Pearce v Lindfield & Ors

LORD JUSTICE KAY: The claimant, Marina Carol Pearce, had the considerable misfortune to suffer three separate road traffic accidents of a similar kind in a period of little under nine months in 1993. The three defendants are the drivers of other vehicles involved in the accidents, each being involved on a distinct occasion. It was accepted that the claimant was not at fault in any of the accidents and that each of the defendants was liable to compensate her for the consequences of the accidents in which they were involved.

The first issue to be determined at trial was how much of the total loss and damage she had suffered should fall on each of the defendants. There were also issues of quantification of Mrs Pearce's overall loss and damage. Only one such issue is relevant to this appeal, namely the probable date at which she would have retired from her occupation of teaching but for the happening of these accidents.

The claimant commenced two separate sets of proceedings arising out of the accidents. These were consolidated and heard by His Honour Judge Elly in Reading County Court on 10, 11 and 12 June 2002. The judge concluded that each of the three defendants was liable to compensate the claimant in full to the full extent of the loss and damage that she had suffered, save to a limited degree where damage could be identified as solely attributable to a single accident. He further held that as between the three defendants, each of whom was insured, the proportions to be paid were 30 per cent, 30 per cent and 40 per cent in respect of the first, second and third accidents respectively. The loss and damage claim included compensation for loss of earnings and loss of pension rights consequent upon the fact that the claimant had had to cease work as a deputy head teacher, which heads of damage were said to be recoverable against all three defendants.

The judge concluded that the claimant would have worked until the age of 60, and calculated the losses of earnings and pension rights accordingly.

The first defendant, the driver in the first accident, and the second defendant, the driver in the second accident, each appealed against the finding that they should be liable to any extent for the loss of earnings and pension rights. The first defendant further challenges the judge's decision on the probable age at which the claimant would have ceased work but for her accidents.

In the first accident on 5 February 1993 the first defendant was the driver of a car that struck Mrs Pearce's car from the rear as she was starting to turn right into the driveway of her home on the A24 near Horsham. The second defendant was the driver of the car in the second accident on 14 February 1993 who drove his car into collision with the rear of the claimant's vehicle as she was stationary on the same road near to her home waiting to turn right into Warnham village. The third defendant was the driver of the car in the third accident on 29 October 1993. On this occasion the claimant was again stationary waiting to turn right into Warnham village when the third defendant drove into collision with a vehicle behind her car shunting that vehicle into the rear of her car.

On each occasion the claimant suffered a whiplash injury and on the third, additionally, suffered a lower back injury. She had not recovered from the effects of the first injury at the time of the second, nor from the combined effects of the first and second at the time of the third.

The medical evidence at trial relevant to this appeal came from two doctors, Dr Hicklin called on behalf of the claimant and Mr Coull called on behalf of the third defendant. In addition, there were written medical reports from a third doctor, Mr James, before the court. It was agreed that Mr James' reports should be read as accepted evidence of the medical history, but since he was not called to give evidence no regard was to be paid to his expressions of medical opinion.

The claimant did not lose any time at work in the immediate aftermath of any of her accidents. In 1996 she felt obliged to tender her resignation in a letter dated 29 April 1996, which she wrote to the chairman of the governors. The letter included the following explanation as to why she felt she had to cease work:

The medical evidence was not really in dispute on these matters. Dr Hicklin and Mr Coull produced a joint statement of medical evidence to which they each assented. Paragraphs 7 to 9 of the schedule read:

Their evidence at court was to like effect. In particular, at transcript Vol 2 (page 84 line 1) Dr Hicklin said:

On behalf of the first and second defendants it was argued in the court below, as it is before us, that the evidence shows that if the third accident had not taken place then the probability was that the claimant would never have had to cease work. Accordingly, it was argued that those defendants should not have to bear any part of the liability to compensate her for losses arising from her conclusion that she was no longer able to continue to work.

On behalf of the claimant and the third defendant the argument is advanced that it was not merely the third accident which led to these losses but the cumulative effect of these three accidents.

The judge, in arriving at his conclusions, said (paragraph 42 of the judgment found at page MM of the bundle):

Before this court Mr Nussey concedes, on behalf of the second defendant, what he described as the end pain - by which I understand him to mean the residual pain after the immediate traumatic effects of each accident had resolved - and any accompanying psychological damage were properly held by the judge, on the medical evidence, to be the consequences of the cumulative effect of the three accidents and that, as a result, each defendant was liable to compensate the claimant for the totality of those long term consequences. He accepts the legal position is that if it is not possible to attribute a resulting condition to one specific event each event has to be accepted as having made a material contribution to the cause of the condition, and that this is sufficient to give rise to liability in tort against the person whose fault gives rise to the event. (See for example Bonnington Castings v Wardlaw [1956] AC 613). However Mr Nussey argues that the loss of employment with its financial consequences can be attributed specifically to the third act. In this regard he relies upon the evidence of the claimant that but for the third accident she believes she would have been able to continue to work.

Mr Bate-Williams, on behalf of the first defendant, allies himself with these arguments and, with some justification, points out that if they are correct then they apply even more strongly to the first defendant because the period of time that elapsed after the first accident enabled the claimant to have a real appreciation of the extent of the recovery that she was making. Both the claimant and the third defendant support the reasoning of the judge based, as it was, on the agreed medical evidence.

For my part, I have no doubt at all that the judge was right in his conclusion. Once it was conceded, as inevitably it had to be on the evidence, that both the physiological pain and the chronic pain state resulted from the cumulative effect of the three accidents, as was the case once the initial impact of each accident was passed, it seems to me that the claimant is entitled to be compensated not merely for the "end game and psychological state" but for any consequences to which that end pain and psychological state have contributed.

On the agreed medical evidence it was the claimant's medical state by 1995/1996, two to three years after the accident, that brought her teaching career to an end. By that time her condition was the result of the cumulative effect of the three accidents and not the direct effect of any one of them. Of course the claimant was right when she said she might well have been able to have continued work if the third accident had not occurred, but that was in the sense explained by my Lord, Lord Justice Clarke, in argument that it was the third accident that triggered the situation. But the cause on the medical evidence was not simply that accident but the cumulation of the three accidents.

For these reasons it seems to me that the judge was right in his conclusion that all the three defendants must bear a share of responsibility for the financial consequences of the claimant ceasing work. There is no appeal against the proportions in which he held each ultimately were responsible.

The ground advanced by Mr Bate-Williams, on behalf of the first defendant, in respect of the judge's finding that the claimant would work until aged 60 is a separate matter based on evidence called before the judge that many head teachers and deputy teachers retired before the age of 60. Mr Wing, the head teacher at the school at which the claimant taught, gave evidence. At volume 3 of the transcripts (page 9) it was put to him:

Mr Bate-Williams argues that against that evidence the judge should have concluded that there was at least an identifiable chance that the claimant would have retired before the age of 60 even if she had not had the three accidents. He submits the judge should therefore have gone on to make an allowance, albeit a relatively small one, for that chance in determining the appropriate multiplier in calculating her loss of earnings. The fallacy in that argument is that the judge was not assessing when any teacher might retire but was instead directing his mind as to when the claimant was likely to retire. He had to consider her as an individual and not merely as one of a class of people. He heard evidence from her that she wanted to go on working until the age of 60. I find it impossible to see how, without even hearing such evidence, this court could conclude that that was not a finding of fact open to the judge.

Accordingly, that ground too must, in my judgment, fail. It follows that having rejected each of these grounds, I would dismiss each of these appeals.

LORD JUSTICE CLARKE: I agree that these appeals should be dismissed for reasons given by Lord Justice Kay.

I would shortly summarise the reasons in my own way as follows. (1) The judge held that Mrs Pearce's chronic pain state was caused by the cumulative effect of all three accidents. (2) The appellants do not challenge that conclusion. In any event, there was ample evidence to support it. (3) The appellants concede that it follows that all three defendants were liable for the pain and suffering attributable to that chronic pain state. (4) The judge held that it was that chronic pain state that caused Mrs Pearce to stop work and to sustain the loss of earnings and pension identified by the judge. (5) It follows that the loss of earnings and pension was caused by the cumulative effects of all three accidents. (6) Put another way, it follows that each accident made a material contribution to the chronic pain state and therefore to the loss of earnings and pension. (7) It further follows in the light of a number of decisions of the House of Lords, including Bonnington Castings v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1, that the defendants are all liable to Mrs Pearce by reason of their respective breaches of duty, because their breaches of duty materially contributed both to the chronic pain state and to the loss of earnings and pension consequent upon it. (8) In these circumstances the fact that the first two accidents on their own would not have caused Mrs Pearce to give up work is irrelevant. Her decision to stop work was materially contributed to by each accident and thus by the breach of duty of each of the defendants. (9) In all the circumstances I agree that the judge was right to hold that each defendant was liable to Mrs Pearce.

THE VICE-CHANCELLOR: I agree that both appeals should be dismissed for the reasons given by Lord Justice Kay.