APPEALING AWARDS FOR PAIN AND SUFFERING IN PERSONAL INJURY CASES: THE APPELLANT’S UPHILL STRUGGLE

December 13, 2019 · by · in Appeals, Damages, Personal Injury

The second aspect of the judgment in Essex County Council & Ors v Davies & Ors [2019] EWHC 3443 I want to look at is the defendants’ appeal in relation to damages.  This case reiterates the difficulties (for claimants and defendants) appealing an award for pain, suffering and loss of amenity, by a trial judge.

 

THE CASE

The judge was considering the defendants’ appeal on certain issues relating to a group of claimants suffering carbon monoxide poisoning.   One of the grounds of appeal was that the awards made by the trial judge were to high.

A REMINDER OF THE PRINCIPLES IN FLINT -v- LOVELL

The judgment makes a reference to the Court of Appeal judgment in Flint v- Lovell [1934] All ER Rep 200

“To justify reversing the trial judge on the question of the amount of damages it will be necessary that this court should be convinced either that the judge acted on some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this court, an entirely erroneous estimate of the damages to which the plaintiff is entitled. The result is that the appeal will be dismissed, with costs.”

 

THE JUDGMENT ON THE DAMAGES APPEAL IN THE ESSEX COUNTY COUNCIL CASE

The defendants’ arguments  on this issuewere robustly rejected by Mr Justice Saini.

IV. The Damages Appeal
    1. The essential argument in relation to this appeal was simple. It is said by the Appellants that the sums awarded by way of general damages were excessive (given the absence of physical damage) when compared with other brackets in the JC guidelines (14th ed.) on the assessment of damages.
    2. It was accepted however that there were no specific guidelines addressing the injuries in issue and comparators were of necessity approximate. I asked Counsel for the First and Third Appellants at the outset of his oral argument what the alleged error of law was in relation to the Judge’s decision on what was essentially a factual question on general damages. He candidly accepted that the basis of this appeal was that the amounts were simply too high. He also accepted that the amount by which he submitted the awards should be reduced (one third) was essentially arbitrary.
    3. That acceptance was both appropriate and telling. If one can arbitrarily “knock off” one third of the damages what is the appealable error in the Judge having decided to award that extra third? For the reasons set out below I have no hesitation in dismissing this appeal having had regard to Flint v Lovell [1935] 1 KB 354 at p.360, and to the principles which guide a court on such an appeal as summarised in McGregor on Damages (20th Edition) at para. 53-026.
    4. The Respondents clearly suffered serious symptoms during their periods of exposure to carbon monoxide (“CO”). Their symptoms varied and included severe headaches, nausea, lethargy, irritability, vomiting and loss of concentration in association. In particular, the Judge had the benefit of extensive cross-examination of all Respondents with reference to their lifetime medical records and their occupational records. Furthermore, it is clear from the Judgment that the Appellants (who were determined to minimise the effects of the CO poisoning) left no stone unturned. That enabled the Judge to have full insight into the daily effects of the Respondents’ exposures to CO.
    5. As well as being taken to the medical and occupational records and receiving full accounts of the context of the various entries therein, the Judge also had the benefit of assessing the witnesses for himself and understanding the wider effects and impact of their exposure to CO.
    6. In those circumstances, the Judge’s assessment of PSLA derived from the application of his findings of fact and his impression of the Respondents in the context of the recorded contemporaneous and expert medical evidence, gave him a unique position. I cannot “second-guess” his assessments unless they fell outside the bounds of reasonableness.
    7. The awards were:
Respondent
Award
Period of Exposure/Symptoms
Paragraphs of Judgment
Davies
£15,000
26 months
233-239
Collins
£7,000
12 months (symptoms ‘also caused’ by unrelated matters)
273-276
Ramsey
£10,000
12 months
303-307
Rodway
£10,000
7 months (followed by five months of anxiety from her concern her unborn baby may have been harmed)
330-335
Brewer
£10,000
24 months intermittently (part time employee)
366-372
Westley
£10,000
10 months severe exposure, 14 months intermittent exposure
402-407
Townsend
£10,000
12 months
428 – 431
Cullen
£8,000
8 months
451-454
Chantler
£15,000
26 months
482-486
  1. In my judgment, the Judge’s approach to the specific case of each Respondent was exemplary. Each Respondent’s award followed a detailed evaluation of their circumstances on an individual basis. The Appellants’ arbitrary “lopping off” of one third from each award is unprincipled and I find no assistance in support of it in the other guidelines to which reference was made concerning asthma, head injuries or psychiatric injuries. The Appellants have not advanced before me any judicially applicable standard by which I can conclude that the awards were excessive. They may be generous but they are not capable of being disturbed on appeal.

 

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