McCamley v Cammell Laird Shipbuilders Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR |
| Judgment Date | 17 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0717-2 |
| Docket Number | 89/0718 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 1989 |
[1989] EWCA Civ J0717-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(MR JUSTICE CAULFIELD)
Royal Courts of Justice
Lord Justice O'Connor
Lord Justice Croom-Johnson
and
Lord Justice Balcombe
89/0718
MR R. LIVESEY, Q.C., and MR N.B.D. GILMOUR, instructed by Messrs Davis Campbell & Co. (Liverpool), appeared for the Appellants (Defendants).
MR R. CLEGG, Q.C., and MR C.B. TETLOW, instructed by Messrs Brian Thompson & Partners (Manchester), appeared for the Respondent (Plaintiff).
This is the judgment of the court, it has been prepared jointly by Croom-Johnson, L.J. and myself.
This is an appeal by the defendants against an award of £387,790.00 damages for personal injuries made in favour of the plaintiff by Caulfield, J. on 3rd March 1988.
The plaintiff sustained very serious injuries in the course of his employment by the defendants on 6th December 1983. On that day the defendants were launching an oil rig. The plaintiff was on board as a member of the sailor gang. A nylon rope snapped, caught the plaintiff and cut off his right arm just below the elbow and his right leg just below the knee. The repair operations resulted in an amputation of the arm 10 cms above the elbow and of the leg 14 cms above the knee. Liability was admitted.
Included in the award were the following assessments:
| Pain, suffering and loss of amenity | … | £85,000 |
| Past care | … | £25,000 |
| Past loss of earnings | … | £11,766 |
| Future loss of earnings | … | £61,600 |
The defendants contend that each of these assessments was excessive.
The learned judge refused to deduct a sum of £46,630 paid by the defendants to the plaintiff after they had been paid that sum by insurers under a personal accident policy. The defendants contend that he was wrong in law in so doing.
The defendants seek leave to introduce a new matter and invite us to order that the plaintiff give credit for sums received and receivable in respect of attendance and mobility allowances following on the decision of the House of Lords in Hodgson -v- Trapp [1988] 3 A.E.R. 870 overruling Bowker -v- Rose [1978] 122 S.J. 147.
THE AWARD OF £85,000
Both parties accept that in March 1988 £85,000 would have been an appropriate assessment for an average case of tetraplegia following the guidance given by this court in Housecroft -v- Burnett [1986] 1 A.E.R. 332. In a nutshell the defendants submit that grievous as the plaintiff's condition is, it is nothing like as serious as that suffered by a tetraplegic. The foundation for this submission is that the award is conventional in the sense that the "loss" which the court is seeking to compensate has no monetary value. In this case we are in the category of injuries of the utmost severity. The court in making its assessment has to keep in mind such comparable awards as it can find. The learned judge, who was very experienced in this field, said"…during my experience of the Bench and the Bar I have not come across an injury of this pattern." We add quite simply "Nor have we". The judge was asked to compare the case with that of a tetraplegic and invited to conclude that such a comparison pointed to a lower award than that appropriate for a tetraplegic. At first sight, remembering that, unlike the tetraplegic, the plaintiff has the use of one arm and one leg and that his bowel, bladder and sexual functions are unimpaired, this submission seemed to us to be well founded.
The plaintiff was aged 48 at the time of the accident, nearly 53 at the date of trial. At first it was hoped that it would be possible for him to wear prostheses on the right arm and the right leg. After a period of trial it was found that he could not tolerate an artificial limb on the stump of the right arm because the strapping exacerbated a problem in his cervical spine. As far as the leg is concerned he can wear a false limb but it causes him great pain and he can only tolerate it for up to four hours. His walking with the false leg is very limited, of the order of 50 yards. He cannot put it on or take it off himself. Owing to the loss of body area he suffers from excessive sweating. As a result of his injuries he became depressed and bad tempered. The learned judge noted all these matters and he saw and heard the plaintiff and his wife give evidence. He records that it was obvious that the plaintiff was in considerable pain in the witness box giving evidence, the plaintiff cannot cut up food, he cannot get in or out of a bath and if he falls over, as he does from time to time, he cannot pick himself up. He has developed backache and the judge accepted the evidence of Mr Jackson that it would get worse. The judge said at page 4 of his judgment:
"I think it is not possible to compare injuries of a certain category with another category and then seek to find the correct figure. I have approached ray figure for pain and suffering, not on the basis of any specific figure put forward by either learned Counsel but on the basis which I think is right of trying to assess the pain which this man has and has had and will always have and the suffering that he has."
We do not think that the learned judge was departing from the principle that the assessment of damages under this head must be fitted into the spectrum of awards. Once it is shown that the judge has not erred in principle then this court does not interfere with the assessment unless it is plainly too much or too little. In this case the loss of amenity is unique and it is associated with a great deal of pain and suffering. It is stating the obvious to say that the plaintiff's condition is entirely different to that of a tetraplegic. Looking at the case on paper we would have assessed the award under this head at somewhat less than the £85,000 fixed by the learned judge, but we have not seen or heard the plaintiff in the witness box. In the result we find we are unable to say that the award is so high that this court should interfere. We would dismiss the appeal against it.
THE AWARD OF £25,000 FOR PAST CARE
From the time that the plaintiff came home after the accident until the date of trial in March 1988 he had been looked after by his wife and the extended family including a member who is a nurse. The plaintiff's case was based on the report and evidence of Mrs Watkins. Mrs Watkins carried out a time and motion study of the McCamley household. For the first seven weeks after he came home he needed a very great deal of attention which Mrs Watkins costed out at a total of £4,578. Thereafter, she said that he needed six and a half hours attention a day and she costed that out at £2.50p an hour weekdays and £3.12p at weekends, making a total of £6,090.00 per annum. So the plaintiff claimed some £29,000.00 for past care. The learned judge accepted this evidence and then said at page 7 of his judgment:
"Of course, when one is rewarding those who love us for what they do for us outside their normal relationships, one cannot apply a strict commercial rate, as was explained by Lord Justice O'Connor in [Housecroft -v- Burnett]…
"What I have done is to look at the rates which Mrs. Watkins says today is certainly six hours, being the minimum that would be needed for extra work done by whoever is looking after Mr. McCamley, and I think the proper figure, without going into any more detail, for past care, is the sum of £25,000."
The defendants say that the learned judge has applied the full commercial rate and that we should interfere and reduce it, perhaps by half. The judge has in fact reduced the amount suggested by Mrs Watkins by some £4,000. We confess that we regard the judge's assessment as very high. On the other hand there is no doubt that, certainly in the early stages, a very great burden was put upon Mrs McCamley. This head of damage as we pointed out in Housecroft presents difficulties and is very much a matter for the trial judge. If the full commercial rate is applied then we think that this court can interfere unless it be one of those cases where the member of the family providing the care has given up gainful employment to the value of more than the commercial rate. The present case is near the bone but the learned judge has made some reduction and we do not feel that it would be right to interfere. We would dismiss the appeal against this head of the award.
LOSS OF EARNINGS PAST AND FUTURE
The learned judge held that but for the accident the plaintiff would have remained in the full time employment of Cammell Laird down to the date of trial. The amount of the award based on that finding was an agreed figure derived from the average of the earnings of three men in the sailor gang who had worked for Cammell Laird throughout the period. The award for the future was based on a finding that the plaintiff would have remained in full time employment either with Cammell Laird or elsewhere at earnings not less than the current rate derived from the average earnings of the three men to whom we have referred. The judge also held that if he had lost his job with Cammell Laird he would have gained employment elsewhere at not less than the Cammell Laird rate of earnings.
The defendants attacked the learned judge's finding on two grounds, namely the track record of the plaintiff in employment and the position at Cammell Laird. We will consider the latter first. At the date of the accident Cammell Laird employed 25 men in their sailor gang including the foreman. By the date of trial only three of them, plus the foreman,...
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