Pinnington v Crossleigh Construction

LORD JUSTICE BROOKE: This is an appeal by the defendants, Crossleigh Construction, against certain aspects of a judgment of Judge Bursell QC, sitting as a judge of the High Court in the Bristol District Registry, on 10 February 2003 when he directed that judgment be entered for the claimant, David Pinnington, in the sum of £1,171,719.52 inclusive of interest. On 3 April 2003 Hale LJ granted the defendant permission to appeal against the following two elements of the judgment: cost of supply and replacement of process prosthesis - £215,000, and cost of accommodation - £39,936.

On 14 May 2003 Hale LJ adjourned for our consideration on the hearing of the appeal two further items for which she had previously refused permission to appeal. These were: general damages for pain, suffering and loss of amenity - £145,000; valuation of the claimant's present and future earning capacity - Nil. I say at once, having heard Mr Cotter's argument, we grant permission to appeal. This is therefore the substantive appeal on all four items.

The claim arose out of a road traffic accident on 15 July 1998 when the claimant, then aged 33, was riding his motorcycle. In the defence the defendant admitted liability, so that the judge was concerned only with the assessment of the amount of the claimant's award. The claimant suffered horrific injuries in the accident, and has shown thereafter remarkable fortitude. The judge listed his multiple injuries in the following way:

There was an updated statement of the claimant's position in the trial bundle, which was subject to certain qualifications mentioned by the judge. In particular, the claimant's phantom limb pains, which occurred largely at night, had reduced in frequency and intensity and now occurred on a fairly random basis. A prospective hip operation should allow him to walk six to eight miles on a regular basis, and he was to undergo operations to his eye and on his knee ligaments, as well as having a hip replacement. Although the operation to the hip has now taken place we were given no further evidence about the position.

First, a challenge is made to the award for general damages for pain, suffering and loss of amenity. The judge's starting point was a dictum of Sir John May in Brown vWoodall [1995] PIQR Q36:

Mr Barrie had argued that if assessed individually these injuries would merit a total award of £225,000. If the judge then stood back and looked at the global position within the context of awards for paraplegia and for amputation of both arms the appropriate bracket would be between £130,000 and £160,000. He suggested an award at the top of that bracket. Mr Cotter, on the other hand, said that an award of £100,000 would be appropriate. After considering a number of awards in other cases which he listed in his judgment the judge considered that an award of £145,000 to be appropriate.

On the appeal Mr Cotter said that it was common ground between the parties that an award for the loss of the arm alone would be in the region of £65,000. It was also common ground that there would have to be a significant further sum added to cover the balance of the injuries.

He referred us to the written submissions he had made to the judge when he had split up Mr Pinnington's injuries in this way: (i) Left wrist (I have already referred to that); (ii) Hip. Although it had deteriorated, in 2001 he could still walk 20 miles a day, and it was to be the subject of an operation which would ameliorate the symptoms and make it possible for him to walk 6-8 miles a day regularly. (iii) Knee injury (to be remedied by operation). (iv) Eye problem (to be remedied by operation). (v) Psychological problems, together with a possible very mild cognitive defect. On the evidence it was impossible to disentangle the two, but it was said that psychological distress was paramount. Again it was said that there would be improvement/recovery after treatment. (vi) Urological. There was evidence that it was likely that this urinary symptoms could be improved. (vii) Bowel. Mr Pennington had taken laxatives, which would have had some effect. He had attended a colo-rectal specialist for a recent examination, who had reported that his bowel function was normal. (viii) Left shoulder. This had to a large extent healed and was now little more than nuisance value.

It was on this basis that Mr Cotter had argued for an award of £100,000 at the trial. He said that Mr Barrie's approach, to total separate and excessive figures for the different elements of injury and then discount from that total was fraught with danger. He invited us to compare this award with the reported awards in Hickey and Dorrington (to which I refer below), and submitted that the award was well outside the brackets suggested in the most recent Judicial Studies Board guidance, being towards the top of the relevant bracket for the loss of both arms. He suggested that current Judicial Studies Board guidance gave a bracket of between £110,000 to £140,000 for paraplegia, £125,000 to £155,000 for the loss of both arms and £160,000 to £205,000 for quadriplegia, and he submitted, with reference to some cases that he referred us to, that the judge's award was totally erroneous and manifestly excessive.

He showed us, for instance, the award of £120,000 whose current value is £123,000 by Judge Richard Seymour QC in February 2001 in Hickey v Miller reported recently in Kemp and Kemp, Volume B, p 52055 (August 2002). In that case the boy claimant was very much younger at the date of the accident; but it was a non-dominant left arm, as opposed to a dominant right arm, which was rendered functionally useless in the accident, although it was never amputated. Mr Cotter showed us certain features in the summary of that case, for instance that the claimant's walking distance was only about half a mile before he needed a rest. There was a 60 per cent chance that there would be further gradual deterioration throughout his life to bowel function, a 28 per cent risk of deterioration to the point when he would be wheelchair-bound and would not be able to live alone, and a 10 per cent chance of catastrophic deterioration involving quadriplegia and ventilator support.

That was one case which he suggested was more serious than the present case. He then took us to the award in Dorrington LTL 13/11/2001, in which Hooper J had awarded a sum of £135,000 in November 2001 which we were told could be equated to £140,000 now. That again was a much younger claimant. He had suffered brain damage, suffered continually from epileptic seizures and had left-sided visual loss, left-sided weak limb weakness, left-sided sensory disorder and some serious behavioural disorder. Mr Cotter suggested that this was very much more serious than what Mr Pinnington suffered. He also showed us an award by Judge Bentley ten years ago in Wright v Ramsden also now reported in Kemp and Kemp, Volume B, p 52081 (August 2002 supplement) where an award of £45,000 in those days would be equivalent to £64,500 now. In that case there was major neuro-vascular injury to a dominant left arm with other injuries.

In those circumstances Mr Cotter submitted that an award of £145,000 was well above the top of the admissible bracket, so much so that we should interfere. He said that the figure of £100,000 which he had suggested to the judge would be a more realistic one.

Mr Barrie on the other hand submitted that it was quite wrong to start off with the loss of the dominant right arm and then regard the other injuries as simply add-ons. He said that the severe weakness of the left wrist made this a particularly serious injury for Mr Pinnington, and that the other features of his injuries - the problem with his hip, the problem with his knee, the problem with his eyesight, the problem with his bowel and bladder function - made this an altogether different case from a case of a paraplegic who may be disastrously affected from the waist downwards but retains all his proper functions above the waist. Mr Barrie also relied on the worrying evidence about the effect of the injury to the head, the cognitive defect and the evidence of depressive illness which was not likely to get any better, and where there were gloomy prognosis in some respects for the future.

In my judgment, taking this matter in the round and remembering that what we are looking at is a jury award, without necessarily saying that the award of £145,000 was the award I would have made, I cannot possibly find that in the circumstances of this case the award was too high and that this court should interfere with it. Accordingly, I would dismiss the appeal on that point.

I turn to the ground of challenge which suggested that the judge ought to have made an award for residual earning capacity. The judge made no reduction for his award for future loss of earnings on these grounds. There was evidence before him that Mr Pinnington could use a computer and one of the experts had said that it should be feasible for him to find some suitable employment, probably utilising the computer. In April 2002 Mr Pinnington said that he hoped to return to some occupation. In his evidence at the trial, when asked in cross-examination whether he would like to return to work, in answer to the question:

The judge took account of the fact that there had not yet been any attempt at rehabilitation. On the other hand, he found that Mr Pinnington was only using his computer as a typewriter or word processor, and that his manual dexterity would not improve. During the course of his evidence Mr Pinnington had said in a witness statement:

The judge said that in the past Mr Pinnington had been trained to teach others the basic use of computer software. A rehabilitation course consultant, Mr Pace, stated in his report that it seemed unlikely that Mr Pinnington would find employment in the future, given the severe nature of his disability. The judge accepted this evidence, based as it was on practicality, and found that, contrary to his hopes, Mr Pinnington was unlikely to gain remunerative employment in future.

At the trial Mr Cotter had argued that Mr Pinnington had expressed the desire to work, and with some improvement in hip symptoms and no transport difficulties he could return to the courses he took up after the accident. There had been no attempt yet to see a rehabilitation officer, and he suggested that a net annual wage of £5,000 (founded on a minimum hourly wage of £4.20 for 25 hours each week) would be appropriate, and a multiplier of 15 would be appropriate.

On the appeal Mr Cotter submitted that the difficulties which had prevented Mr Pennington from completing a post-accident course on computer literacy would be removed after his impending operations had taken place, and when he had a suitably adapted vehicle and prosthetic assistance. There was no evidence from an employment consultant to the effect that he would not be capable of any employment in the future, and the judge's reasons for making no award at all were inadequate.

Mr Cotter showed us a decision of this court in Tait vPearson [1996] PIQR Q 92, a judgment of Butler-Sloss LJ, which suggested an appropriate approach in this kind of case would be to award a lump sum as an estimate of the chances of getting remunerative employment in the future. Given that what one was doing was estimating a chance the judge was wrong to think, in effect, that there was no chance at all.

Mr Barrie said that the answer to these submissions was that the defendant had never suggested any job which Mr Pennington might be capable of undertaking. During the evidence no realistic suggestions had been put to him or had been established on the evidence. At the time of his accident he was working as a craftsman with his hands. He has severe injuries to his right hip and knee and stiffness of his back and neck which limit his mobility, although of course they may be improved by surgery in the future. The modest computer skills he has acquired out of necessity are not a basis for employment. Reading is difficult because of his eye injury and a great deal of time is taken up in coping with the effect of his disabilities. In these circumstances the judge's acceptance of the evidence of an occupational therapist who had conducted three detailed assessments of Mr Pinnington could not reasonably be challenged on appeal.

This, it seems to me, is an issue on which the judge is in a far better position than this court would ever be in assessing the appropriate approach to this kind of damage. The judge took into account the evidence of Mr Pinnington as a man of remarkable fortitude, that he hoped to be able to get back into work, and that he was not one of those claimants who unreasonably was not trying to find work. But the judge, on the totality of the medical evidence supported by the evidence of Mr Pace, found there was, in effect, no measurable chance that he would be able to obtain employment in the future.

I accept that the finding that he was unlikely to gain remunerative employment in future might suggest that the judge was applying an inappropriate test. What one is doing about the future is assessing a chance. But it seems to me that on the totality of the medical evidence, on the evidence of the expert, Mr Pace, and on the judge's assessment of Mr Pinnington when he gave evidence in the witness box, this is not an issue on which it would be appropriate for this court to differ from the view of the judge who had an advantage which this court does not have. I would therefore disallow the appeal on that ground.

The third element of the appeal relates to the costs of accommodation. At the time of his accident Mr Pinnington was renting a small city centre top floor three-bedroomed flat. As his hip deteriorated, he had to move from this property to ground floor accommodation, and eventually he came to live in a two-bedroomed bungalow in Nailsworth. The judge made an award, which was not challenged on appeal, of about £8,200 for increased rent to the date of trial.

His claim for future accommodation costs was based on his desire to buy a property in or near Stroud so that he will be close to the countryside, which he loves. The judge held that he needed larger accommodation than he occupied at present, and he made a number of small awards, which are not challenged on appeal, for the adaptations and gardening help he would need. The judge considered he would be likely to acquire accommodation with a large enough kitchen but only a small garden because of the difficulties in maintaining the garden. The award under this head, calculated on Roberts vJohnstone principles, of £39,936, was founded on the current valuation of £180,000 for the property he was renting, less an allowance for the annual rent brought up to date that he would ordinarily have been paying, and a multiplier of 26 was applied to a multiplicand of £1,536.

Mr Cotter challenges this award on two grounds: first, because Mr Pinnington would probably have bought a similar property in any event, and secondly, because his present bungalow has a large garden, and the judge found he would not need a large garden. Other grounds were put forward for attacking the starting point of £180,000.

The first ground of challenge was based on Mr Pinnington's evidence at the trial that he was trying to buy a house immediately before the accident, and that the likely present value of the type of property he intended to buy was £90,000. Mr Cotter contended that there was no evidence before the court that this value would not now provide him with a suitable property which afforded him sufficient space, provided that he was prepared to live in a semi-detached urban property.

Alternatively, it was argued that his preference for a rarer property which would give him access to the countryside, allow him to enjoy having a garden and to play music loud was not one which could be regarded as a reasonable necessity. He could reasonably live in far cheaper suitably sized accommodation which was either semi-detached or located in a more urban area and which did not have a garden larger than was reasonably necessary.

The judge rejected the contention that Mr Pinnington would in any event have inhabited a one-bedroom ground floor flat. Even before the accident he had two bedrooms, one of which he used as a workshop. The judge considered that the claim for a garage was subsumed in the overall costs of the new house and he adopted the calculation proffered by the claimant on the basis of the value of his present property.

Mr Cotter, during the course of his oral submissions, argued that the judge was wrong while giving a generous award for damages for loss of amenity, to provide compensation to the claimant for his desire not to live in what Mr Cotter said would be perfectly reasonable accommodation which would be cheaper accommodation semi-detached in an urban area.

Mr Barrie submitted that the judge's approach was a reasonable one. Before the accident Mr Pinnington's requirements for accommodation were extremely modest. He was then a single man in full-time work, who often went away for recreation at weekends and holidays, and the accident had totally altered his lifestyle and what he was now doing was totally reasonable.

He was now renting a single-story detached bungalow constructed in the 1960s and fronting the main A46 road. The property was in need of both internal and external modernisation, including new windows, central heating and redecoration. It had no garage. The need for a property in reasonably good condition, with a larger than usual kitchen and a garage, which was easy to maintain, made the judge's approach a reasonable one. The value attributable to these additional requirements easily made up for any saving that might be achieved by finding a house with a small garden.

Mr Cotter submitted that to some extent the judge had misdirected himself when referring to the evidence of one expert who was not referring to Mr Pinnington's present house. He submitted that allowance was made for Mr Pinnington's problems in the kitchen by financial provision, adaptations which Mr Cotter submits amply rectified the serious problems which Mr Pinnington was currently experiencing. Mr Barrie said simply by way of illustration that it was completely reasonable that his client wished to live in a detached property where he could play loud music. One of his former enjoyments which had been lost to him as a result of the defendant's wrongdoing was playing a guitar, which was now not feasible in view of the serious injuries he had suffered.

Again it seems to me to be the sort of issue on which the judge was in a far better position than this court to weigh up the evidence and make an appropriate jury award as to what is reasonable. Although in certain respects the judge might have expressed his reasons more fully, it seems to me that, supplemented as they are by Mr Barrie's arguments, which were based on the contents of the valuation of Mr Pinnington's present property which was before the judge, the judge's approach, which was to adopt Mr Pinnington's present property as the appropriate starting point was a reasonable one. The judge considered that it would be reasonable for him to acquire another property with similar features. A smaller garden would be cancelled out by the presence of a garage. There were unattractive features of the present property which was on a main road. It is also in need of modernisation. In all the circumstances, again, although I would not necessarily myself have made the same order as the judge, I am of the view that this is not an award with which this court could properly interfere.

The final head of challenge related to prostheses. This element of the claim resulted in an award of £215,900. There was a joint experts' report. A large number of questions had been put to the experts, and the experts' written answers to these questions were before the judge. Dr Sooriakumaran, who is an expert in his field, has recommended four different prostheses for Mr Pinnington's use, which I will call R1, R2, R3 and R4. Each would have to be replaced every five years. R1 cost £12,500, R2 £16,300, R3 £3,100 and R4 £2,600, making a total of £34,500. The claimant had suggested a multiplier of 26 for an annual cost of £6,900, making a total of £176,400. He then added the original costs of £34,500, and the cost of providing assessment and arm training at £2,000, thus producing a total of £215,900 which the judge awarded. It is now accepted that £34,500 ought not to have been added, and that this element of the award should be reduced to £181,400, whatever the outcome of the appeal.

These four prostheses all served different purposes. R1 is primarily designed for high quality cosmetic restoration, for those concerned with their body image. Mechanically it is relatively simple. It is therefore lighter than R2 which is designed to offer a greater functional advantage. An electric hand and elbow lock was chosen in the light of Mr Pinnington's problems with his right shoulder which deny him the opportunity to benefit from a mechanical prosthesis. One disadvantage of an electrical prothesis is its increased weight. The Sensorhand, which forms part of R2, will enable him to hold and grip objects like containers while his left hand removes the lid.

R3, a Power Gripper, offers an alternative type of grip. The tips of its jaws offer greater dexterity and an improved line of vision as compared with the Sensorhand, which is cosmetically more acceptable. The addition of R3 was intended to offer him a choice of device to help him deal with whatever tasks he was trying to achieve.

R4, which costs only £2,600, was Mr Pinnington's idea, as a useful lightweight prosthesis he could use in and around his home and in a workshop. He would be likely to wear it over a T-shirt.

All these prostheses were, in theory, available on the National Health Service, subject to local budgetary constraints. The cost breakdown for R1 highlighted the high cost of a silicone cover, such as was appropriate for a cosmetic prosthesis. Only a minority of NHS patients had high definition silicone cosmetic covers, such as was suggested in R1, because the cost was prohibitive. In the current year only a few centres made it available on the NHS.

The judge said that Mr Pinnington currently had an NHS prosthetic arm, of which he had hitherto made little use, a matter which was supported by documentary evidence. He had been told by his local NHS centre that not all the suggested prostheses were available on the NHS, and this evidence coincided with what the experts had said. The transcript of the evidence shows that during the course of his cross-examination Mr Pinnington told the judge about the prosthetic arm which had been supplied by the local centre at Southmead in Bristol in July 2002. He had had little use from it. When it was put to him:

A little later on he was asked:

In re-examination Mr Pinnington was asked this:

The judge said that it was clear from the expert evidence that utility in use was a very personal matter so far as prostheses were concerned. He noted that Mr Pinnington had not beaten an early path to the relevant NHS department and that he placed bodily image as a low priority. He found, however, that he would slowly move towards the use of all four prostheses recommended by the examiners. Because they could not be obtained locally on the NHS, the judge held that he was entitled to the cost of these items and their replacements at the amounts claimed. He referred in this context to the decision of this court in Woodrup v Nichol [1991] PIQR Q104, 114. That case was decided against the background of section 2(4) of the Law Reform (Personal Injuries) Act 1948, which provides that:

In Woodrup v Nichol Wright J, who was the trial judge, was confronted with a claim for £1,500 per year in respect of medical check-ups and future emergency admissions to hospital, calculated on the basis of the cost of private treatment. The judge said that he was at present able to obtain those facilities from the NHS, but there was a risk that at some future time, if he was to have regular check-ups, he might have to have recourse to his own resources. In those circumstances the judge held that half his medical treatment expenses would probably be funded out of his own pocket and the other half by the NHS, and he awarded damages accordingly.

This approach was upheld in this court. Russell LJ, with whom Taylor and Fox LJJ agreed, said at p Q114:

On this appeal, Mr Cotter showed us in cross-examination that Mr Pinnington accepted that he had been slow to consider the prosthetics because the "cosmetic" effect of prostheses was of low priority; and that if he had been able to avail himself of NHS facilities he would do so. He submitted that this case was on all fours with Woodrup v Nichol. The expert evidence was that all these prostheses were available in the NHS, although they clearly were not available locally at Southmead and there were particular problems in making R1 available because of the costs of the silicone cover. But Mr Cotter said, given that Mr Pinnington was a man who made clear that he would go to the NHS if they had what he needed, the judge was quite wrong to burden his clients with the cost of the private provision of prostheses for the rest of Mr Pinnington's life. He ought to have taken the view on a broad brush approach that the multiplier should be very significantly reduced. As I understood it, he was not submitting that any particular one of these suggested prostheses was unsuitable.

Mr Barrie, on the other hand, submitted that we have to keep our eye on the evidence. The evidence was that although they might be available elsewhere on the National Health Service, they were not available at the local hospital was really a matter of speculation. The court should not indulge in speculation whether they might be available one day or not. When the courts make awards sometimes they get it wrong in favour of the claimant as things turn out, and sometimes they get it wrong in favour of the defendant as things turn out; but we ought on the evidence that was before the judge to uphold the judge's award. The claim for prostheses was appropriate because Mr Pinnington would, as the judge found, move towards the use of prostheses. He called in aid the very firm evidence given by the joint experts that:

In those circumstances Mr Barrie submitted that this was another case in which we should not interfere with the judge's award. He suggested at one time that Wright J in Woodrup v Nichol had wrongly relied on speculative evidence. This court, however, clearly took the view that there was evidence on which the judge could rely in that case. In the context of Mr Pinnington's case Mr Barrie said that it was pure speculation if we were to guess whether the prostheses would be one day available to the defendant at his local NHS centre and that the judge was completely right to provide Mr Pinnington with the financial wherewithal to acquire what would clearly be a great improvement to the quality of his life.

Again it seems to me to be very much a matter for the judge to assess. There was not the evidence, as there just might have been in Woodrup, to entitle the judge to indulge in the kind of speculation that Mr Cotter urged on us. This was a case in which, bearing in mind what he is entitled to do under the 1948 Act, the judge was entitled to find that it was reasonable for Mr Pinnington to acquire this range of devices and renew them once every five years. He would be acting reasonably in acquiring them from a private centre which would provide him properly for his needs in what is very much a very personal affair. Those of us who have not had the misfortune of losing an arm may have more difficulty in appreciating the view of the joint experts when they said how personal this kind of appliance is to a disabled man or woman.

In those circumstances, again I would not disturb the judge's judgment. I stress, because so often decisions are reported and it is then suggested that the Court of Appeal awarded the same amount as the trial judge and that this is the appropriate starting point, I would not necessarily have made the same award as the judge. It was, however, not an award with which, in my judgment, this court on well-established principles ought to interfere.

For those reasons I would dismiss this appeal.

LORD JUSTICE LONGMORE: I agree.

SIR MARTIN NOURSE: I also agree.