Santos v Eaton Square Garage Ltd

This is an appeal by Eaton Square Garage Ltd (“the appellant”) against a judgment and order of HHJ Levy QC sitting in the Central London County Court. Mr Louis Santos (“the respondent”) sustained personal injuries whilst at work on the appellant’s premises on 12 January 2000. He commenced proceedings against the appellant. In due course liability was admitted, as was a 30 per cent discount in respect of the respondent’s contributory negligence. Accordingly, the hearing before HHJ Levy on 16 May 2006 was solely concerned with the assessment of damages. The outcome was judgment in the sum of £84,121. This appeal is concerned with that part of the damages which represents general damages for pain, suffering and loss of amenity. The judge quantified this element in the sum of £45,000 on a full liability basis. In granting permission to appeal Smith LJ considered it arguable that that sum was excessive.

Before turning to the circumstances of the case it is appropriate to state and keep in mind the approach of this court to quantum appeals. It has long been established that we do not interfere with an award unless satisfied that the judge acted on some wrong principle of law, misapprehended the facts or that the amount awarded was wholly erroneous. It is not sufficient that the members of this court would have awarded a different sum if they had been sitting as the court of first instance -- see Flint v Lovell [1935] 1 QB 354, Owen v Sykes [1936] 1 QB 192. If anything, the current approach is less rather than more interventionist. Thus, in Ashdown v Michael (unreported) [98/0516/2] Buxton LJ stated that:

“It should only be in exceptional cases … where this court should be asked to consider interfering.”

For my part, I would add that in this context it is pertinent to have regard both to the sums of money involved and the cost of appellant litigation and to ensure that the one is not disproportionate to the other.

The respondent sustained his injuries when a vehicle upon which he was working fell forward after a jack collapsed. He suffered a pelvic fracture and psychological sequelae. The judge found that the latter aspect of the case was the more important. At the time of the accident the respondent was aged 46. The pelvic injury was the subject of reports from Mr Mark Paterson FRCS. His reports were agreed. In his first report, dated 26 February 2001 Mr Paterson described a crush injury to the pelvis in which the pelvic ring was broached by a right pubic fracture with an associated strain to the right sacroiliac joint. He described the injury as one which would normally be associated with an excellent prognosis. In his second report, dated 16 November 2004, he added that one might reasonably expect the respondent to have experienced symptoms sufficient to prevent him from working for up to 18 months after the accident. No further problems would normally be expected. However, in both of those reports and in a third report dated 5 November 2005, Mr Paterson referred to continuing problems of a psychological nature which were outside the expertise of an orthopaedic surgeon.

Before dealing with those, it is material to observe that the respondent also suffered from pre-existing clinically silent degenerative changes in the lumbar spine. These became symptomatic as a result of the accident. Mr Paterson opined that without the accident the respondent would have been forced to retire from work as a motor mechanic by the age of 55 because of lumbar spondylosis. The accident had had the effect of accelerating such a retirement by about three years.

The psychological sequelae were the subject of reports by Mr Niall Pender, a consultant neruo-psychologist and chartered clinical psychologist. The judge described Mr Pender as an impressive witness whose evidence he felt absolutely able to accept. That evidence was that the respondent had developed Post-Traumatic Stress Disorder (“PTSD”) as a result of the accident and that this accounted for psychological difficulties including an altered perception of pain. By March 2003 the PTSD had given way to Chronic Pain Syndrome. In the second of his reports, dated 7 March 2006, Mr Pender expressed these opinions:

“At my previous examination he was reporting symptoms consistent with PTSD. He appears to have deteriorated in many ways but no longer reports distress or stress at the index event.

“He is withdrawn and apathetic and does not engage in activities as he feels his life has been ruined. He has difficulty considering psychological issues and is concrete in his interpretation of emotional difficulties. He occasionally becomes irritated and agitated. He reports chronic and intense pain and requires help with his daily activities. He no longer socialises and his marriage is in difficulty.

“In my opinion his PTSD appears to have resolved (as indicated by Dr Neal) and his greatest difficulties appear to be a chronic pain reaction which is preoccupying his thoughts and behaviours. He is very entrenched in his current behaviours and can see no solution to his situation.

“He has a restricted lifestyle, he has not responded to psychological intervention and has limited activities. These factors are, in turn, contributing to his reduced mobility and perceptions of pain. He is in a difficult situation where he is unwilling/unable to undertake activities which could improve his lifestyle.

“While he did not benefit from psychological intervention it appears that his chronic pain is very damaging and might, in the future, benefit from intervention. He is a poor historian and provides little information about his condition. Much of my information was presented to me by a translator.

“In summary, this is the second occasion that I have met and examined Mr Santos. He was more withdrawn, less engaged, less distressed and more apathetic during this examination. He complains less about the accident, seems less distressed by it and does not appear to suffer flashbacks or demonstrate any avoidance. His thoughts about the accident now involve irritation and anger rather than distress at experiencing a life threatening event. In fact, he expresses a keen interest in returning to his former employment.

“In my opinion, I would agree that he is no longer suffering from PTSD symptoms but is failing to make progress and his functional ability is deteriorating.

“I cannot see how he can work in the current circumstances but in my opinion, given that his post-traumatic symptoms have resolved, he should be capable of working in some capacity and, in fact, experiences a strong desire to return to work. In order to see improvement I would suggest that he needs the skills of a full MDT pain clinic but it appears that he is not keen to have any change in his current circumstances, a fact that is supported by his friends and family.

On the basis of the medical evidence the judge concluded that:

“There is good reason for [the respondent] not being able to work since the accident but there must have been periods where he could have got work. He attempted to look for parts for his son’s car, though he says he seldom went out alone.”

Later, the judge added:

“He is unable to work for another 18 months.”

The judge also referred to the oral evidence of the respondent and his partner but he did not find either of them to be impressive witnesses. He assessed general damages in the sum of £45,000 on a full liability basis, that being the sum contended for by Mr Townsend on the basis of the guidance contained in the Judicial Studies Board’s Guidelines for the Assessment of General Damages in Personal Injury Cases. At the time of the hearing the relevant edition was the seventh edition -- it has since been replaced by the eighth edition.

Before turning to the issues raised on this appeal it is necessary to observe that unfortunately the tapes upon which the proceedings and judgment in the Central London County Court were recorded have gone missing. Consequently we have no transcript of the evidence or the judgment. Counsel have been able to agree a note of the judgment but, inevitably, we are at some disadvantage by not having an approved transcript and not having access to the actual evidence.

At the time of the hearing in the county court the figure of £45,000 was said to be derived from the guidelines set out in the JSB book. So far as the orthopaedic injury was concerned, Mr Townsend submitted to the judge that the case was the equivalent of a severe back injury as per B(a)(iii) of the guidelines, or at least a moderate injury as described in B(b)(i). Mr Newman submitted that the appropriate range was that described in category B(b)(ii). These guidelines were described in the following terms in the seventh edition. In setting them out I shall add in brackets the corresponding sums now to be found in the eighth edition. Back injuries are divided into severe, moderate and minor categories. There are three sub-categories under the sub-heading “severe”, the third of which is in these terms in B(a)(iii):

“Cases of disc lesions or fractures of discs or vertebral bodies where despite treatment there remain disabilities such as continuing severe pain and discomfort, impaired agility, impaired sexual function, depression, personality change, alcoholism, unemployability and the risk of arthritis: £21,500-£38,000 (£22,650-£40,750).”

The moderate category includes these two sub-categories.

“B(b)(i): Cases where any residual disability is of less severity than in (a)(iii) above. The bracket contains a wide variety of injuries. Examples are a case of a crushed fracture of the lumbar vertebrae where there is a substantial risk of osteoarthritis and constant pain and discomfort with impairment of sexual function. That of a traumatic spondylolisthesis with continual pain and the probability that spinal fusion will be necessary or that of a prolapsed intervertabral disc with a substantial acceleration of back degeneration: £15,250-£21,500 (£16,300-£22,650).

“(ii): Many frequently encountered injuries to the back, such as disturbance of ligaments and muscles giving rise to back ache, soft tissue injuries resulting in exacerbation of any existing back condition or prolapsed discs necessitating laminectomy or resulting in repeated relapses. The precise figure depends upon the severity of the original injury and/or whether there is some permanent or chronic disability: £6,750-£15,250 (£7,125-£16,300).”

Clearly the category of severe injury described in B(a)(iii) allows for such things as depression, personality change and unemployability. It seems to me that it does so in the expectation that the orthopaedic diagnosis and prognosis are the main concerns but that they are aggravated by such things as depression and personality change. This is not such a case. The judge found, and it is not disputed, that it is the psychological sequelae that preponderate. Moreover, category B(a)(iii) is concerned with continuing disabilities of a conventional orthopaedic kind. I therefore reject the submission that the orthopaedic injury in the present case could be categorised as severe.

All cases are different and it can be difficult or impossible to categorise a particular case as falling precisely within one or another of the JSB’s sub-categories. In my judgment, it cannot be said that the respondent’s orthopaedic injury falls wholly within category B(b)(i) because by itself it does not have the enduring sequelae there described. Moreover, whilst the accident caused an acceleration of the symptoms resulting from the degenerative back condition, that acceleration (3 years) may not properly be described as “substantial”.

If the orthopaedic injury in this case had stood alone, uncomplicated by the psychological overlay, in my judgment it would have been correctly placed in category B(b)(ii). Moreover, I consider that it would have fallen in the lower section of that category. Although the acceleration of symptoms resulting from the pre-existing degenerative condition is an important feature, the severity of the pelvic fracture was not great, nor by itself did it give rise to permanent or chronic disability.

In my judgment, having regard to the JSB guidelines and also to the examples set out in Kemp and Kemp, to which Mr Newman has drawn our attention, I would quantify the orthopaedic injury by itself in the sum of £8,000. Unlike counsel I have not confined myself to the part of the JSB guidelines which fall under the heading “Back Injuries”, I have also had regard to the specific guidelines on pelvic and hip injuries whilst keeping in mind that in the present case the pelvic injury caused an acceleration of symptoms relating to the pre-existing degenerative back disease.

I next turn to the psychological sequelae. Dealing with psychiatric damage in general the JSB guidelines identify the following factors which are to be taken into account:

Mr Townsend submitted to the judge that the present case then fell within category A(a) “severe”. Mr Newman contended for A(b) “moderately severe”. They are respectively described as follows (once again I add the enhanced figures from the eighth edition):

For my part I am surprised that the debate focussed on the guidelines produced under the heading “Psychiatric Damage Generally” rather than those which specifically deal with PTSD and Chronic Pain Syndrome. The PTSD guidelines include the following:

“(a): Severe. £34,000-£55,000 (£36,650-£58,500). Such cases will involve permanent effects which prevent the injured person from working at all or at least from functioning at anything approaching the pre-trauma level. All aspects of the life of the injured person will be badly affected.

(b): Moderately severe. £12,500-£31,750 (£13,500-£33,800). This category is distinct from (a) above because of the better prognosis which will be for some recovery with professional help. However, the effects are still likely to cause significant disability for the foreseeable future. While there are awards which support both extremes of this bracket the majority are between £20,000 and £25,000.

(c): Moderate. £4,500-£12,500 (£4,825-£13,500). In these cases the injured person will have largely recovered and any continuing effects will not be grossly disabling.”

Chronic Pain Syndrome simply distinguishes between severe and moderate, advising a range of £23,000-£35,000 (£24,450-£37,150) for the former and £6,000-£18,000 (£6,350-£19,100) for the latter. In the present case the initial PTSD has given way to Chronic Pain Syndrome. At trial some six years had elapsed since the accident. The Chronic Pain Syndrome remained and whilst the prognosis could not be described as good neither was it wholly pessimistic. The judge’s finding, which is unchallenged, is that a return to some, albeit different, work after 18 months assumes a probability of improvement. I note that the guideline figure for moderately severe PTSD at the time of trial suggested that the majority of awards fell between £20,000 and £25,000. That figure would also be close to the guideline ranges between severe and moderate Chronic Pain Syndrome.

The PTSD in this case lasted for about three years. The symptoms of it were more varied than those which now accompany the Chronic Pain Syndrome. After the three years those additional symptoms ceased but, as Mr Pender’s report makes clear, the Chronic Pain Syndrome took hold and worsened. It is always difficult to find the exact level of appropriate compensation for such conditions, especially when they are continuing without recent improvement at the date of trial and the prognosis, whilst not wholly pessimistic, is not wholly clear either.

In my view the most appropriate way to look at the psychological aspect of this case is to say that if there had been no diagnosis of PTSD in relation to the earlier period but there had been Chronic Pain Syndrome from that period until trial and for a further 18 months, the Chronic Pain Syndrome would properly be described as severe rather than moderate, albeit towards the bottom end of the severe range. To that I would attach a figure of £24,000. There was a period of some three years when the diagnosis of PTSD with the additional unpleasant features of constant reliving of the accident, flashbacks and the like, added a significant element to the severity of the Chronic Pain Syndrome which I would assess in the further sum of £3,000, thus producing a total for psychological injury at £27,000.

When added to the £8,000 for the orthopaedic injury this produces a grand total of £35,000. However, in this as in any other similar case, the correct approach is not one of simple aggregation. Compensation for pain, suffering and loss of amenity has to take into account that where there is a plurality or duality of conditions simple aggregation would produce over-compensation for pain, suffering and loss of amenity. That is particularly so where, as here, the psychological sequelae are related to the pain or perception of pain which was initially caused by the orthopaedic injury.

Taking into account the entire picture it seems to me that the aggregated figure should be discounted. In my judgment the appropriate total figure should be reduced to £32,000. Of course none of the figures I have mentioned is the product of meticulous science -- exactitude is impossible in this field and there is always a degree of latitude. Accepting that, I am satisfied that my figures are reasonably generous to the respondent.

The final question is whether a reduction from £45,000 to £32,000 justifies interference by this court, having regard to the approach to quantum appeals to which I referred earlier in this judgment. In my view it does. It amounts to a reduction considerably closer to one third than to a quarter. Even though the difference amounts to only £13,000 -- not a large sum in the context of modern litigation costs -- and the true award to respondent is to be further reduced by 30 per cent by reason of the agreed contributory negligence, I am satisfied that interference is justified.

This is not a trivial case. By way of comparison, £32,000 is within the JSB guideline range for the complete loss of sight in one eye and for very serious leg injuries leading to permanent problems with mobility, requiring the use of crutches for the remainder of the injured person’s life. But whilst there can be no universal arithmetical formula for determining the threshold for appellate intervention, I take the view that an award of £45,000 on a full liability basis is properly described as wholly erroneous. There would be an injustice to a defendant or his insurers if they were required to pay damages based on an error of that magnitude, just as there would be if a claimant were to be compelled to accept an erroneous award of £32,000 when the real figure is in the region of £45,000. I do not consider that interference in this case would be disproportionate, having regard to the issue of legal costs, nor do I consider that the 30 per cent discount for contributory negligence renders the case any less susceptible to appellate intervention. If the award were allowed to stand, quite apart from the injustice to the appellant it would stand as licence to trial judges to diverge substantially from the true bracket with impunity. That would not be fair to claimants or defendants generally.

Accordingly, I would allow the appeal to the extent I have indicated, reducing the figure for general damages from £45,000 to £32,000.

I agree.