On May 2014 after a short trial in the Birmingham County Court Mrs Recorder Wilson awarded damages of £76,234.14 to the appellant, the claimant in a personal injury action which he brings against his former employers. The claim arose out of an accident at work on 17^th September 2009. The appellant was employed as an HGV driver. He was delivering tarmac from a tipper fixed to the back of his lorry. The hydraulic ramp collapsed and the huge resulting impact forced the appellant upwards at speed. His head collided with the roof of his cab causing serious vertical compression injuries to his neck.

The appellant issued proceedings in 2012. Breach of duty was admitted. Causation and quantum of loss were not. These were the matters tried before the recorder.

The evidence and submissions took just over half a day. The appellant gave the only live evidence. There were reports from a spinal surgeon on behalf of the appellant and from an orthopaedic surgeon on behalf of the respondent. Neither was called at trial. Their joint statement was before the court. Voluminous bundles of the appellant’s medical and other records were also in evidence.

The recorder awarded damages as follows:
Pain, suffering and loss of amenity: £19,100
Past loss of earnings: £54,300
Past care (agreed): £1817.10
Prescriptions (agreed): £25
Travel (agreed): £50

The recorder made no award for any future losses. After deduction of the interim payment and CRU benefits she gave judgment in the sum of £72,417.14.

Fresh Evidence

Before hearing argument on the six grounds of appeal, we first considered and refused an application by the appellant to adduce fresh evidence. The evidence fell into two categories:-
a) Medical and other records recording the appellant’s medical condition since trial.

We read the documents de bene esse. The documents in category (a) are described in the appellant’s skeleton argument as “medical records and doctors letters which post-date (fresh evidence) Recorder Wilson’s decision”. Amongst them are three documents which do not come within that description. They are documents which explain the status of education certificates which were before the court below. The content of those certificates was plain on their face, further explanations add nothing to the appellant’s case.

The rest of the documents in category (a) are medical records and letters, all consistent with the evidence before the court below. They demonstrate, as did the evidence at trial, that the appellant continues to suffer from persistent neck pain. He has been re referred to the pain clinic and has received treatment. A letter from the appellant’s GP written just a month after the trial sets out the history again and includes the observation that the appellant had not worked since 2009 because of neck pain. There were at trial copious records for the period from the accident to the date of the trial to precisely the same effect. These documents add nothing to the appellant’s case.

Most of the documents in category (b) were before the recorder. They include a letter from the Department for Work and Pensions confirming the appellant’s entitlement to disability living allowance at the rate of £21 a week because he needs help to cook a main meal. The recorder referred to this in her judgment. A letter from Job Centre Plus dated 8^th May 2013 was not before the lower court. We do not know why. The appellant had given it to his solicitor, he said. It confirms his evidence (which was challenged at trial) that he had been awarded Employment Support Allowance (ESA) for the period 20^th June 2011 to 1^st January 2013. An earlier decision that he was not entitled to ESA had been overturned. The letter made it clear that the ESA would stop on 1^st January 2013. The next paragraph reads, “We have decided that you have potential for work related activity and must take part in work-focused interviews, with a personal adviser to continue to receive Employment and Support Allowance in full. Your adviser will help you to take reasonable steps to move towards work…” This part of the letter coincides with the evidence of the surgeons in their joint report to the effect that as of spring of 2013 the appellant was in a position to apply for some sort of work. It adds nothing to the evidence that was before the recorder.

Unless it orders otherwise, the appeal court will not receive evidence which was not before the lower court, see CPR 52.11(2). The power to admit evidence of events post-trial is exercised extremely sparingly. In determining an application the court must act in accordance with the overriding objective. The principles set out in Ladd v Marshall [1954] 1 WLR 1489 are persuasive as to how the court should approach such an application, given the need for finality in litigation. This application does not even get off the ground; it seeks to adduce evidence of events before and after trial which are entirely consistent with the evidence at trial and consistent with the judge’s findings. It is misconceived. It is not necessary to consider it further.

Mr Jamil, who did not appear below, produced a detailed skeleton argument in support of six wide ranging and somewhat unfocussed grounds of appeal. Stripped to its essentials his case is that errors of law and of fact led to the undervaluing of the claim. As a result

It is convenient to consider the submissions under the headings of loss.

Mr Jamil’s submission, shortly stated, is that an award of £19,100 was woefully inadequate. The schedule pleaded this head of loss at £30,000 and counsel’s submissions at trial were to that effect. Mr Jamil submitted that the appellant’s representatives undervalued the appellant’s claim on general damages in the schedule. He said “that failure should have been noted by the Recorder. In any event, it is submitted that such mistake is of a minor magnitude and should have no prejudicial effect on the outcome of the Appellant’s claim under this heading…”. I did not find this entirely easy to follow. Suffice to say that the recorder was entitled to rely on submissions made by competent counsel on behalf of his client, not least because they were consistent with the correct approach to the assessment of damages for pain, suffering and loss of amenity.

It is regrettable that the recorder did not set out in a structured way her findings in respect of this, or indeed any, head of loss. The fact that the experts were agreed did not remove the necessity to set out in short form the nature of the injuries, the progress of the condition and the prognosis. Had she done so, much of the challenge in respect of this head of damages would have fallen away.

The appellant relied on the evidence of Mr Stewart Tucker, consultant spinal surgeon. He had examined the appellant on 30^th June 2011. Mr Tucker described the initial pain, followed by persistent pain extending from the appellant’s neck to his back, with headaches and associated pain in his left arm and middle and ring fingers. He recounted that the appellant was referred to neurosurgeons and on to neurologists. He received over 30 sessions of physiotherapy. There had been no improvement. He was unable to walk for more than 10 minutes, could not drive for more than 10-15 minutes and was unable to undertake any housework or gardening. Mr Tucker noted significant restriction of movement and widespread muscular pain in the back. MRI scans revealed degeneration of the cervical spine, together with some degeneration of the lumbar spine. It was Mr Tucker’s view that the degenerative changes were present before the accident but had been rendered symptomatic by the accident “there being no past history of significant neck problems”. He recommended referral to a pain specialist for consideration of cervical facet joint injections. As to his ability to work Mr Tucker wrote “if there is no, or indeed only partial, response to the treatment, he will be unable to return to any form of physical work. His position on an open job market would therefore be significantly compromised and the opinion of an employment specialist should be sought.”

In February 2012 the appellant underwent a foraminotomy at C5/6 and C6/7 which led to marked improvement in his range of movement. Pain continued.

Mr O’Hara, consultant orthopaedic surgeon, examined the appellant on behalf of the respondents on 18^th July 2013. He wrote “Mr Pawar has suffered a very serious injury to his neck and we can be quite confident that before this accident occurred, even if Mr Pawar was not particularly conscious of it, his neck was not in pristine condition and was, in fact, quite considerably more degenerate at four levels than would ordinarily be expected in a person of say 40 years of age. He was therefore, at an increased risk of developing symptoms spontaneously, in the absence of the accident and, more importantly, at increased risk of having persistent symptoms following an accident.” In Mr O’Hara’s opinion within approximately seven to eight years, even if no accident had occurred the appellant “would find himself insidiously troubled by neck symptoms, such that he would find himself needing to change occupation. However it is unlikely he would ever have been troubled by symptoms as severe as he has now and the chances of needing the sort of operation he had were relatively small also”.

As to employment, Mr O’Hara had said “it must have become apparent to him that he does not have great prospects for returning to his original occupation and clearly retraining or recertification in skills that he obtained earlier in life might be helpful to him here. It is clear therefore that the accident has put him at some disadvantage in the employment market. However, I believe that within approximately a decade of the original incident that some disadvantage in the employment market was going to occur in any case”.

The experts produced a joint statement on 3^rd December 2013. They noted that “notwithstanding the improvements achieved by the cervical foraminotomy he is still significantly troubled”. They agreed that the appellant was at increased risk of developing symptoms in his neck spontaneously and following the accident he was at increased risk of having more troublesome symptoms persistent after the normal expected period of recovery of say two years.

Mr Jamil persistently submitted that there had been no pre existing condition. This was hopeless. The doctors were agreed. The degenerative changes shown on the scans could not have occurred between the date of the injury and the MRI scan taken in December 2009 which showed chronic degenerative changes in the neck. It is entirely usual that such changes are symptom free for years. The experts agreed that within seven to eight years of the date of the accident “the appellant would have found himself insidiously troubled by neck symptoms and that would probably be enough to cause him to change occupation. We acknowledge also that he would have been troubled by symptoms that were less severe than he has now and it was unlikely that he would need an operation”. This echoed Mr O’Hara’s assessment which I set out at the end of paragraph 17. They went on to say “we disappointed (sic) to note than in the more than four years since the original incident he has not yet considered how to get himself back into the job market….We also note that by the spring of 2013, within approximately a year of his operation he was eligible to apply for sedentary or semi sedentary work”.

The recorder concluded, having considered the evidence and submissions, that the injuries came within Chapter 7 of the Judicial College Guidelines, section A, Neck Injuries, category (b) Moderate, sub paragraph (i) i.e. the highest section of the category which reads:-
(i) Injuries such as fractures or dislocations which cause severe immediate symptoms and which may necessitate spinal fusion. This bracket will also include chronic conditions, usually involving referred symptoms to other parts of the anatomy or serious soft tissue injuries to the neck and back combined. They leave markedly impaired function or vulnerability to further trauma, and limitation of activities.

Mr Jamil sought to persuade us that the injuries came squarely into the severe bracket. They do not. He further submitted that the recorder should have made separate significant awards for the symptoms in the arm, back and hand and then aggregated them with the award for the neck injury. This was unarguable. The elbow injury is unrelated to the accident, as the medical evidence makes clear. Other neck related symptoms took the damages into the bracket the recorder identified.

The range of damages within this bracket is £18,350 to £28,300. The recorder awarded £19,100. She was not in error to do so. It is to be noted that the lower category, (ii), includes “injuries which have accelerated a pre-existing condition...usually by five years or more.” Category (i) makes no reference to acceleration of symptoms. The focus is on injuries sustained by a previously uninjured person. In placing the appellant’s case in b (i) the recorder took account of the serious nature of the injuries but was bound to place it at the lower end of the bracket given the pre existing degenerative changes. There may be situations where even where symptoms have been accelerated, the seriousness of the injury is such as to take the award up to the top of category (i) but this is not such a case.

It was not in dispute that because of the accident the appellant was unable to work at all between 2009 and the spring of 2013, three and a half years. Another year had elapsed before trial. During some of the early part of that period he had received statutory sick pay which fell to be deducted from any award. He had also received an award of damages from an employment tribunal for his unfair dismissal by the respondent. This included payments for post-accident wages and holiday pay which was also deducted. The issues between the parties were i) the amount of the weekly loss ii) whether and if so, when, he had become fit for work iii) to what extent he had mitigated his loss.

The recorder accepted the respondent’s submission that she should calculate the loss of earnings on the basis of the appellant’s basic weekly earnings as at 2009, £300 a week, £15,600 a year with no increases between 2009 and 2013. Whilst she did not explain why she made no award in respect of pay rises nor why she made no award for loss of overtime the evidence on the issue was unclear and there is no basis for interfering with that decision.

The recorder initially assessed past loss of earnings at £56,300 to which she added £2,000 which she thought was payable because she had misunderstood the respondent’s submissions about the compensation awarded by the employment tribunal for loss of earnings. When this was explained to her again she deducted the £2,000 instead of adding it. Mr Jamil submits that “the deduction of £2,000 twice, namely £4,000 was deducted in the actual sense, which makes her calculation manifestly wrong and therefore call for this court anxious scrutiny.” This argument is misconceived. The recorder made a mistake and corrected it.

The recorder found in terms that the appellant had done nothing to mitigate his loss. That was a finding she was entitled to make in light of the agreed medical evidence. She had heard and seen evidence that when he was in his twenties the appellant (born 14^th August 1968, 45 at trial) had completed two years of a degree in India and had some qualifications in basic electrical work. She rejected the assertion in the schedule that he was lacking in administrative and cognitive skills on the basis that he had “done nothing to find out if he has any”. She acknowledged that he needed help to prepare a meal but concluded that he was not disabled. She observed “he is a young man and if he chooses to do nothing and not seek employment then certainly that is his right but he cannot do so at the expense of others.” The appellant accepted he had not looked for work. He said, and it was not disputed, that he was in pain. The recorder expressly accepted that at the beginning of her judgment. The cause of the pain was the accident. The appellant was taking medication that made him drowsy, his GP had signed him off work because of the pain in his neck. The appellant did not accept the view of the experts that he could have looked for work from the spring of 2013 but his counsel specifically said that he did not seek go behind the joint statement. In those circumstances it was not open to Mr Jamil to argue that the recorder should have ignored the joint statement.

The fact that a claimant does not mitigate his loss does not mean automatically that he recovers nothing. It means he is not entitled to recover in damages sums which he would have earned had he mitigated his loss. The burden of proof on that issue is and was here on the respondent.

The recorder said that she accepted the submissions of the respondent. In the counter schedule the respondent had pleaded that in the year March 2013 to March 2014 had he mitigated his loss the appellant would have earned £12,000 i.e. the annual national minimum wage. For that year, it was pleaded, he was entitled to recover only the difference between what he would have earned uninjured (£15,600) and what he could have earned (£12,000) i.e. £3600 per annum.

The fundamental difficulty with this approach was the agreed evidence of the experts which was not that as of March 2013 the appellant was in a position to work, it was that he was in a position to look for sedentary or semi sedentary work, as the recorder observed earlier in her judgment. There were a number of factors that would have reduced his chances of obtaining work within a short time of beginning the search: his sickness record, the fact that he was still in pain and taking medication which made him drowsy (all of which the recorder accepted) and the length of time since he had worked. On any view he would have had to undergo retraining of some duration. Given all of those matters it was overwhelmingly likely that it would have taken time to find work during which period he would have been entitled to his loss of earnings at the full rate. The recorder did not deal with this issue. This was an error. I deal with it now. Given the lengthy period of unemployment and the need to obtain further skills I consider it reasonable to allow a period of 8 months for the appellant to have found work. He is entitled to recover damages for his loss of earnings for the period from March 2013 to November 2013 at the rate of £15,600 per annum, £11,700. Thereafter I accept the respondent’s pleaded case that he would have secured employment at the minimum wage, £12,000 per annum and so his recoverable loss from December to trial was 6 months’ earnings at the annual rate of £3,600 to trial, £1,800.

It was the respondent’s case that there was no future loss because the appellant could have obtained better paid work. Mr Browne argued that this would have been sedentary work but there was no evidence of what the work might be or what would be the rate of pay. It was pleaded in the appellant’s schedule that he would have earned the minimum wage. The respondent had accepted that in the counter schedule, albeit for one year only. The recorder said. “As I previously said, Mr Pawar has done absolutely nothing to mitigate his loss and on the expert evidence before me any loss of earnings would cease in March 2017”.

The recorder concluded that the claim for loss of earnings from trial to March 2017 was extinguished because of the failure to mitigate. She was wrong to do so. In the absence of any evidence to this effect it was not open to the recorder to conclude that the appellant would have earned more in sedentary work than as an HGV driver. That he would have started at the minimum wage was agreed. In those circumstances I am satisfied that the loss was the difference between his pre accident earnings and the minimum wage, £3,600 per annum. I adopt the multiplier pleaded, 3. The correct award for loss of earnings to March 2017 was £10,800.

Loss of Earning Capacity beyond March 2017

The position beyond March 2017 was much more uncertain. The experts agreed that from that date the appellant would not have been able to work as a HGV driver in any event. They also said that his continuing symptoms were more severe than they would have been had the accident not occurred. There was no evidence of, or thought given to, whether and to what extent this meant that there was a residual and enduring loss of earning capacity attributable to the accident over and above the loss attributable to his pre existing condition. In those circumstances it would not be right for this court to try and assess it. It would be quite impossible to identify with any accuracy a multiplicand to which we could apply a multiplier in accordance with the modern practice. I have considered whether this is one of those cases where the approach adopted by this court in Blamire v South Cumbria Health Authority [1993] PIQR is still appropriate. I am satisfied that it is not. In the absence of any evidence, assessment would be entirely speculative. The recorder was right to make no award for this period.

Past Loss of Services

The recorder rejected this claim thus, “I have considered carefully the question of past loss of services and indeed future loss of services. Neither of these heads were claimed when the proceedings began and in any event there is no evidence in support of the figures before me. So far as these figures are concerned, I would say that £1,000 per annum, or even £650 or £500 as Mr Pawar told me, seems to be an awful lot of money for DIY, heavier household and gardening tasks but they cannot be supported and I make no award. I also bear in mind that this is a two person household.”

The original pleading did not include a claim for loss of services but Mr Tucker referred in his report in 2011 to difficulties with gardening and housework. In 2013 Mr O’Hara referred to the fact that the appellant did not do as much around the house as he used to. What mattered was not the stage at which it was pleaded but whether or not the claim, conventional in type and modest in quantum was made out on the evidence. There was evidence from the appellant and the experts that he was unable to do as much as he used to. As to the figures, the appellant was asked about them, apparently for the first time, in re examination when he was asked to give a “rough estimate” of the annual sum. He replied that he thought it was between £600 and £700. Although she does not say so in terms it is plain that the recorder did not accept this figure. Given the state of the evidence on the topic she was entitled to take that view. Even where the sum sought is modest and the claim conventional the burden of proof remains on the claimant. It was not discharged in this case.

This was a hopeless claim. There was no evidence that private physiotherapy had been obtained in the past. There was no evidence that physiotherapy would be of any use in future and none was prescribed. I say no more about it.

To the limited extent I have identified I would allow this appeal. There were many other points that Mr Jamil raised in his skeleton argument in which he cited many authorities. It was not necessary to refer to any of them to determine the issues on this appeal.

At our invitation the parties have made written submissions on interest and on costs in light of the draft judgment.

We have not increased the award of damages under this head. Mr Jamil submits that interest should run from the date of the accident, 17^th September 2009 to the date of judgment in the Court of Appeal. Mr Browne argues that interest should be awarded up to the date of trial from the date the claim form was served, 12^th December 2012. This is the conventional start date (see Jefford v Gee [1970] 2 QB 130) and we are aware of nothing in the pre action history to support an argument that interest should be awarded in respect of the earlier period, given that the medical prognosis was unclear for some time. The appropriate rate is 2% (see Birkett v Hayes [1982] 1 WLR 816). Mr Browne argues that the period should end at the date of judgment in the trial because the appellant should not be compensated when his appeal has failed. This is to miss the point of the award of interest which is not compensation but recognition that the claimant has been kept out of money to which he is entitled. Although there was a stay in respect of enforcement of part only of the damages (£40,000) imposed by District Judge Bull on the Respondents’ application to protect their position on costs it is not apparent that any monies have been paid. Accordingly we award damages on the award for pain suffering and loss of amenity at the rate of 2% per annum from the date of service of the claim form to 10^th June 2016.

The total award for loss of earnings up to the date of trial is now £67,800 (£54,300 awarded at trial plus two further sums of £11,700 and £1800 as set out above). That part of the award for future loss of earnings which relates to the period May 2014 to June 2016 is now past loss of earnings as a result of the passage of time between the pleadings and the award on the appeal. It should be added to the figure for past loss. Mr Browne’s submission that it is future loss is not tenable. We assess this figure as 25/36 of the £10,800 awarded: £7,500. The total loss of earnings figure is therefore £75,300 to which are added the agreed sums awarded for travel, prescriptions and care (total £1,892.10) to give a total figure for special damages of £77,192.10.

It is long established that where special damages are incurred, as here, throughout the period up to trial interest is payable at one half of the special account rate of 0.5% (ie 0.25%) from the date of the accident to the date of judgment. In this case that is from the 17^th September 2009 to the date of hand down.

The remaining 11/36 of the award, £3,300, is truly future loss for the period July 2016 to March 2017 and so attracts no interest.

On 5^th February 2014 the respondents made a Part 36 offer in the sum of £80,000. It was refused. A further offer was made on 1^st May 2014 in the sum of £129,332. This too was refused. The appellant failed to beat either Part 36 offer at trial. As a consequence the recorder ordered that the costs up to 27^th February 2014 be paid by the respondent, thereafter they were to be paid by the appellant. Mr Browne accepts that the costs order below must be amended because the appellant has now beaten the first Part 36 offer. He submits that the respondent should be liable for the cost of trial up to 23^rd May 2014 (the expiry of the time for acceptance of the second Part 36 offer). Mr Jamil submits that there is no copy of the respondents’ offer to settle in the sum of £129,332 and so it should be ignored. It is a very great pity that a copy of this offer was not provided to Mr Jamil but his client was plainly aware of it, as was the recorder who made the costs order. I have recently seen a copy of the offer which was also copied to Mr Jamil by email. It is referred to also in the judgment of District Judge Bull on 24^th June 2014, of which I have now seen a copy. District Judge Bull was dealing with an application for a stay on enforcement of payment of £40,000 of the damages to protect the respondents’ costs position, given that the ATE insurance had been cancelled because the appellant had rejected counsel’s advice to accept the sum of £129,332.

I accept Mr Browne’s submission on the costs of the trial: the respondent is liable for costs on the standard basis to be assessed if not agreed up to close of business on 23^rd May. The balance of the trial costs are to be paid by the appellant.

The parties agree that the general rule is that an unsuccessful party will be ordered to pay the costs of the successful party – see CPR 44.2 (2)(a). Mr Jamil submits that his client has succeeded. His award of damages has been increased. He is entitled to his costs. Mr Browne says that in reality the respondents were the successful party.

Mr Browne concedes that the rules governing offers under CPR Part 36 apply to the costs of the proceedings in which they are made, not the costs of the appeal. Nonetheless he submits that pursuant to CPR 44.2(4)(c) the court should consider the Part 36 offers, particularly the offer in the sum of £129,332 when assessing who is the real winner on the appeal. Had the appellant accepted that sum he would have been better off than he is now by some margin. He further points to the number of hopeless arguments that were run on the appeal. He also refers us to a letter dated 20^th November 2015 from his solicitors to the appellant’s solicitors. It is marked without prejudice save as to costs. It explains that the respondents do not consider mediation appropriate because i) the appellant had refused to accept the reasonable offer of the respondent ii) he had parted company with his ATE insurer because he had refused to accept counsel’s advice on the Part 36 offer iii) he had made no offer to settle. The letter, a copy of which was received by the court in recent days, was sent to the appellant’s previous solicitors. Mr Jamil confirmed today that he had not previously seen it. In any event the letter does not take the matter any further.

In January 2016 the appellant’s solicitors offered to settle for £220,000. This was hopelessly unrealistic and would support the submission that had the respondents offered some further reasonable sum it would have been rejected. In fact they did not make any offer, even though the sum awarded by the recorder was significantly below the sum they had previously considered reasonable. It is inescapable that the appellant has demonstrated some errors in the recorder’s approach and this court has increased the award of damages to him by about one third. He has already been significantly penalised in costs for his unreasonable refusal to accept the respondents’ offer of May 2014. Whilst the amount he has recovered on appeal falls short of the second offer by some margin that offer was not open to him after May 2014. In order to improve his position it was necessary for him to pursue the appeal (for which he had permission on all grounds) to its conclusion. In those circumstances I consider that he is entitled to recover his costs of the appeal to be assessed if not agreed, subject to two caveats:-
i) the appellant may not recover his costs of the application for permission to adduce further evidence. It was misconceived.

the appeal bundles prepared by the appellant’s solicitors were chaotic. Alternative bundles were prepared by the respondents for use by the parties and the court. Accordingly the costs of preparing the appeal bundles are to be the respondents’ in any event, to be assessed if not agreed.

I agree.

I also agree.