Murrell v Healy

JurisdictionEngland & Wales
Judgment Date05 April 2001
Neutral Citation[2001] EWCA Civ 486
Date05 April 2001
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B3/2000/2856

[2001] EWCA Civ 486




Her Honour Judge Coates

Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Waller and

Lord Justice Dyson

Case No: B3/2000/2856

Healy & Anr

Mr C Taylor (instructed by Richard Thorn & Co for the Appellant)

Mr IAshford-Thom (instructed by Messrs Barlow Lyde & Gilbert for the Respondent)


This is an appeal from Her Honour Judge Coates who assessed damages in the following sums in relation to an injury which Mr Murrell suffered in a road accident on 29 th November 1995. The judge awarded £25,000 general damages; £1,000 for psychiatric treatment; and special damages of £25,000 loss of earnings, and other items for care etc at £4,114. The relevant background to the issues that arise on this appeal is as follows.


During 1995, the appellant Mr Murrell was involved in two car accidents. The first was on 22 nd May and the second was on 29 th November 1995. In relation to the first accident he was already pursuing a claim, and indeed had obtained medical reports, before the second accident occurred. In relation to the first accident a settlement was reached under which (1) he was paid £58,500; (2) CRU payments were made; and (3) Mr Murrell's costs of those proceedings were paid.


It would seem that although those defending the first claim became aware of the second accident before finally concluding the settlement, the aim of Mr Murrell and his advisers, once the second accident had occurred, was to settle the first claim as quickly as possible. No further medical examination took place prior to the settlement, so that the defence insurers on the first accident did not appreciate the full extent of any injury from the second accident before settling. Indeed, on the evidence of one file note recording what was said by the solicitor acting for Mr Murrell during the settlement negotiations, the solicitor was playing down the consequences of the second accident and playing up the likely effects of the first. When Mr Murrell's advisers came to plead the claim on the second accident, they reversed the position saying as little as possible about the first accident and enhancing the effects of the second.


I have to say that I for my part have some disquiet about the way the negotiations were conducted between the solicitor acting for Mr Murrell and the insurers in settling the first accident, and some disquiet about the way in which the Schedule of Special Damages were originally drafted in relation to the second accident by, as I understand it, the same solicitor. One letter from Richard Thorn & Co to the insurers of the defendant in the first accident case in discussing settlement of that claim dated 29 February 1996 says that "We fear that our client's condition is such that he may never be able to work again. If you are prepared to concede this point we see no reason why settlement should not be discussed as soon as possible". The claim with three medical reports and a Schedule of Special Damages was issued and served in October 1998, and, although the Particulars of Claim referred to pre-existing injury and the reports dealt with both accidents, the Schedule of Special Damages stated "at the time of the accident [I emphasise the first accident] the plaintiff was unemployed but he expected to return to work within approximately two months". There is thus a significant inconsistency between the apparent presentation of the first and second accident claims. Claims for loss of earnings up to the date of the pleading, and for future losses of earnings, are then made on the basis that he was unable to work again as a result of that accident, quantified by reference to wages he would have expected to earn as a manual labourer.


On any view Mr Murrell's claim in relation to his injuries in the second accident should never have been quantified, other than on the basis that some damage to his ability to work resulted from the first accident. The fact that it was not was in my view regrettable.


It is fair however to say that ultimately the assessment of damages was conducted on the basis that he had suffered an injury in the first accident, which did affect his ability to work, but that he had suffered a great deal more serious injury in the second accident. But the complications which have arisen in this case might well have been avoided if once the second accident had taken place the full details of both accidents and the injuries suffered had been fully disclosed to both defendants. Any settlement could then have been negotiated on a basis that fairly divided up the liability for Mr Murrell's injuries between the two tortfeasors who had injured Mr Murrell.


Not only did that not happen, but at the hearing of the assessment of the damages with which we are concerned, the advisers for Mr Murrell sought to persuade the judge that the documents including the letter above quoted obtained from the insurers' file in relation to the claim made in relation to the first accident, should not be admitted in evidence. The judge ruled they were admissible on the basis that she had to determine the relevant level of compensation in relation to the second accident, and that she needed to have the best evidence available showing for what the plaintiff had already been compensated. This ruling of the judge is one matter raised on the appeal.


The main point on the appeal relates to the assessment of damages for that second accident. Not surprisingly one of the major points which arises relates to the effect on that assessment of the injuries already suffered in, and compensation received for, the first accident.


Further complications in making a proper assessment relate to the fact that the most serious physical injury from each accident was to Mr Murrell's back, but before either accident occurred he had symptomatic back problems likely to reduce the period of his working life, at least for the heavy manual work he had performed, up until the accidents.


A further complication is produced by the fact that it was common ground between the experts, and established by a video covertly taken, that Mr Murrell undoubtedly exaggerated what he was alleging were the consequences of the second accident. That exaggeration has complicated matters in two ways. It made the assessment of what injury had in fact been caused by each accident more difficult, but it is also now relied on in Mr Murrell's favour as being a reason why the judge should not have accepted certain of Mr Murrell's answers at their face value. Mr Murrell's evidence was to the effect that he had suffered injury to his hips and knees as a result of the second accident, and that by the date of trial they prevented him carrying out any kind of work. The experts were agreed that neither accident caused any injury to his knees or hips. The judge concluded thus in the light of Mr Murrell's answers that since he would not have worked from the date of trial because of the condition of his knees or hips, he had no entitlement to future loss of earnings at all. That deprived him of what was a very substantial part of his claim to damages.


Mr Taylor, on his behalf, says that this evidence from Mr Murrell relating to the effect of his knees and hips on his working life was clearly Mr Murrell exaggerating, and that the judge should have found that but for the second accident Mr Murrell would have continued to work in light employment for many years after the date of the trial. He submits that finding was supported by the evidence of Mr Wynn-Davis the medical expert called on Mr Murrell's behalf which Mr Taylor told us was to the effect that Mr Murrell was physically fit to do light work even after the second accident, and that it was his psychiatric injuries which ultimately prevented him working after the second accident.


It should be said that the second accident was a much more serious accident than the first. Mr Murrell was hit head on by a driver on the wrong side of the road seeking to escape from the police. The medical evidence accepted by the judge showed that in addition to inflicting on him a lumbar flexion strain thereby causing further damage to an already damaged back, it caused mild to moderate post traumatic stress disorder.


The issues that arise on the appeal I can thus summarise as follows:—

i) The assessment of Mr Murrell's loss of earnings up to the date of trial; Mr Taylor, for the appellant Mr Murrell, submitted they were too low on the basis that the judge (a) should not have admitted in evidence the details of the settlement of the first accident; and (b) should not...

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