Mulholland v Mitchell

JurisdictionUK Non-devolved
Judgment Date1971
CourtHouse of Lords
[HOUSE OF LORDS] MULHOLLAND AND ANOTHER APPELLANTS AND MITCHELL RESPONDENT 1970 Oct. 15, 19; Nov. 25 Lord Hodson, Viscount Dilhorne, Lord Wilberforce, Lord Pearson and Lord Diplock

Damages - Appeal on quantum - Assessment on wrong basis - Change of circumstances - Admission of fresh evidence. - Evidence - Fresh evidence - Damages - Personal injury - Assessment of post-trial expenses - Basis of award falsified shortly after trial - Assumption that incapacitated plaintiff would be nursed at home for some time at cost of £1,312 a year - Contemplated cost of nursing home in event of possible future move for benefit of wife and child £903 a year - Damages assessed accordingly - Plaintiff having to be moved to nursing home shortly after trial for own benefit at cost of £1,827 a year - Whether fresh evidence admissible - Discretion of Court of Appeal - Review of exercise of by House of Lords.

As a result of a car accident due to the admitted negligence of the defendants the plaintiff was permanently incapacitated both mentally and physically. At the trial, the only issue being as to damages, it was contended on his behalf that he would shortly return home from hospital to be nursed by his wife there with professional assistance for the rest of his life, his expectation of life being undiminished and estimated at 35 years. The defendants contended that that would place too great a strain on his wife and child and that he would sooner or later have to go to a National Health hospital or a nursing home, and that the correct multiplier would be five. An agreed figure of £903 a year was before the court in respect of the contemplated cost of a nursing home, and the judge accepted that the cost of nursing the plaintiff at home would be £1,312 a year. He awarded the plaintiff damages under the head of post-trial expenses of £10,496, i.e., £1,312 multiplied by eight. After the trial, the plaintiff returned home, but within a few weeks it became clear that it was impossible for him to continue there due to the deleterious effect on his own health, and he was moved to the only suitable nursing home the cost of which was £1,827 a year, the nursing home contemplated at the trial being no longer in existence. He appealed generally against the judge's award of damages, and applied for leave to adduce fresh evidence as to the matters which had occurred since the trial. The Court of Appeal granted him leave.

On appeal by the defendants: —

Held, dismissing the appeal, that precise rules could not be formulated for the exercise by the Court of Appeal of its discretion to admit fresh evidence as to matters occurring after the date of trial, the question being largely one of discretion and degree; that the principle that there should be finality in litigation should be borne in mind and evidence could not be admitted of every change which might have occurred since trial; but that, in the exceptional circumstances of the present case where it might be said that basic assumptions at the trial had been falsified the Court of Appeal could not be said to have exercised its discretion wrongly.

Murphy v. Stone-Wallwork (Charlton) Ltd. [1969] 1 W.L.R. 1023; [1969] 2 All E.R. 949, H.L.(E.) applied.

Curwen v. James [1963] 1 W.L.R. 748; [1963] 2 All E.R. 619, C.A. and Jenkins v. Richard Thomas & Baldwins Ltd. [1966] 1 W.L.R. 476; [1966] 2 All E.R. 15, C.A. considered.

Decision of the Court of Appeal affirmed.

The following cases are referred to in their Lordships' opinions:

Brown v. Dean [1910] A.C. 373, H.L.(E.).

Curwen v. James [1963] 1 W.L.R. 748; [1963] 2 All E.R. 619, C.A.

Evans v. Bartlam [1937] A.C. 473; [1937] 2 All E.R. 646, H.L.(E.).

Jenkins v. Richard Thomas & Baldwins Ltd. [1966] 1 W.L.R. 476; [1966] 2 All E.R. 15, C.A.

Ladd v. Marshall [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745, C.A.

Murphy v. Stone-Wallwork (Charlton) Ltd. [1969] 1 W.L.R. 1023; [1969] 2 All E.R. 949, H.L.(E.).

The following additional cases were cited in argument:

Attorney-General v. Birmingham, Tame and Rea District Drainage Board [1912] A.C. 788, H.L.(E.).

Bradberry, In re; National Provincial Bank Ltd. v. Bradberry [1943] Ch. 35; [1942] 2 All E.R. 629.

Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd. v. Pontypridd Waterworks Co. [1903] A.C. 426, H.L.(E.).

Edwards v. Society of Graphical and Allied Trades [1970] 3 W.L.R. 713; [1970] 3 All E.R. 689, C.A.

Osenton (Charles) & Co. v. Johnston [1942] A.C. 130; [1941] 2 All E.R. 245, H.L.(E.).

APPEAL from the Court of Appeal (Winn and Karminski L.JJ. and Sir Gordon Willmer).

This was an appeal by leave of the House of Lords given on April 7, 1970, by the defendants, Patricia Thelma Mulholland and John Anthony Mulholland, from an order of the Court of Appeal made on February 9, 1970, granting the plaintiff, John Herbert Mitchell (by his wife, Hazel Doreen Mitchell, as next friend), leave to adduce fresh evidence upon the hearing by the Court of Appeal of his appeal from the judgment of Nield J. given on June 18, 1969.

By his writ dated March 2, 1966, and served on July 21, 1966, the plaintiff claimed damages against the defendants for personal injuries suffered and losses and expenses incurred as a result of an accident on or about June 25, 1965, through the negligent driving, management and/or control of a motor vehicle owned by the first defendant and driven by her servant or agent the second defendant. By his statement of claim, served with the writ on July 21, 1966, the plaintiff pleaded that he had suffered a severe head injury, dislocation of the right acromio-clavicular joint and left sterno-clavicular joint, a fracture of the neck of the left femur which was much comminuted and a number of lacerations; that as a result of the head injury he had in July, 1965, developed epileptic fits which had cleared in August but had left him with a left-sided hemi-paresis, causing weakness of the left side of the face, the left arm and the left leg; that the head injury, which probably included brain stem damage, had caused severe organic mental impairment; that the hip fracture had been immobilised by internal fixation in August, 1965, but that the pin had come out of the femoral head; that he had been transferred to Knowle [Mental] Hospital on December 23, 1965, because his behaviour had become disturbed; that the injury to the hip had caused severe disability but that an operation was not possible because he was too spastic as a result of the head injury; that there was a continuing and severe degree of intellectual deterioration and memory impairment with personality change; that he needed help with washing and dressing; and that he was permanently incapacitated from returning to any gainful employment. By their defence, the defendants admitted negligence, but not the injuries, loss and damage alleged to have been sustained.

Subsequently, it was ordered that the plaintiff's wife be appointed his next friend and that the proceedings be continued accordingly.

In his judgment, Nield J. said:

“Apparently the plaintiff ‘sits around the ward all day taking no interest in anything, not reading or watching television. It is almost three years since his injury, and there can be no hope of any mental improvement, so that, even if his physical condition changed, he would not be employable …. He is still incapable of standing or walking alone. He needs support on both sides to progress …. He still has double vision, though this is not so bad as it was.’ The evidence indicated that that was capable of correction.

“Mrs. Mitchell, who courageously faces much hardship, adds other features of her husband's plight. As she put it, her husband cannot do much except talk, and he forgets what has been talked about.

Indeed, his real memory stops at the time when he was 21 years of age, and he is greatly puzzled and worried by this. His wife has to help him when he goes to the lavatory; his nights are disturbed two or three times when he needs a bottle in which to urinate; and she agrees that he cannot stand unless supported on both sides, and he spends most of the time in a wheel-chair.

“Two special problems arise. The first was whether the plaintiff should remain in hospital or return to his home. The medical view was that he would find more contentment at home, but that he must live on the ground floor. This point has been met. The defendants have paid a sum to the plaintiff on account of the damages, and of this about £7,000 has been used to buy a bungalow. The second problem was whether or not the plaintiff could be properly looked after at home. The answer to that is yes, at any rate for some time, provided he has substantial part-time nursing attendance ….

“The third head [of damage] is post-trial expenses; that is to say, the sum to be awarded for nursing services. I take the basic figure of £1,312 a year for nursing at home. The plaintiff's claim, put at its highest, is that this would continue for 35 years. The defendants submit that five years' purchase is the appropriate multiplier. There will undoubtedly be imposed upon the plaintiff's wife a great strain, and it may be that the plaintiff will have to go to a nursing home, where at present the cost would be £903 a year, or it might be, of course, that he would become a patient under National Health arrangements, paying nothing. In my view, the multiplier here should be eight, so that the figure under this head is £10,496.”

The total damages awarded amounted to £45,757, including special damages of £1,191.

The plaintiff appealed generally against that award. By his notice of appeal, dated August 28, 1969, he contended, inter...

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