Bygrave v Thomas Cook Tour Operations Ltd.

1. LORD JUSTICE WARD: This is an appeal brought by Thomas Cook Tour Operations Limited with Kennedy LJ's permission against certain heads of damage awarded by Deputy District Judge Ashworth sitting in the Central London County Court on 17th July of this year. The case, which had been assigned to the multi-track, concerned a claim for damages for personal injuries suffered by Mrs Julie Bygrave whilst on a package holiday in Cyprus supplied by the appellant. On Friday 25th June 1999 Mrs Bygrave was using a staircase in the hotel where she and her family were staying when she slipped and fell on a landing, as a result of the floor surface being wet and slippery after recent mopping by the hotel staff. Negligence was admitted and the issue before the Deputy District Judge was the assessment of damages.

2. In addition to the claim for general damages, there were claims for pecuniary loss brought under several heads. The first was for past loss of earnings, but her claim for £5,384 was dismissed by the judge. She sought £6,275 for compensation for the past care and assistance provided by her family during her recovery and recuperation, and she was awarded £3,896 under this head. A claim for past loss of leisure time was rejected. She did recover £1,154 for past miscellaneous expenditure. Perhaps, surprisingly, the whole of her claim for future loss of earnings, as well as for a Smith v Manchester award, was dismissed. She recovered £1,864 for future medication. The appeal relates to the last two items of those damages. The judge awarded her £2,485, against £4,970 claimed, for future travel expenses, and secondly he gave her £19,230, against the £38,425, which she claimed for future care and assistance. He also awarded her £19,000 by way of general damages. The appellant appeals against those last three awards.

3. As to general damages, Mr Percy, a consultant orthopaedic surgeon, and a member of the Academy of Experts, who had been jointly instructed by the parties, prepared three reports and sent several letters which were before the court and which are before us. I will endeavour to summarise his opinion. He reported that Mrs Bygrave had suffered a very nasty displaced trimalleolar fracture dislocation of her right ankle. She was treated in hospital in Cyprus by way of an open reduction with internal fixing with plates and screws. The lateral malleolus was stabilised with a plate and eight screws. Some of the screws were rather long and a completely accurate reduction of the fracture was not achieved. The medial malleolus had been stabilised with a lag screw. A large posterior malleolar fragment had also been fixed with a lag screw, but again perfect reduction of this large fragment was not achieved. She was in hospital in Cyprus for seven days, her children returning home without her, though her husband stayed on to assist her. [I interpose to add that the judge was given a graphic account of the distress she was suffering at that particular time, as set out in her witness statement, and it is quite clear that it was a pretty shocking experience and a deeply upsetting one which, of course, ruined that part of the holiday.]

4. The result of that operation was that her leg was in plaster and remained so until early August, some six or a little more weeks. She was then on weight bearing crutches for a further nine weeks. She was off work for about eight months. She had tried to get back to work as a cleaner but found it too onerous. She went off sick again, but returned to that employment eventually. She, in time, found the cleaning work too painful to continue and, on the advice of her general practitioner, she found sedentary work, which was full-time employment as opposed to the part-time work as a cleaner in the school which she previously had.

5. Two of the screws were removed in August 1999. She had to undergo further surgery, which took a couple of days in hospital in August 2001, to remove the remainder of the metal work. The wound that was necessary to inflict upon her at that time took nine months to heal, and Mrs Bygrave had regular attendances at hospital for it to be treated. She has been left with scars on the inner aspect about 10cm long and on the other aspect about 14cm long. This latter scar being a little keloid and fibrous in its middle part. There is noticeable thickening of the ankle and wasting of the calf. She suffers significant restriction of movement, and although the movements were not seen to be obviously uncomfortable, Mr Percy accepted that her ankle troubles her, as she explained it did. She had that difficulty if she stood for too long, for example when ironing. She had that difficulty if walking too far, as for example walking the 20 minutes from a holiday hotel in Ibiza a year or two ago, which she found painful. That pain does not keep her awake at night, but that may only be because she takes, and will have to continue to take for the rest of her life, analgesic and/or anti-inflammatory tablets every day to keep that pain under control. She can no longer run; no longer enjoy the occasional game of tennis she had with her daughter; she cannot hop; she cannot garden; she cannot work out at the gym. X-rays that have been taken revealed that, as early as May 2001, there was evidence of degenerative change; this post-traumatic arthritis is a progressive condition and the arthritic changes will progress over the years and, as it does so, the pain and stiffness in the ankle will trouble her rather more than it does at the present.

6. At one time an arthrodesis was thought to be a possibility, but it is now judged to be unlikely. Mr Percy's current opinion is that he does not think she will need further surgical treatment. She should be able to continue work of the kind she is doing for the foreseeable future. She had a job which required her to take a ten minute walk to the bus stop and to work, and a ten minute walk at the end of the day. She found that troublesome. She has now found work more local to where she lives in Bromley, which has a five minute walk each way.

7. The conclusions of Mr Percy, as expressed in his final report, are that it is unlikely that the ankle systems will get significantly worse. She is likely to be able to continue the present work for the foreseeable future. However, painful stiffness of the ankle will be an ongoing problem because the symptoms are permanent. That, in summary, is what she has suffered.

8. Mrs Bygrave and her husband gave evidence. I have adverted to the distressing time in Cyprus. In that statement she gave a further account of her suffering, and I shall recite further passages from that in due time. The judge said at page 164 paragraph 6:

"I heard from Mrs Bygrave on these points [that is to say on the matters in the medical reports] and I was very impressed with the way that she dealt with them. She did not try to over-estimate or over-egg the pudding, I felt, but was clear about what she could and could not do and also what she thought she might be able to do in the future, though she accepted that at the moment she is catching a bus to work and being able to walk a little bit but cannot walk any great length. She admitted that coming to court today from Bromley, where she lives, had been quite difficult. She referred to one journey and two tube journeys. She said that she tried to do things like cleaning but quite often at the end of the day when nobody was at home to see how much her ankle felt she was in a great deal of pain. I do not in any way disbelieve her or underestimate the significance of her injuries."

9. When dealing with general damages, the judge was correctly referred to the Judicial Studies Board guidelines and to the classification of ankle injuries into those which are "severe", which are defined to be:

"Injuries necessitating an extensive period of treatment and/or a lengthy period in plaster or where pins and plates have been inserted and there is significant residual disability in the form of ankle instability, severely limited ability to walk. The level of the award within the bracket will be determined in part by such features as a failed arthrodesis, regular sleep disturbance, unsightly scarring and any need to wear special footwear."

And the bracket given is between £16,500 and £26,000. "Moderate" injuries are described as:

"Fracture, ligamentous tears and the like which give rise to less serious disabilities such as difficulty in walking on uneven ground, awkwardness on stairs, irritation from metal plates and residual scarring."

The bracket for that award is between £7,000 and £14,000 -- curiously there being, for some reason, a missing £2,500 between the two classifications. In addition, the judge was referred to the comparable cases which either side was able to pluck from Kemp and Kemp .

10. On her behalf, Miss Deal, who has appeared to assist us today, and I am grateful to her and Mr Ferrer for their concise submissions, referred to three cases in Kemp and Kemp , the first being Dunkiert v Taylor (paragraph 13-014). In summary, that related to a male, aged 45 at the date of the accident, and 51 at the trial, who had a badly displaced trimalleolar fracture of his left ankle, which, like this, was fixed with plates and screws. He was in plaster for eight weeks. He too had a permanent limitation of movement, not dissimilar from this. He was unable to run and to walk, but he could walk as long as he adopted a measured pace. His case is very similar to ours but different in that he was thought to have a 35 to 40 per cent chance of post-traumatic arthritic changes, whereas changes here are already self-evident. The award brought up-to-date was £18,700.

11. In Bahi v Rai (paragraph 13-015) a 24-year-old lady suffered a fracture which was reduced with open surgery, including a bone graft from the upper leg and transfixed with wires. She too was left with a degree of immobility, was unable to squat and this would afflict her permanently. She too had scars, not as bad as these, described as not particularly unsightly. Her award was the equivalent of £18,640.

12. In Purkis v Rehman (paragraph 13-016) a 40-year-old male had a compound comminuted fracture of his right ankle joint. Degenerative changes were apparent. The ankle was stiff. There were restrictions in movement and osteoarthritic changes were expected to continue to cause pain. His award was just under £18,000.

13. The cases upon which Mr Ferrer relied, were firstly the case of Re Bennett where a 32-year-old male suffered a trimalleolar fracture of his left ankle. He was in plaster for six weeks. He suffered residual pain and intermittent swelling. He was unable to run or play football, and could not do the gardening and decoration work. He was awarded the equivalent of just over £10,000 (see paragraph 13-021 of Kemp and Kemp ). That may have been low.

14. In Dinsdale v Urban Firm we only know that the claimant was a 51-year-old female who sustained a crack fracture of the navicular bone of the ankle, which united satisfactorily though with some irregularity. She was eights months in plaster and had developed post-traumatic degenerative changes. She recovered just over £8,000.

15. McClean v Boult (paragraph 13-023) was a bimalleolar fracture of the right ankle, fixed with plates and screws, and that unhappy plaintiff only recovered just over £8,000.

16. The judge's conclusion, having been referred to the JSB guidelines and to the cases, was:

"I have borne all this in mind and in particular I have also looked at and I was indeed referred by both counsel to the wording of the JSB guidelines and I have to say that on the issue of general damages I cannot, on the evidence that I have seen and heard, accept that this is a moderate or modest injury and I do feel that it falls into the category of severe. In particular, I note that in the JSB guidelines severe includes injuries necessitating an extensive period of treatment and/or a lengthy period in plaster or where pins and plates have been inserted and there is significant residual disability in the form of ankle instability, severely limited ability to walk. I do believe that those factors apply here. I think that if somebody can only walk for five or ten minutes - and Mrs Bygrave gave evidence that she could no longer walk for any length, for example twenty minutes to a beach in Ibiza - then that has to be serious. It is to Mrs Bygrave's and her counsel's credit that they accept that in terms of serious it is nearer the lower end of the spectrum rather than the higher end but taking into account the case law that I have seen and all the factors I consider that the relevant level of damages in terms of general damages is £19,000."

17. Mr Ferrer attacks that award, submitting that this was not properly categorised as a severe injury. The prognosis having made it plain that although there was some continuing discomfort, it was not of the worst kind. I am bound to say that I find it impossible to interfere with the judge's assessment. She was particularly well placed to judge the lady who she saw in the witness box and whom she heard give evidence. She undoubtedly was able to form her own assessment of the severity of the injury. It comes well within a bracket of severe, and it comes well within the range of injuries to which the three cases referred to by Miss Deal are pertinent. For my part, I am quite unable to be persuaded that it was an injury so manifestly excessive as would cause this court to interfere. This court has made it plain time after time that we do not interfere unless the award is so outside the range as to be palpably wrong. This award was not wrong. On the contrary, it seems to me the judge has got it right.

18. The second challenge is to the allowance made by the judge for the future care, as it was put. The judge dealt with that aspect of the case in this way:

"Finally, coming to care and assistance, again on the basis of my judgment so far and the evidence that I have heard and read I can see that Mrs Bygrave is tired at the end of the day and her ankle gives her discomfort such that she is not perhaps able to undertake all the cleaning work that she was required to do. I do accept that there is responsibility on family and husbands to assist and we have dealt with this in the previous head of claim, but Mr Bygrave is busy, he has got a full-time job. He says he is tired when he comes home in the evening and I an sure he does not want to get the hoover out. The extent to which the children will help as opposed to perhaps should help is a mute one but nevertheless they are getting older and have got their own lives and are perhaps studying for exams. I accept that there is a need for some assistance in this case and I do accept the principle of a cleaner. I do not accept the rate of £34 plus VAT but that is absolutely no criticism whatsoever of Mr and Mrs Bygrave. I think they did what they were asked, which was to get a quote. I think that they did obtain a quote from a commercial cleaner probably earning quite a high turnover and charging VAT but I am sure that if an advert was placed in the local paper a cleaner would be able to be found and I do accept that the going rate is probably £5.50 per hour. I do not think 4 hours a week is in any way excessive, which would make it £20 [sic] a week, which would make it £1,040 per annum and applying the multiplier that would make a total of £19,230."

19. There was apparently evidence before the judge that the going rate as shown in an advertisements in the local paper was £5.50 an hour, which the judge seems to have accepted. There is, therefore, an error in her calculations and the annual loss should be £1,140, so that in round figures she has awarded possibly £2,000 less than she may have intended to do. Miss Deal does not ask us to change the £19,230 award.

20. Mr Ferrer's challenge to this is essentially by way of two points. The first is that because Mrs Bygrave had worked as a cleaner at the local school, and had managed to hold that work down for some months after the accident, she cannot now say that she is incapable of doing her own domestic cleaning. The second challenge is that her tiredness is the result of her now having taken full-time employment as opposed to part-time employment: she cannot properly complain of feeling tired if she has changed her life in that way. In essence, as Mr Ferrer accepted in answer to my Lord's observation, because she is now working full-time she should jolly well pay for it herself.

21. I do not find either of those submissions attractive. There was abundant evidence before the court of the effect this injury was having upon her ability to do the household chores. For example, in her witness statement she said:

"More recently, my ankle has started to lock in the evenings. When this happens I can't bend it. I can no longer clean cupboards or high shelves because of this my husband has to do these things for me now.

My husband also has to do the gardening which is something I used to do. I find that even those household chores I am able to do, take much longer to complete. ...

Household tasks such as hoovering or ironing which require me to be on my feet for any length of time are very difficult and just increase the discomfort to my ankle ... I think that in the future I will have to employ someone to help with the cleaning and ironing.

Because of the on-going pain in my ankle it is becoming more and more difficult for me to hold down a full-time job and do all the housework."

22. In the medical report there are other references to her disability affecting her ability to do the household work. So, for example, she told the orthopaedic surgeon at the interview in January 2002 that she found her work was aggravating the ankle and after a day at work the ankle became painful and swollen. She consulted her general practitioner about it. He advised her to get a sedentary job.

23. She said, and it was accepted, that the ankle is a problem aggravated by walking or standing. At page 80, the medical report records:

"She says the ankle seems to be worse after rest particularly following a period of activity such as doing the ironing or walking."

At page 82:

"She says that being out working all week she has a lot of housework to do at the weekends and her ankle is aggravated by cleaning, changing the beds etc which she has to do at the weekends. She says the ankle is worse after doing these things rather than during the activities."

In the final report she was complaining of painful stiffness in the ankle, aggravated by the more physical activities of life: standing, walking, doing housework et cetera.

24. It seems to me, therefore, that there is abundant evidence upon which the judge was entitled to rely, and did rely, in order to find that her current disabilities affected her domestic activity, and therefore the fact that she struggled on as a cleaner for part of the time after she returned to work is nothing to the point. The point is that she is unable to do the chores without pain and she is, therefore, in my judgment, entitled to be compensated for seeking some help to assist her over that difficulty.

25. I do not accept Mr Ferrer's second argument. The decision to give up the cleaning job was taken on advice. She made the perfectly reasonable choice of finding sedentary work. The fact that it is full-time as opposed to part-time does not make her choice of that work unreasonable. She has, therefore, reasonably altered her lifestyle, and the result of a reasonable decision taken by her is that she is now forced into a hectic weekend of cleaning and that causes the pain of which she has spoken. So I see nothing unreasonable in her claim in this regard. There is no challenge to the multiplier or multiplicand and, in my judgment, this part of the appeal must also fail.

26. That leaves her claim for the taxi fares. Put baldly, as such, it did cause me some concern because there is not only scant, there is probably no evidence at all to which we have had our attention drawn in which Mrs Bygrave speaks of her use of taxis, describing in what circumstances she has to use them and how frequently she does so. The judge approached this aspect of the case in this way:

"Coming on to travel expenses, I do accept because of what I have already said about Mrs Bygrave's ability to travel and the fact that she cannot drive that she is probably going to have to rely more on taxis in the future than the average person will. I am afraid I do not accept the point on porters, I think that the children carry their own bags and let us be honest, I suspect she is getting to an age now when she will be wanting to go away without the children if at all possible. So I am going to allow £100 per annum on that claim but I accept the appropriate multiplier, so that is £2,485."

The reference to porterage is because in the schedule of her loss under this head, she was putting her claim not only for the additional use of taxis but for compensation for the difficulty she has carrying her own luggage.

27. Mr Ferrer's submissions on this part of his appeal are that that, firstly, there is no evidence of her using taxis, but secondly there is the evidence that she has an ability to use public transport and has successfully used it, apparently without complaint hitherto. She gets to and from work. She got to and from the court and, although difficult, it was not impossible. Therefore, he submits, in essence, that there was no evidence which justified the judge's findings that she has a difficulty in travelling and is probably going to have to rely more on taxis in the future than the average person will.

28. This part of the case has caused me some hesitation, but when one reduces the problem to asking whether the judge's conclusion that she is probably going to have to rely more upon taxis in the future than the average person will, and asking whether that finding can be sustained, then it seems to me that the answer is, "yes", it can be sustained. There was abundant evidence before the judge of a limitation in her ability to get round and about. To draw the inference from that that she may have to rely more on taxis in the future than the average person, does seem to me to be an inference which the judge was entitled to draw and which we are not entitled to interfere with. If the judge had gone on to say that that disability should be reflected in an award of general damages of, say, £2,500, it would have been beyond appeal. The fact that she has allocated £100 per annum for these taxi costs is an indication of how that figure is arrived at. But, as a figure looked at in the round, it is one which, in my judgment, is justified in the particular circumstances of this case. I would therefore dismiss the appeal on that ground as well.

29. In the result, in my judgment, the appeal fails.

30. LORD JUSTICE SCOTT BAKER: I agree.

(ORDER: Appeal dismissed. Costs in the appeal on an indemnity basis.)