Sadler v Filipiak & Anor

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:

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 Sadler 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 Sadler, 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 Sadler 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:

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:

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 very short skirt, which she told me she does not tend to wear. This scar is far less vivid than the femoral scar, and whilst it is visible it is not obvious. Against her other scars it would not, in my assessment, cause any further or additional concern, and it does not significantly worsen the overall picture of her scarring. There is a patch scar on her tibia with an appearance similar to the scar on her forearm but with a slightly darker appearance. It is plainly visible on her uncovered leg when she wears a skirt. She continues to complain of some sensitivity over the scar. Mr Rossi advised that some cosmetic revision would be possible, but it would lengthen the scar and would result in only a 20% to 30% improvement of appearance at best. So I approach this scar on the basis that it will remain as it is. In my presence the claimant applied some foundation to the scar, which I thought was very effective in reducing its appearance, although it did not conceal it altogether. My assessment about this scar is that it is not a major blemish and that the claimant will cope with it quite well. In colder weather she will conceal it under tights or trousers, and in warmer weather I think she can cover it quite effectively.

54.

Finally, there was a puncture scar below the left knee. I regard this as insignificant. It is barely visible alone and does not, in my judgment, cause any separate serious blemish or add to the overall scarring that I have already noted.”

At paragraph 51 the judge described the facial scarring:

The last significant injury was psychological. The experts agreed that the appellant suffered repeated "re-experience of the event ", avoidance, anxiety and increased arousal. The experts agreed that these were symptoms of a post-traumatic stress disorder. In addition the appellant suffered the classic symptoms of altered mood consistent with a grief reaction for the loss of her friend and its circumstances.

After two years there was significant improvement but symptoms were persistent. The experts agreed that the appellant met the full symptomatic criteria for PTSD for a period of two to two-and-a-half years. The appellant continued to experience considerable anxiety at the prospect of driving, although she had occasionally driven when absolutely necessary for family reasons. Her preference was to walk 40 minutes to work seeing the older children to school on the way. The appellant was resistant to any form of counselling to overcome her fear of driving. She said she just wanted a bigger car and she would overcome it herself.

There was an apparent conflict in the evidence given by Dr O'Doherty, a clinical psychologist, on behalf of the claimant and Dr Master, a consultant psychiatrist, on behalf of the respondent. I say "apparent" because the judge concluded that the experts were largely engaged in a legal or semantic dispute rather than a clinical disagreement. He said at paragraph 20 of his judgment:

As to the dispute about the appropriate treatment of the appellant's aversion to driving, Dr Master expressed the opinion that the answer to the appellant's problem was not the purchase of a bigger car because that would simply reinforce avoidance. The appellant required a form of therapy which required her to face and overcome her fear of driving. Dr O'Doherty disagreed. The judge preferred the evidence of Dr Master in this respect and said at paragraph 28:

Both parties sought to assist the judge by providing examples of awards in other cases. While the judge found it useful to make comparisons, it did not in the end provide him, he said, with a clear picture. The reason was that none of the "comparable" awards were made for this appellant's particular constellation of injuries. The judge acknowledged the practice of reference to the Judicial Studies Board guidelines for the range of awards for different categories of injuries. As to the process of categorisation, the judge said at paragraphs 59 and 60 of his judgment:

The judge then approached his assessment of the injury to the left femur including the scarring. He acknowledged the agreement between the parties that the award should fall within the category identified in the JSB's Guidelines on General Damages in Personal Injury Cases 10^th edition at Chapter 6L(c)(i) at page 48, which reads as follows:

The learned judge noted the introduction to the Guidelines under the authorship of Mackay J. It was important to notice that the Guidelines are issued in order to inform the profession and the judiciary of the range of current awards made by courts for roughly comparable injuries. They do not purport to be a straitjacket within which awards of damages for different forms of injury must fall. It is noticeable that the category to which I have just made reference was not expressly intended to include an element of award for scarring resulting from a less serious leg injury. On the other hand, in describing the ranges to be found for more serious leg injuries, scarring was a consequence which is specifically taken into account. On the appellant's case at the time of the trial the nail was still in situ. It was causing continuing symptoms, although the appellant had clearly regained her walking endurance. The appellant was going to undergo the surgical removal of the nail, which the judge found would resolve remaining symptoms, save for a residual loss of the appellant's former athletic ability. In particular she would not be able to return to playing netball.

Were this an exercise of judgment to be made by this court sitting as a trial judge, the appropriate award for the orthopaedic aspects of the injury would in my view be £14,000 and the additional loading for the conspicuous scarring described by the judge £6,000, making £20,000 in all. The judge's apportionment was, as I have noted, £12,000.

As to the facial scarring, counsel agreed that the range identified at chapter 7 section B(a)(iv) of the guidelines at page 60 was £2,600 to £9,000. This category is described as follows:

The judge awarded the appellant the sum of £4,000. This court has been provided with photographs while the judge had the additional and important advantage of being able to view the scarring for himself both in natural and artificial light. It is, accordingly, the description of the judge himself which in my view should educate an evaluation of this injury. The judge described the appellant as a pleasant and attractive woman. She cared about her appearance and was sensitive to others' impression of her. She made no attempt to exaggerate her reaction to her appearance and she showed the judge how she used make-up to camouflage the scar. It is apparent that without make-up it is a noticeable scar in a prominent part of the face at conversation distance, stretching from the cleft of her chin just below the left side of her mouth, vertically to the other side of her chin. It can be observed from the front and in left profile and constitutes a significant blemish to the face, which is otherwise unmarked. For myself the appropriate award for this scar to the face would be £6,000. The judge awarded a separate figure for the other scars to both legs and the forearm of £5,000 and, with respect, I agree with his assessment, which can certainly not be criticised as unreasonable.

The judge allocated £8,000 for the pain, suffering and loss of amenity associated with the appellant's condition of PTSD. At Guideline Chapter 3B(a) it is noted that the most severe cases attract awards of up to £66,000 where the patient suffers permanent effects preventing her 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".

A moderately severe category with a range of £15,250 to £40,000 is described as follows :

At paragraphs 18 to 20 of his judgment the judge dealt with the dispute between the parties as to whether the claimant's disorder should be placed within the JSB category “moderately severe” or “moderate”. The judge took the view that the argument was largely semantic. The experts were agreed as to the nature of the disorder, its symptoms and its duration. It is apparent that the learned judge took the view that this disorder suffered by this appellant would probably fall into the category of "moderate". In my judgment the appellant's condition fell squarely within the "moderate" category and the appropriate award for PTSD alone would in my view have been £12,000.

The judge correctly identified the eye injury as "minor" as identified in Chapter 4A(h) of the guidelines at page 16, namely a minor injury such as a blow to the eye causing initial pain and some temporary interference with vision. The advised range is £2,600 to £5,750. Alteration of vision is a worrying injury for the victim, particularly when it cannot be improved by an ophthalmologist or an optician. Here spontaneous recovery was likely at some time around the fourth anniversary of the accident. In my opinion the award could not justifiably have been less than £2,500, were this to be an injury compensated in isolation.

For the remainder of the injuries, that is whiplash, concussion, dislocation of the right toe and the blow to the abdomen, all of which recovered within a relatively short period of time, the judge apportioned £2,000. I do not consider that this assessment can fairly be criticised.

A simple exercise of addition of the component parts of the award which I would regard as appropriate produces a total of £47,500. The judge was careful in his efforts to reach a fair award. He said this at paragraph 66 of his judgment:

The disparity between the parties was indeed substantial. To the judge below Mr Chapman was suggesting a range before adjustment for overlap of about £79,500 to £84,500. Mr Lazarus was putting forward a range of £27,650 to £62,650. He suggested that the total before adjustment for overlap should be about £40,000 reducing to £24,000 after that adjustment was made.

This raises two specific issues for the consideration of the court. The first is in what circumstances may and should this court interfere with the assessment of general damages for pain, suffering and loss of amenity, particularly where there is no challenge to the judgment made by a trial judge both of the injuries themselves and of the effect of those injuries upon a particular claimant. In the appeal of Santos v Eaton Square Garage Ltd [2007] EWCA Civ 225 Maurice Kay LJ considered this issue at paragraph 2 of his judgment as follows:

Secondly, an issue arises as to the correct approach towards damages for pain suffering and loss of amenity when multiple categories of injuries are suffered by the claimant. This issue was considered by the court in the unreported case of Dureau v Evans, 13 October 1995. The leading judgment, with which the other members of the court agreed was given by Kennedy LJ, who had much experience in this field. He said :

“In deciding what the award should be in respect of pain, suffering and loss of amenity, the learned judge considered, as he was invited to, tables which had been prepared by the Judicial Studies Board and which were placed before him by counsel then acting on behalf of the plaintiff. He also considered the figures which were put to him by way of example on behalf of the defendant. He came to the conclusion that some benefit was to be obtained from the earlier type of figures; a conclusion which is disputed by Mr Murphy, on behalf of the defendant. It seems clear to me that the learned judge did not simply focus on those figures. He arrived at his conclusion by using them as a tool in addition to the figures which he had been invited by Mr Murphy to consider. In that way he arrived at his figure of £45,000…

It is submitted by Mr Murphy that, nevertheless, the learned judge reached a figure which was too high and that the figure should have been in the region of £35,000. He submits that the learned judge was led into that error because of the weight which he gave to the separate figures advanced by the Judicial Studies Board in respect of the separate heads of injury. He invited us to look at the way in which the argument had been put on behalf of the plaintiff and the different heads which had been given to different types of injury which this plaintiff had sustained. Mr Murphy submits that was a wrong approach and no weight should have been given to it at all. He has invited our attention to some awards of damages reported in Kemp. Miss Dureau, acting on behalf of her father with great skill and courtesy, has done the same in relation to some other awards, taking also advantage of the skeleton argument prepared by Mr Bishop at an earlier stage in the preparation of this appeal. Needless to say, we have looked at the awards to which our attention has been invited, as well as the figures which have been put forward as being the figures set out by the Judicial Studies Board.

Help is to be obtained from any source where it happens to be available. To a limited extent, in a case where there are multiple injuries, the figures in the Judicial Studies Board table can help but I accept Mr Murphy's criticism of them that, where one has a multiplicity of injuries, it is necessary to take an overall view. The off-setting process may mean it is not possible to derive a great deal of benefit from that particular source. One then looks to see if anything can be gained from looking at a comparable award, if one is to be found, in another other case. Even that may not prove to be a particularly fruitful source of inquiry. It may be necessary, if it be possible, to select what may be the most serious head of injury to see if a comparable award can be found in relation to that and, if so, build on it to allow for the other heads of injury which have been sustained by the plaintiff in the instant case.

The latter passage as to the use of the two different sources of information was cited with approval in Clarke v South Yorkshire Transport Limited [1998] EWCA Civ 503(19 March 1998) when Mantell LJ, having approved it, continued:

“I would add that in my judgment an appeal court should always be slow to interfere with the trial judge’s assessment even though it may seem that such assessment falls outside the Judicial Studies Board guidelines or is out of kilter with other roughly comparable cases. After all, the trial judge will have seen the plaintiff and, sometimes, as in this, have had the advantage of visiting the plaintiff’s home and seeing film of her getting about both in the home and outside. The trial judge will have been in the best position to make a judgment as to the effect upon the plaintiff’s life of the injuries and the consequent disabilities. It is only after a degree of hesitation, therefore, that I have come to the conclusion that in this case the award for pain, suffering and loss of amenity cannot be allowed to stand.”

Mr Lazarus relies, first, upon the reluctance of this court to interfere with the evaluation of damages by trial judges for the very good reasons identified by their Lordships in the cases to which I have referred. Secondly, as to the utilisation of the guidelines published by the Judicial Studies Board, Mr Lazarus submits that it is inappropriate simply to amalgamate different awards for different categories of injuries, the very argument which the trial judge rejected in this case.

In Smith v Jenkins [2003] EWHC 1356 (QB) Gibbs J was faced with the question whether it was appropriate to make a significant discount in respect of the phenomenon of overlap between categories of injury. The claimant suffered fractures to the right temporal bone, to the right jaw and to the cheek bone. The judge concluded that the physical injuries and the psychological injuries which follow were appropriately the subject of separate assessment with no significant discount from the total. At paragraph 81 of his judgment Gibbs J explained:

On the other hand in Santos v Eaton Square Garage Limited [2007] EWCA Civ 225 there was a distinct overlap between the painful consequences of physical injury called chronic pain syndrome and a diagnosis of PTSD. In that case Maurice Kay LJ said at paragraph 22:

It is in my judgment always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the JSB guideline advice, to consider whether the award for pain, suffering and loss of amenity should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person's recovering quality of life or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting. In some cases, no doubt a minority, no adjustment will be necessary because the total will properly reflect the overall pain, suffering and loss of amenity endured. In others, and probably the majority, an adjustment and occasionally a significant adjustment may be necessary.

In this case there was in my view no significant overlap between the psychological and physical damage suffered. The appellant's PTSD arose not from the perception of the injuries but from the horror of the accident. The grief reaction was an important component of the appellant's psychological suffering. It arose from the loss of her friend in the same horrifying accident. There was, however, by reason of the nature of the judge's approach, an overlap created by the separate awards in which scarring was reflected. There were in all three separate assessments which represented either in whole or in part an allowance for the effect of scarring. There was also, it seems to me, a significant degree of overlap between individual orthopaedic injuries. Clearly the principal injury was that to the appellant's left femur. It was the consequence of that injury which caused a prolonged period of recovery.

In my judgment a significant adjustment from the figures to which I have made reference is required to produce a total award of £40,000. I acknowledge immediately the deference due to the assessment made by HHJ Dixon following his careful and reasoned approach. However, I am left with the irresistible conclusion that Mr Chapman's argument is right. Either the judge undervalued each of those categories of injury and their effect in combination, or he applied too great a discount before arriving at his award of £32,000.

Having in his judgment rejected the comparables put before him by counsel for each of the parties, it is not possible to ascertain how the learned judge arrived at his total figure other than by amalgamating the apportioned figures which he gave in paragraph 68 of his judgment. Thus approached, it seems to me that the award of £32,000 was manifestly too low for the injuries which the judge summarised in his judgment. It may be that the judge's rejection of Mr Chapman's inflated submissions, amounting to double the figure which I would regard as appropriate, caused the judge to underestimate in money terms the impact which these injuries had on a blameless claimant over a period of five years and more. The difference between my assessment and that of the judge is 25 per cent of the judge's award. That is in my view sufficiently significant to warrant interference. I would therefore allow the appeal and substitute a figure of £40,000 as an award for general damages for pain, suffering and loss of amenity together with an appropriate award of interest.

Turning briefly to the proposed cross appeal the appellant received permission to appeal on 12 May 2011. The respondent's notice should have been served on 27 May 2011. It was served in draft on 27 May, but the skeleton argument explaining the basis for the cross-appeal was not served until 9 June 2011. The respondent seeks to challenge the judge's valuation of the appellant's claim for the past and future cost of preparations required, as she saw it, to improve the appearance of the scarring to her legs and forearm. On 12 July 2011 Tomlinson LJ declined in writing to give permission and ordered that any renewal should be made to the full court. The reasons he gave were as follows:

“The proposed cross-appeal is in respect of an award of £950 plus interest and of £5,264. It is inconceivable that these awards would have been challenged had not the appellant been granted permission to appeal and I am unprepared to grant permission to cross-appeal simply because the matter would in any event be before the full Court of Appeal. The judge dealt with exceptional thoroughness with these three small disputed items at paragraphs 38, 41 and 42 of his judgment. He took into account the lack of documentary evidence as to the Estee Lauder advance repair treatment. The claims for bio-oil use past and future were discounted to reflect points made by counsel for the respondents. The point at issue concerns the reasonableness of a young woman using products which the judge plainly found she reasonably believed had been beneficial in contributing to the healing and concealing of facial and other scarring. The judge was entitled to reach the conclusions which he did and I do not consider that an appeal against them has a reasonable prospect of success."

The learned judge's assessment to which the single Lord Justice referred appears at paragraph 38, 41 and 42 of the judgment:

“38.

The second item relates to the cost of Bio-Oil. I shall come back to this in a moment, because it arises more conveniently under item 8 in the schedule. The claim is for the cost of buying this particular pharmaceutical (if I can call it that) product over a period of just over 48 months at £19.79 a bottle each month. The defendants concede some element of claim, but they dispute the amount which the claimant, by implication, says she was using, and they dispute the price at which she says she was buying it, because it could be obtained more cheaply. I take the view here that the claim to date is justified at the rate overall of about a bottle per month. But, on the other hand, I am sure on the evidence I have seen that it could have been acquired more cheaply. I have in mind too the submissions made by Mr Lazarus that perhaps the claimant is using it for convenience rather more extensively than she would need to in order to deal with her injuries. What I propose to do is accept the figure claimed in principle, but to reduce it by just under 5%. So the sum claimed to date was 4.17 years times 12 bottles times £19.79, which I think came to £990 in round figures, and I propose to reduce that to £950.

...

41.

The claim in relation to Bio-Oil was in the sum of £3, 585.94 in the schedule, representing the cost of one bottle each month for a period of 20 years – the sum being reached by the application of an appropriate multiplier. Bio-Oil is an oil which the claimant applies to her scars. She regards it as highly beneficial. It was recommended to her, she said, by her general practitioner, and it has the effect of helping to reduce the appearance of her scars. Both she and Mr Robert Harris of the defendants’ solicitors, from whom I heard evidence, produced printouts from various websites about this product. If its marketing and advertising material is to be taken at face value, and I cannot do anything other than to do so, it certainly claims to be beneficial in helping to maintain the elasticity of scarred skin and to improve the appearance of scars. It retails in high street shops for about £19.79 for a 200 ml bottle. It appears to be available for considerably less by mail order and under special offers. The defendants accept that it is beneficial to the claimant, but Mr Lazarus argues that, on the evidence, it is clear that she was using it far too liberally and applying it to areas of her skin beyond the scarred areas themselves, and in effect using it in place of skin moisturiser which she would have bought and used in any event. As against that, the claimant said that she now uses Bio-Oil rather less often than she had in the past, but Mr Lazarus submitted that a claim for x20 years’ use is, overall, excessive. But he accepted, again I thought realistically, that there were a number of balancing factors, as he put it, on each side, and so the court needed to take a pragmatic view. He concedes some past use, but submits that no award should be made for future costs. Mr Chapman, in contrast, submitted that the claim was modest in being restricted to 20 years only, and that it was foreseeable, given the sort of person that the claimant is, that she is going to continue to use it. My view about the Bio-Oil issue is that 20 years is reasonable, but I think that it will be used less by the claimant, and I am quite sure that she should be able to obtain it more cheaply than the full apparent retail price of £19.79. I am afraid I am not swayed by her point, albeit many people hold it, that she is unwilling to buy the product through a website by mail order. What I propose to do is award a sum based upon 10 bottles a year rather than 12, but multiplied by £19.79, with the appropriate multiplier of 15.45, which I think properly reflects the points made by Mr Lazarus. The result on my arithmetic is an overall sum of Bio-Oil of £3,058.

42.

The next item claimed in relation to cosmetic products was something called Estee Lauder Advance Repair Treatment. By her claim, as now amended, the claimant seeks to recover one bottle of this product for every 3 months over a period of 10 years. This is a product which, according to her, helps to heal scars by softening the tissue. She told me that she only uses it on her facial scar, and she has not been using it much lately as the scar has flattened more than the others. But she said she applied it generally every night. There was no supporting documentary evidence about this particular product. Mr Lazarus submitted that, in the light of this evidence, the claim has all but fallen away and I should make no separate award. Mr Chapman submits that since the claim was, in effect, reduced at the hearing, his now amended claim of one bottle per 3 months over 10 years is reasonable. I am prepared in the circumstances to accept that, given the importance that the claimant attaches to her looks and the skill with which she appears to be able to conceal the worst effects of her facial scar. So I shall award in relation to that item the sum of £2,206, according to a formula that I think it accepted by both counsel, ie the cost of a bottle at £63.62 times 4 times a year, times 8.67 as the appropriate multiplier.”

Mr Lazarus submitted that the award for future loss made by the judge was arbitrary in the sense that there was no supporting evidence for the claimant's own assessment as to what she would do in future nor for its justification. It is clear, in my judgment, from the paragraphs extracted from the learned judge's judgment that he plainly considered the respondent's arguments. He made an award which reflected the efficacy of the products as the appellant reasonably perceived them. He had already observed that the appellant was a level-headed, moderate and truthful witness. I reject the argument that scientific evidence or something like it was required before the judge was entitled to accept the evidence of the claimant herself. I have rejected the argument that the judge's conclusions could be described as arbitrary and not based upon acceptable evidence. He was perfectly entitled to accept evidence of the appellant's personal experience. He made an award which, as a matter of fact, modified and reduced the full effect of the claim. I too consider that the cross appeal has no merit and I would refuse permission to advance it.