Langford v Hebran and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD |
| Judgment Date | 15 March 2001 |
| Neutral Citation | [2001] EWCA Civ 361 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2000/0077 |
| Date | 15 March 2001 |
[2001] EWCA Civ 361
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (The Hon. Mr Justice Klevan).
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Tuckey and
Mr Justice Curtis
Case No: B3/2000/0077
Mr J.L. Williams Q.C. and Mr D. Wicks (instructed by Messrs Berrymans Lace Mawer of Southampton for the Appellant)
Mr D. Foskett Q.C. and Mr M. Fullerton (instructed by Messrs George H. Coles & Co. of Hove for the Respondent)
This is the judgment of the court on the Defendants' appeal from the judgment of Klevan J. given on 15th October 1999 awarding the Claimant, Robert Langford, damages of £423,133 for personal injuries sustained in a road traffic accident on 5th December 1994 for which liability was admitted. The award included £57,379 plus interest for past and £326,368 for future loss of earnings and the appeal is confined to these amounts. Essentially the Appellant's criticism is that the Judge over-valued the Claimant's loss attributable to his prospective career as a kick-boxer and made other assumptions in his favour which were not supported by the evidence.
The claimant was born on 29 April 1967 so he was 27 at the time of the accident. Since leaving technical college at the age of 17 he had worked as a hod carrier interspersed with long periods of unemployment, but at the time of the accident he had been working as a trainee bricklayer for four or five months. He also had a very successful career as an amateur kick-boxer culminating in his becoming the World light-middleweight champion in February 1994 after which he turned professional. He then won his only professional fight before the accident. His second fight did not take place because his opponent got cold feet at the weigh-in. By this time the Claimant's case was that he was holding weekly training classes about thirty times a year.
As a result of the accident the Claimant suffered a whiplash injury to his neck, an injury to his left shoulder and other minor injuries. Persistent symptoms associated with the whiplash injury and the injury to his left shoulder prevented him from resuming his training as a kick-boxer and necessitated physiotherapy and exploratory surgery of the left shoulder. The agreed medical evidence at trial dealt with the Complainant's residual disability and the effect of the accident on his pre-accident activities as follows :
". There is no objective abnormality on clinical examination of the (left) shoulder at this stage and the function of his shoulder in day to day activities is near normal.
We are agreed that he would have difficulty repetitively lifting bricks above shoulder height or repetitively lifting concrete blocks as a result of his shoulder injury and therefore might be prevented from pursuing a bricklaying career
He should probably not return to his pre-accident employment of hod carrying.
The mild abnormal sensory symptoms in his left forearm do not trouble him very much and do not cause any significant pain or any physical disability
We see no reason why he should not be able to take part in kickboxing at a lower level than before the accident. We understand that if punching with his left arm causes some pain that he may be limited in his effectiveness. Furthermore the interruption of his kick boxing training following the accident has interfered with his planned career in kick boxing at the highest level."
The Judge awarded £19,000 for pain, suffering and loss of amenity.
The claim for loss of earnings was based on a report from a forensic accountant, Mr. Faull, and evidence from a number of witnesses as to the Claimant's skills as a kick-boxer and how his career might have developed but for the accident.
Mr. Faull first calculated what he called the basic claim. This assumed that the Claimant's fighting career would last until he was 3During that time he would work for twenty-six weeks as a bricklayer and have five fights (three in the UK and two in the US) each year. When his fighting career was over he would work full time as a bricklayer until he was 60. He would continue to hold thirty training classes a year until he was 60.
Mr. Faull then calculated four alternative scenarios, based upon escalating success in the Claimant's fighting career. The first assumed that he would win at least one national or European title which would enhance his income from training after his fighting career. The second assumed that after gaining such a title he would move to the U.S. where he would win state or other titles but not become world champion. The third assumed that, having achieved that success, he would become world champion for one year. Both these scenarios would bring enhanced earnings from fights. The fourth assumed that after becoming world champion for two years the Claimant would remain in the U.S. working as a professional instructor earning US$350,000 per annum. The other three scenarios assumed the same career after his fighting career as the basic claim.
For each of the four alternative scenarios Mr. Faull calculated the extent to which the Claimant's earnings would exceed the basic claim. Finally, he calculated the amount to be deducted from the claim however it was assessed to reflect the Claimant's earnings or earning capacity since the accident.
The Claimant invited the Judge to award the basic claim plus a percentage of each of the four alternatives to reflect the lost chance of earning in these ways based upon the approach approved by this court in Doyle-v-Wallace [1998] PIQR Q146.
The Judge essentially accepted the Claimant's case. He took the basic claim as his starting point without question. After rehearsing the evidence he had heard about the Claimant's prospects as a kick-boxer, which he described as being "all one way", he concluded that Mr Faull's alternative scenarios were "fair and reasonable and in accordance with the evidence". In the language of Doyle there was a "significant chance" that each of them would occur. He then evaluated the chances as follows: 1 : 20%; 2 : 40%; 3 : 30%; 4 : 10%. The basic claim after taking account of the Claimant's earnings or earning capacity was: pre-trial loss: £28,974; future loss : £101,651. The additional amounts calculated by the judge for scenarios 1 – 4 were: pre-trial loss: £28,405; future loss £224,719. Hence, the total amounts awarded were £57,379 for past loss and £326,370 for future loss, a grand total of £383,749.
Mr. Leighton Williams, QC for the Appellants, (who did not appear below), submits that the Judge was wrong to take the basic claim as his starting point. Mr. Faull's assumption that the Claimant would work for twenty six weeks as a bricklayer during his fighting career and then full-time until the age of 60 was unjustified given the Claimant's poor work record and the fact that he had only worked for a short time before the accident as a trainee bricklayer. Mr. Faull assumed that the Claimant would earn £40 per week from training and receive sponsorship of £500 per fight, but there was little or no evidence to support these figures. The evidence was that after the accident the Claimant worked as a car valet earning £80 gross for a sixteen-hour week. His earning capacity was conceded to be twice this amount but there was still an issue about which the Judge did not make any finding. The agreed medical evidence was that the Claimant was capable of working in a wide range of manual jobs. Finally the Judge did not discount the basic claim to reflect the fact that kickboxing and working on building sites carried risks of injury which could have affected either or both pursuits.
Having considered the references in the evidence relied on by Counsel for both parties we do not accept the criticisms on points of detail made by Mr. Leighton Williams. By assuming that the Claimant would work as a bricklayer for only twenty six weeks a year during his fighting career Mr. Faull fairly reflected the Claimant's past work record which could partly be explained by the building recession in the early 1990s. There was some evidence to support the figures taken by Mr. Faull. Although the medical evidence indicated that the Appellant was capable of doing other manual jobs the accident had made him unfit to work as a hod carrier or bricklayer so he was unable to do the only manual work he knew. In those circumstances we think the concession which attributed an earning capacity to the appellant of twice his actual earnings was reasonable.
The multiplier of 17.9 taken from the Ogden tables was for those engaged in risky occupations. This adequately reflected the risks involved in working on a building site. There was an issue before the judge as to the risk of injury in kickboxing. One witness said it was very high; two said it was not. As an insurance risk it is apparently rated as being less hazardous than golf. The judge made no specific finding about this although inferentially it seems to me that he must have accepted the latter evidence. It follows that we do not think that any reduction in the multiplier was called for. Having said this however, the basic claim did make a number of general assumptions in favour of the Claimant which had to be borne in mind when considering the additional amount which the Judge added to this claim to reflect loss of opportunity. These are that the Claimant would have continued to work as a bricklayer although he was only a trainee at the time of the accident and that he would have done so full-time until the age of 60...
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