Morey v Woodfield (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE HARMAN,LORD JUSTICE DAVIES |
| Judgment Date | 13 February 1962 |
| Judgment citation (vLex) | [1962] EWCA Civ J0213-2 |
| Court | Court of Appeal |
| Date | 13 February 1962 |
[1962] EWCA Civ J0213-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Holroyd Pearce
Lord Justice Harman and
Lord Justice Davies
MR MONTAGUE L. BERRYMAN, Q. C. and MR BARRY W. CHEDLOW (instructed by Mr John Holt) appeared as Counsel on behalf of the Appellant (Defendant).
MR MARTIN JUKES, Q. C. and MR F. B. PURCHAS (instructed by Messrs Chalton Hubbard & Co.) appeared as Counsel on behalf of the Respondent (Plaintiff).
The Defendant appeals from a judgment for £50,000 damages entered by Mr Justice Glyn-Jones on the verdict of a Jury.
The infant Plaintiff, a girl just under 12 years of age, suffered spinal injury in a motor car collision caused bythe negligence of the Defendant. Liability was admitted. The Jury had before them only the evidence of the girl's mother and of Dr Guttman, Director of the Spinal Injuries Centre, Stoke Mandeville. The Defendant called no evidence. He was content to accept the evidence of the doctor as that of one of the world's leading experts on spinal injuries.
The girl's spine was fractured at the neck. The crushing of the spinal cord produced permanent quadriplegia, that is to say, paralysis and loss of sensation in the whole body from the neck downwards. Paraplegia, namely, paralysis only from the waist downwards, is less rare.
There is no hope that her quadriplegic condition will improve. For the whole of her life she will require full-time attention, and, at times, skilled nursing attention. Her brain and intelligence, however, are unimpaired. She can now sit up in a chair without corsets or spinal appliances. By what the doctor called trick movements, that is to say, with certain appliances, she can feed herself to a limited extent, using a fork or a spoon fixed to calipers. She is even able to type ten words a minute. And she can do a certain amount of school work. She has, of course, no control of bladder or bowels. For the former she has a permanent catheter, which is changed regularly twice a week, and also at least once a day she has what the mother described as a bladder wash. For the latter she has daily an artificially stimulated evacuation which on a good day takes half to three-quarters of an hour. If this goes on too long she perspires and feels dizzy and has to rest in the middle of it. When this has gone well she can do lessons for two periods of three-quarters of an hour with an interval for rest between, but, if it has gone badly, she is too worn out to do anything. She has to be moved fairly frequently to avoid body sores and allay the perspiration which besets her when she is too long in one position. In the night she has tobe moved every three hours.
The doctor hoped that it might be possible for her to become a teacher in languages, but he pointed out that "one has to consider the increased fatigue in these patients". By this I understand him to mean that the physical side of life is so difficult and exhausting that there is not left a large margin of energy for taking on any task.
The girl suffers relatively little pain, but the evidence shows that she suffers a great amount of discomfort. Constant care has to be taken that she does not get bladder infection which may reach the kidneys. If she gets a cold it creates difficulties, since she can neither blow her nose nor sneeze nor cough.
It is not easy to estimate the expectation of life of quadriplegics. The doctor said: "It is quite impossible to say precisely how long she will live. Having regard to the many survivals of this kind and for many years, she can live many, many years. I think the longest survival is a lady who came to us rather late from Australia with practically the same level. She had an injury in 1937". Statistics show "that the younger a person is the better the chances of survival for many years." It is difficult on that evidence to form a clear view of her expectation of life. While paraplegics injured in the first World War are still living, at the Star and Garter Home at Richmond, the longest surviving quadriplegic has lived 24 years up to date. But medical science has of late no doubt been improving the quadriplegics' chances of survival, since on the evidence a varying armoury of anti-biotics is the chief defence against infections, which are the main danger.
The girl's nature is courageous and happy. The constant round of toil from others which her needs entail is borne by an equally courageous and devoted mother and by somebody described as a "housekeeper". The mother's normal life has
been completely submerged by care of her daughter. It must be doubtful how long she can endure physically or mentally to keep up the pace of her present ministrations.
It is conceded that the case must be regarded as one where the girl needs constant care day and night from persons, not necessarily skilled nurses, but possessed of some nursing competence. There seem to be occasions, however, (for example, the changing of the catheter) when skilled nursing is needed. At present the mother is doing too large a share because, according to her, the girl is just at an age when she is self-conscious about her physical functions, and does not like them to be performed by anyone but her mother. But no doubt she will have to overcome this and let an employee do some at least of the work which the mother is doing. It is not disputed that the only reasonable way of planning over the years is for two persons fairly fully employed to minister to the girl. The Defendant admits that she should not be asked to live in an institution, which might be a more economic solution to her plight. Thus her life will be very expensive since probably two persons will be employed to nurse her.
This Court is always loth to interfere, with an award of damages by a Judge alone, especially where the assessment is a matter on which opinions may reasonably differ. When the appeal is from the verdict of a jury, this Court is even more reluctant. "Where the verdict is that of a jury", said Lord Wright in Davies v. Powell Duffryn Associated Collieries, Limited, 1942 Appeal Cases, page 601, "it will only be set aside if the Appellate Court is satisfied that the verdict on damages is such that it is out of all proportion to the circumstances of the case". That form of words has been used in other reported cases. Lord Esher, Master of the Rolls, in Praed v. Graham, 24 Queen's Bench Division, page 53, at page 55 said that the Court cannot set aside the verdict merely because it is largerthan they themselves would have given, but only if the damages are so excessive that no twelve men could reasonably have given them.
Lord Wright in Mechanical and General Inventions and Lehwess v. Austin, 1935 Appeal Cases, page 346, at page 375 (adopting some valuable observations of Lord Halsbury in Metropolitan Railway v. Wright, 11 Appeal Cases, page 152, at page 156) said: "Thus the question in truth is not whether the verdict appears to the appellate court to be right but whether it is such as to show that the jury have failed to perform their duty". Lord Wright's words were adopted by this Court in Bocock v. Enfield Rolling Mills, 1954, 1 Weekly Law Reports, page 1303.
Nor can damages be treated as excessive merely because they are large. "Excess implies some standard which has been exceeded": per Lord Wright in Mechanical and General Inventions and Lehwess v. Austin at page 377.
What standard then is to be used in measuring excess? Lord Justice Morris in Scott v. Musial, 1959, 2 Queen's Bench, page 429, at page 438, pointed out that in cases which are comparable but which are decided by different judges, a certain pattern or level of awards of damages may emerge. "If however", he continued, "an award of a jury does not conform to such a pattern that is not to prove that the jury is necessarily wrong. The views of juries may form a valuable corrective to the views of judges. The jury will not necessarily have knowledge of any pattern or level which judges have thought to be appropriate and the jury are not bound by any such pattern or level". Nevertheless, as he pointed out on page 439, it is inevitable that the Court of Appeal, as part of the process of deciding when a verdict is out of all proportion to the facts of the case, will formulate their own views as to the proper amount. And in formulating a view, the Court "has in mind a general idea of the damages which are being awarded day by day by the Courts incases of this kind": (ib., per Lord Justice Ormerod at pages 442 and 443).
Mr Berryman keeps open the point that that case was wrongly decided. This Court must, he contends, start with the assumption that the pattern of amounts awarded by Judges and this Court is correct and must regard any large excess over that as being unreasonable or out of all proportion to the injury. I cannot accept that argument. On an appeal from a Judge (which is technically a re-hearing) the duty of the Court of Appeal is to correct judgments that are so unduly divergent from other judicial decisions as to fall within the category of being wholly erroneous. On an appeal against a Jury's verdict the Court has no power to correct. It has a supervisory duty to set aside verdicts that are so faulty that they should not be allowed to stand. Before doing so, the Court must be satisfied (excepting cases of misdirection and mistake) that no reasonable Jury could have come to such a verdict. It is the standard of the reasonable Jury which must be applied. That standard is not necessarily the standard of judicial decisions although no doubt the judicial standard will clearly be the starting point and have some effect in any consideration of whether the verdict is such that no twelve reasonable men could have arrived at it.
Some approximate standard there must be,...
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