a chance and what requires proof on the balance of probabilities was considered by this Court in Allied Maples v Simmons and Simmons [1995] 1WLR 1602. In their purchase of certain business and shop properties the plaintiffs were advised by the defendant solicitors. The solicitors had allowed the sale to proceed with the deletion of a warranty by the sellers that no contingent liabilities existed whereas there was a liability on a lease which in due course materialised. Two questions arose in relation to causation and damages. First, if the defendants had properly advised the plaintiffs of the effect of deleting the warranty, would the plaintiffs have taken steps to obtain from the sellers some protection, by way of warranty or otherwise, against this liability? Secondly, would the sellers have been prepared to accede to such a request by the plaintiffs?
Stuart-Smith LJ distinguished between three types of situation. In his first category fell cases in which the defendant's negligence consisted of some positive act or misfeasance and the question of causation was one of historical fact, in which event proof on the balance of probability prevailed. In the second category fell cases in which the defendant's negligence consisted of an omission where causation depended not upon a question of historical fact but upon the answer to the hypothetical question 'what would the plaintiff have done if there had been no negligence?'; here the answer is provided by the application of proof on the balance of probabilities. In the...
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