PROVING THINGS 242: THE CLAIMANT WHO WAS GIVEN A SECOND CHANCE TO PROVE HIS DAMAGES CLAIM

We are looking again at the judgment of Mr Justice Julian Knowles in Allard v Govia Thameslink Railway Ltd [2024] EWHC 2227 (KB).  This was looked at earlier in relation to the trial judge’s observations about the wholly inadequate counter-schedule.   However there was another interesting aspect of this case.  The trial judge’s decision to give the claimant another chance to prove his claim for special damages.

“In many cases, a submission of the kind addressed by Ms Allen might find some sympathy. A trial of liability and quantum ought to yield a final result.”

THE CASE

The judge was hearing an appeal by the defendant in relation to the award of damages in a personal injury case.  One aspect of the appeal was the trial judge’s decision to give the claimant an opportunity, after the trial, to provide further evidence in relation to the claim for financial losses.

THE SECOND CHANCE

The defendant had filed a counter-schedule that simply denied everything on the grounds of causation.   The claimant succeeded on the issue of causation.  The trial judge felt that there was inadequate evidence to prove the claim for losses, primarily loss of earnings and a Smith -v- Manchester claim. After the trial he gave the claimant an opportunity to prove the claim by filing an affidavit relating to his earnings and position in the labour market.

COMMENTARY

The trial judge felt that further evidence was needed because the witness statement did not have a statement endorsing the figures in the Schedule of Damages.  However on appeal it appears to be common ground that this was unnecessary, the Schedule having its own statement of truth. The reality was that the Claimant’s witness statement failed to give any evidence to support the claim for loss of earnings and disability in the labour market. It was this omission that the judge allowed to be rectified.

A VERY LUCKY CLAIMANT INDEED

It is difficult to stress how lucky the claimant, or claimant’s solicitor, was.  If there is to be a legal profession syndicate for the national lottery there can be no doubt that this person should be given the task of selecting the numbers.  In the majority of cases a claimant who fails to present evidence of damages at trial will go uncompensated.

THE DILEMMA THAT THE TRIAL JUDGE FACED

The trial judge was faced with a counter-schedule that simply denied causation.  However he did not have the evidence upon which to make an award for special damages.

1. 1. “Accordingly, C was required only to prove his loss and damage.

1. 1. The trial concluded on 4 April 2023. On the final afternoon of the trial the Recorder indicated that he did not believe that he was going to be able to reach findings on quantum based upon the evidence before him, He suggested three options:

a. that he accede to D’s submission that there was no evidence supporting quantum; or

b. that he assess quantum on the basis of the documents before him and on the basis that there was a verification of the schedule in the statement of case, or

c. that that he say that he was unable to deal with special damages at that time.

1. Both counsel for C and counsel for D requested that the judge select option (b). Counsel for the D submitted that this would then (in effect) lead to option (a). Counsel for the C that if option (b) were held not to be possible, option (c) would be preferable.”

THE RECORDER’S JUDGMENT

The judge decided to give the claimant a second chance.

With regard to special damages, I have already noted what I consider to be the defect in the evidence of Mr Allardy in that it does not, apart from the statement of truth, verify his schedule which it ought to have done even if the verification was relatively cursory. I have already noted the mere non-admission by GTR of the schedule when its case was actually there was no loss and nothing else. That non-admission is, in part at least, highly unfortunate because the response of GTR ought to have been to deal, so far as it could, with the schedule if, which it denied, its breach of duty and negligence had caused Mr Allardy’s injuries. Unlike a case where a stranger’s actions have caused losses, GTR was Mr Allardy’s employer. It was in a position to admit or challenge what he said as to his earnings as well as the pension contributions allegedly lost. Very often, the employer will be better able to do this than the employee. The only head to which this does not apply is earnings for which credit has been given by an employer named Elite.

84. Both Mr Kennedy and Ms Allen make the same primary submission that I should proceed to make my assessment on the evidence as it stands. In Mr Kennedy’s case, he says that the verification of the schedule by the statement of truth should be enough in the circumstances. His fall back position is that if I am against him in this regard, I should permit further evidence of a formal nature to verify the losses. In Ms Allen’s case, she asks me to find that the evidence does not prove the special damages so that I should find no loss. She says it would be unjust and prejudicial to GTR to permit any further evidence, even of a purely formal kind.

85. I do not find either Mr Kennedy’s primary submission or Ms Allen’s submission to be attractive. In my judgment, both submissions risk wholly unnecessary injustice which can be speedily and cheaply avoided. If I make an award in favour of Mr Allardy but he truly is unable to prove the losses in the schedule, the injustice would be to GTR. If I refuse to receive formal further evidence, the injustice would be to Mr Allardy because I am sure that there were financial losses which he has suffered.

86. In many cases, a submission of the kind addressed by Ms Allen might find some sympathy. A trial of liability and quantum ought to yield a final result. What is unusual is the difficulty caused by GTR having maintained its denial of breach of duty and negligence as well as asserting contributory negligence right to the eve of the trial. I have some sympathy of a limited kind in Mr Kennedy having believed that that special damages were accepted by GTR if the Court found that injury was caused. I have noted that even Ms Allen’s skeleton argument dealt with special damages only briefly – in paragraph 11. Her skeleton did not take the proof point which I myself raised rather than asserting the losses were not attributable to the exposure or that the losses were short term with no special damage prior to 27 April 2018. I can well see why this confirmed Mr Kennedy’s impression that the damages were admitted if I found as I have. I have also noted that Ms Allen did not seek to deal with any issue of quantum with Mr Allardy whilst he was in the witness box. The non admission would have entitled her to do this although it would not have entitled her to raise a positive case or to lead evidence.

87. I have decided to exercise my discretion to permit further formal proof from Mr Allardy as to his losses if, in the light of my findings, they cannot be agreed as to quantum, albeit that can be without prejudice to GTR’s denial that any loss was caused. I will hear submissions when judgment is handed down as to when and how this proof should occur and the scope of any questioning which is proposed. If it is agreed that some course is appropriate such as an affidavit verifying the losses, I am likely to accept that course.

88. I have not yet dealt specifically with a Smith v Manchester award. My factual findings that Mr Allardy’s prospects for employment have been affected by his injury suggest that such an award may be appropriate. However, I see no reason to decide that or its quantum until the formal proof is taken as I need to be open minded to the possibility that something may emerge which affects whether such an award is appropriate at all or its quantum. An example might be if Mr Allardy had found suitable and secure permanent employment in which the prospects of exposure to volatile solvents was avoided.

(5) Disposition

89. I find in favour of the Claimant and will award general damages in the sum of £27,000. I will exercise my discretion to allow further formal evidence verifying the special damages claimed. I will hear submission when this judgment is handed down in Court on how and when that will occur. I will also hear submissions on costs as well as any other application which the parties make.”

1. 1. The judge heard submissions on 3 May 2023. He ordered in [6] of his order dated 4 May 2023 that that formal evidence should take the form of:

 

 

“… an affidavit verifying the schedule of losses dated 27 April and deal[ing] with any other earnings that the Claimant has received in the period after 4 February 2020 from the employer named Elite or from any other employer since that date”.

THE DEFENDANT’S UNSUCCESSFUL APPEAL AGAINST THIS DECISION

The defendant’s appeal against this decision was refused.   The decision was unusual but so was the situation that the Recorder faced with the absence of any substantive counter-schedule and no challenge to the claimant’s claim for damages.

1. 1. In relation to Ground 2, it seems to me that the judge was faced with a difficult and unusual situation (which Mr Kennedy accepted) in how he managed C’s special damages claim, for the reasons he explained. In considering what the judge did, I bear in mind the decisions that have emphasised the importance of supporting first-instance judges who make robust but fair case-management decisions: see eg Re TG (A Child) [2013] EWCA Civ 5, [24]-[38].

1. 1. There were points that could be made both ways, and the judge carefully dealt with them. That said, I think there is merit in Ms Allen’s submission that the judge was wrong in considering that something more than a statement of truth was required to verify C’s Statement of Loss. As she said, the Schedule of Loss was accompanied by a signed statement of truth by C in accordance with CPR r 22.1 and the Practice Direction thereto. The veracity of the statement of truth was not challenged at any time by D and there were no defects in its form: the wording used within was identical to that set out at CPR PD 22, [2.1]. There was accordingly no need for a further affidavit and no defect in verification to be remedied. Mr Kennedy agreed.

1. 1. On the other hand, I think the real nub of D’s complaint under Ground 2 was the opportunity the judge gave to C to adduce further evidence in support of his case. This was the core of the judge’s reasoning in [85] of his judgment (set out earlier).

1. 1. After careful consideration I have decided that in making this order the judge was doing his best as he saw it to do justice to both sides, for the reasons he gave. I accept that point made by D that it was for C to prove his damages claim and if his evidence was inadequate, then he might have had to bear the consequences. On the other hand, the judge was plainly critical of aspects of how D had presented this part of its claim. During the hearing on 3 May 2023 the judge said:

“We have been through a trial on this. We have been through a trial with an opportunity to cross-examine and, to my recollection, not a single question was asked about any of this. You see, it may be that although I am critical that the claimant’s evidence did not tackle this head on, I am very critical also of the defendant’s approach, the silence on it.”

1. 1. I do not think the judge erred in the exercise of his case management discretion in relation to the order he made in [6] of his post-trial order (or in [7] and [8]) allowing further evidence in a way that would allow me to intervene. Ms Allen made a point that C’s stance on special damages and lack of evidence in support might have affected her client’s stance on Part 36 offers. I do not know whether there were or are any, but as Mr Kennedy said, if this is a good point, it can still be taken into account at the suitable time. Mr Kennedy made clear that C is not claiming for loss of earnings beyond what is pleaded (save as relevant to a Smith v Manchester award). He said the order the judge made was fairly limited and proportionate and I agree. Overall, I consider what the judge did in the fairly novel situation in which he found himself falls within [112] of Lord Kerr’s judgment in Re B:

“112 Where what is under review by an appellate court is a decision based on the exercise of discretion, provided the decision-maker has not failed to take into account relevant matters and has not had regard to irrelevant factors and has not reached a decision that is plainly irrational, the review by an appellate court is at its most benign. Truly, in that instance, an appellate court which disagrees with the challenged decision of the judge will be constrained to say, even though we would have reached a different conclusion, we cannot interfere.”

1. I therefore reject Ground 2.