Saddler v Filipiak and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Lord Justice Etherton,Lord Justice Ward |
| Judgment Date | 10 October 2011 |
| Neutral Citation | [2011] EWCA Civ 1728 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3 / 2011/ 0264 |
| Date | 10 October 2011 |
[2011] EWCA Civ 1728
Lord Justice Ward
Lord Justice Etherton
and
Lord Justice Pitchford
Case No: B3 / 2011/ 0264
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BASINGSTOKE COUNTY COURT
(HIS HONOUR JUDGE DIXON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr William Chapman (instructed by Kiteleys Solicitors) appeared on behalf of the Applicant.
Mr Robert Lazarus (instructed by Greenwoods Solicitors) appeared on behalf of the Respondents.
This is an appeal by the claimant against an award of general damages in the sum of £32,000 for pain, suffering and loss of amenity made by HHJ Dixon in the Basingstoke County Court sitting at Salisbury on 17 January 2011. No significant complaint is made about the judge's assessment of the injuries suffered by the claimant and their consequences to her. The sole ground of appeal is that the judge erred in his approach to valuation. Having found that there was no recent award drawn to his attention made in respect of injuries which were comparable to the appellant's injuries, the judge said:
"67. Having regard to the sort of level of awards for claimants who have sustained up to 5 or 6 years of reducing pain and suffering and loss of amenities but are left with a permanent reminder of what has happened to them, it seems to me that a proper award in the case of this claimant is a figure of £32,000, and that is the figure, together with interest in addition, that I propose to award her for pain and suffering and loss of amenities.
68. It may help if I endeavour to apportion that award between the various categories, and that I shall do, but I do it deliberately as a postscript rather than by coming to individual awards and then totalling them up and, as may be necessary, discounting them. I would apportion that figure in this way. For the fracture to the left femur, including the scar, £12,000; for the scar to the face, £4000; for the other scars £5000, for the post-traumatic stress disorder, £8,000; for the eye injury, £1000; for the other injuries, £2000. If my arithmetic is right, that should be £32,000 in total. If it is not, I shall reapportion, but I am confident that overall that is the proper sum for general damages in this case."
Mr Chapman's first argument is that the learned judge appears to have approached the problem of assessment from the wrong end once he had rejected any of the comparables which had been drawn to his attention. He submits that Mrs Saddler has suffered multiple injuries, which, as the judge appeared to have accepted, required separate evaluation. When specifying his breakdown of the component parts of the award, one or both of two possible errors was revealed. Either the judge undervalued the component parts of the award or, having identified the sum of the component parts, he discounted it by too great a margin in an attempt to reflect the overall impact of pain, suffering and loss of amenity before making the apportionment which he expressed in paragraph 68 of his judgment.
We have the judge's approved judgment of 17 January 2011. In my view it is a model of care and clarity. The narrowness of the appellant's challenge to the award eventually made is unsurprising.
The appellant is aged 31. At the time of her road traffic accident on 26 November 2006 she was the mother of two children, having separated from the children's father. In June 2008 she married Mr Saddler, and the appellant now has a third child. She lives in Basingstoke and is employed in a responsible post by a subsidiary of Barclays Bank. On 26 November 2006 the appellant was driving her car with passengers to church in Reading when there was a frontal collision with the respondent's car travelling on the wrong side of the road in the opposite direction. An adult friend sitting in the rear of the car was killed. The appellant's own children were injured but they made a full recovery. Her friend's daughter was injured. She too recovered, at least from her physical injuries. Mrs Saddler suffered multiple injuries. Full liability was admitted and the trial was as to the damages only.
It took more than an hour to remove the appellant from her car. She was taken to North Hampshire Hospital in Basingstoke in a conscious state. During the course of medical investigations it was revealed that she had suffered the following injuries:
i) a clean transverse fracture of the mid femur on the left side. The appellant underwent a medullary fixation on 27 November 2006. It involved the insertion of a nail during open surgery into the top of the thigh through the fracture site, terminating close to the knee. A second incision to the outer thigh was required to perfect the placement of the nail. A significant traumatic open wound of the left leg was also cleaned and sutured. The appellant remained in the high dependency unit until 2 December 2006. She was transferred to the ward to undertake physiotherapy and was discharged home with crutches on 8 December 2006;
ii) A traumatic dislocation of the right big toe which was "excruciatingly painful" on admission. The dislocation was corrected while the patient was under general anaesthesia for her surgical procedure to the left femur;
iii) A whiplash injury to the neck;
iv) A blunt abdominal injury to the spleen;
v) A concussive head injury;
vi) multiple scarring comprising a) a traumatic laceration over and under the front left jaw; b) a ragged traumatic laceration to the left thigh; c) traumatic scarring to the right forearm; d) a puncture scar to the left knee; e) surgical scarring to the left leg;
vii) blurred and patchy vision in the right eye caused by a blow to the front of the head;
viii) post-traumatic stress disorder together with a grief reaction which was still affecting the appellant at the time of the trial.
As to the orthopaedic injuries the experts were agreed that recovery had taken place within a reasonable and unexceptional period. The appellant returned to work part-time after about six months and was working full-time after a year until she took maternity leave in 2009. The medical records suggest that the appellant required a good deal of encouragement before returning to work for the first time.
The judge found the appellant to be an impressive, truthful and careful witness. Having considered the expert evidence and the evidence of the appellant herself concerning her principal orthopaedic injury, the judge concluded as follows at paragraph 47 of his judgment:
"47. This appears to me to have been a serious but uncomplicated fracture and the claimant has made a reasonably good physical recovery. The fracture united quite well. She has no limp. There is no risk of future arthritis or degenerative disease. There is clearly some diminution in movement the strength in the leg. Significantly, she is unable to be as active as she was. She told me that she cannot play netball any more, which she enjoyed, and she feels her leg to be less flexible when she is playing with her children. Nevertheless, her evidence was that she regularly attends a gym where she is able to use the bicycle, the cross-trainer and the treadmill. Is apparent to me that physical activity and fitness are important to her, and it appears to me that she is doing well in finding compensations to keep her fit and well. It is clear that she has suffered considerable aching and discomfort from the site of the fracture and the position of the nail, especially, as is often the way, in cold and damp weather. It is now clear from the orthopaedic surgeons that removal of the surgical nail should help, and the claimant is now ready to have this done. Hence my award of the cost of private surgery to achieve that. That is likely to lead to an improvement in fairly short order, which will leave her with a largely recovered left leg apart from, I shall assume, some diminution in the extent to which she can use it, for example in sporting activity."
The judge found that the appellant had made a full recovery from the effects of the whiplash injury, dislocation of the toe, concussion and the blow to the abdomen. As to the damage to the appellant's eyesight, there was a dispute as to causation which the judge resolved in the appellant's favour. The appellant is a short-sighted person, whose condition was usually fully corrected with spectacles. As the appellant described her continuing symptoms arising from the accident, the right eye was no longer as good as her left. There were missing patches in her vision with her right eye. The judge found that the altered sight sensation in the right eye would resolve with time.
The appellant suffered multiple scarring. The judge described his impressions as follows, beginning with the surgical and traumatic scars to the left leg at paragraph 53 of his judgment:
"53. Next is the scar at the site of the fracture of her femur. This, as I have already noted, is a significant scar and plainly visible. It would easily be seen on a swimming pool or a beach. The claimant is conscious of it to the extent that she will not readily wear a swimsuit, which would plainly reveal it. I think that she is entitled to feel self-conscious about it. Given where it is on her body, in practical terms there is very little she can do to reduce its appearance or to conceal it, when for example she on a beach or by a swimming pool and in swimwear. There is a further scar on her left thigh. This is a straight line scar which would normally be concealed by her clothing, but would be visible if she wore sportswear or swimwear, and it might be visible if she were to wear a...
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