Kevin Frederick Finnis v James Caulfield T/a and Another
| Jurisdiction | England & Wales |
| Judge | His Honour Judge S P Grenfell |
| Judgment Date | 24 October 2002 |
| Neutral Citation | [2002] EWHC 3223 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ0004527 |
| Date | 24 October 2002 |
[2002] EWHC 3223 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
His Honour Judge S P Grenfell
Case No: HQ0004527
Mr J Grace QC and Mr M Mylonas (instructed by McMillan Williams) for the claimant
Mr R Davies QC and Mr C Brown (instructed by Barlow Lyde & Gilbert) for the defendant
Hearing dates : 11—18 June and 24 th October 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
His Honour Judge Grenfell:
On the 20 th July 1997 the claimant, Kevin Frederick Finnis, was severely injured in a motor cycle accident for which full liability has been admitted. I am now concerned with the assessment of his damages.
His was the lead motorcycle when the defendant's car turned into his path, causing him to be somersaulted into the car, displacing his helmet so that he landed on his head in the road. He sustained multiple life threatening injuries. The most serious residual effects are the frontal lobe syndrome and partial loss of sight and visual acuity in the right eye.
He was then aged 29, married to Lisa with a young child, Joshua, born 30 th October 199He was a highly skilled flooring craftsman. It is his case that he was on the verge of a breakthrough in terms of increasing his business potential and turnover. In the event, it is common ground that by reason of his disability he can no longer work in the commercial market place; and that his only possibility for employment into the foreseeable future is to work in a supported environment. The major issue, therefore, centres around what his earning capacity was in fact at the time of his accident and what it would have been into the future but for the accident. To this is added the issue whether he has any residual earning capacity.
Whilst there is some difference between the parties as to the amount of general damages for pain, suffering and loss of amenity, there is common ground as to the basis for, and the approach to, this part of the award, the only exception being as to whether it should include an element to cover loss of congenial employment.
Although the base costs of gratuitous care, and of commercial care, if found to be appropriate, have been agreed, there remain issues as to the level of discount that should be applied to the costs of gratuitous care and as to whether, and if so how, possible future costs of commercial care should be taken into account. This latter issue is dependent on the issue whether Kevin Finnis' wife may not always be around to care for him. The most obvious risk, now recognised albeit to different degrees, is to their relationship by reason of his change in personality. There are also issues as to whether any claim in respect of inability to do work about the house and to maintain the car should be taken into account, particular bearing in mind the amount of time he is said to have devoted to remunerated work before the accident.
The claim for miscellaneous items and for the Court of Protection costs have been agreed. There are various other elements, such as multipliers and base care costs that have been agreed on the basis of the expert evidence. Insofar as I need to approve those elements that have been agreed, because the claimant is a patient, I do so, because each agreement is soundly based in the evidence.
Returning to the issues surrounding loss of earning capacity, they include how to assess the amount of cash income that was not covered in the pre-accident VAT returns and whether the claim in respect of the loss of such cash income should be allowable in law by reason of its reliance on evidence which encompasses tax evasion. There is a relatively small difference between the accountancy experts' computation of the pre-accident invoiced income, which I am invited to resolve with a figure somewhere between their two results.
There is a substantial issue as to how I should approach the claim that Kevin Finnis was on the brink of moving from labour only subcontracting into the more lucrative supply of materials and labour subcontracting (or 'supply and fit'); that ultimately his business would have expanded into a company employing and managing labour to the extent of becoming a main contractor in his own right, thus increasing his opportunities for increased turnover and profit. Various assumptions have been made in the accountancy evidence relied on by the claimant which are fundamentally challenged on behalf of the defendant. Final submissions, however, clarified the proper approach to the assessment of both past and future loss of earning capacity, insofar as it is based on a claim in respect of earnings over and above those which can be established as his preaccident income. It has to be based on the assessment and valuation of lost chances in accordance with the well known principles set out in Mallett v McMonagle [1970] AC 166 refined by Allied Maples v Simmons and Simmons [1995] 1 WLR 1602. On that basis, the question arises as to whether it is appropriate to identify any, and if so what, multiplicand and multiplier without treating a mere future chance as a certainty.
Similarly, it is recognised by both parties that the assessment of the future claim for care, insofar as it is based on the chance that commercial rates may become applicable, has to be based on the valuation of a future chance. Again, the same question arises as to how this should be quantified, whether by multiplicand and multiplier or by a lump sum.
The law
It is sometimes erroneously thought that all findings of fact on which a claim for past loss is based should be made on the balance of probabilities, namely to consider whether a particular fact was more likely than not to have occurred and then to treat it as a certainty, whereas if it was less likely to have occurred to ignore it completely. Although Mallett v McMonagle was a Fatal Accident Act case, the principle stated by Lord Diplock is in logic applicable to ordinary personal injury claims. He said at p176:
"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."
In Allied Maples v Simmons and Simmons Stuart-Smith LJ contrasted the distinction between proving whether a past fact occurred and quantifying an injured claimant's loss based on whether particular facts might have occurred:
"What has to be proved to establish a causal link between the negligence of the defendants and the loss sustained by the plaintiffs depends in the first instance on whether the negligence consists of some positive act or misfeasance, or an omission or non-feasance. In the former case, the question of causation is one of historical fact. The court has to determine on the balance of probability whether the defendant's act, for example the careless driving, caused the plaintiff's loss consisting of his broken leg. Once established on balance of probability, that fact is taken as true and the plaintiff recovers his damage in full. There is no discount because the judge considers that the balance is only just tipped in favour of the plaintiff; and the plaintiff gets nothing if he fails to establish that it is more likely than not that the accident resulted in the injury.
Questions of quantification of the plaintiff's loss, however, may depend upon future uncertain events. For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted. It is trite law that these questions are not decided on a balance of probability, but rather on the court's assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiff's employer."
In terms of the instant case, the claimant has to prove on the balance of probabilities what his immediate pre-accident income was. No one has suggested that for the period up to trial and for a substantial period into the future Kevin Finnis would have earned less than that sum. Put in terms of the 'Diplock' test, the chances of his continuing to earn at least to the level of his immediate pre-accident income are reasonably assessed at 100%. The chance of his working on the 'Skyline' contract starting from the day following the date of the accident it is reasonable to assess at 100%. The extent to which he would have been able to maintain the higher rewards associated with supply and fit subcontract working, once that contract was completed, would, however, have been dependent on many factors.
In a relatively straightforward claim where the continuing loss is constant, the future chances of a claimant being able to maintain that level of earnings into the future is taken into account by the multiplicand multiplier approach, where the multiplier is adjusted...
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