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Evans v Tarmac Central Limited, Court of Appeal, 12 December 2005

14 March 2006
The issues

Case Management – Importance Of Medical Evidence Being Clear Enough For Trial Judge To Take A View – Smith V Manchester – Disadvantage On The Labour Market – Hernia Injury – Whether Claimant Would Have Suffered Hernia In Any Event

The facts

The Claimant suffered a right side herniation of his lumbar disc at level L4/5 after an accident at work on 23rd March 2001. The Defendant compromised liability at 75% allowing a 25% discount for contributory negligence. The matter came before the Judge on the issue of quantum only. The Judge awarded inter alia future loss of £29,000.00 on the basis of a 14.72 multiplier making no deduction for the possibility that the Respondent might have suffered a disc herniation before aged 65 in any event; and an award of £30,000.00 for Smith v Manchester. The Defendant appealed on the basis that the medical evidence supported the contention that the Claimant would have had a hernia in 2 years in any event and also against the award of Smith v Manchester on the basis that it was excessive.

The decision

1. The evidence of the expert was “delphic” and not wholly clear. Certain things were clear; that there was evidence of pre-existing degeneration in the lumber spine; that the degeneration predisposed the Claimant to back pain; and that symptomatic disc herniation might be triggered by a relatively innocuous event such as bending, coughing or sneezing. Although it was not entirely clear it appeared that a proper reading of the evidence was that there was more than a fanciful possibility that the Respondent would suffer symptomatic disc herniation although it was not inevitable that he would do so.

2. There was nothing to support the Defendant’s argument that the herniation would have occurred within 2 years in any event. However the Claimant’s vulnerability to disc herniation should be reflected in the multipliers. In the absence of any fresh evidence the Court of Appeal was in as good a position to asses the value of the risk as a Judge at a fresh Trial would be and it was a matter of impression and broad justice. A multiplier of 11 would be substituted for the multiplier of 14.72.

3. Counsel it was noted had applied for leave to put further questions to the expert but that leave had been refused. The expert did not give oral evidence. The state of evidence should not have been left where it lay. It should be noted that in making decisions to ensure a proportionate use of resources, Trial Judges need to keep a whether eye in the elementary necessity that there must be evidence enabling the Court to decide the matter fairly.

4. The Claimant continued to work at the quarry. The Defendants argued that no Smith v Manchester award should have been made because there was no evidence that the Claimant was at risk of losing his job.

5. There are two elements to a Smith v Manchester award; that there had to exist a substantial risk that at some point in his working life the Claimant would find himself on the open labour market, and that the disability that the Claimant suffered from and which was caused by the Defendant’s negligence put him at a disadvantage on the open market compared with an able bodied competitor.

6. The argument that there must be positive and specific evidence that a Claimant may be put on the open labour market before a Smith v Manchester award can arise was putting the matter too high. As common sense suggested the danger of losing one’s job was in many circumstances and for many people one of the vicissitudes of life which had to be faced and which were always a lively factor in the assessment of personal injury damages. The absence of positive evidence to the effect that the Claimant might lose his job was not fatal to the claim. However, such a claim would be likely to be assessed at a much lower figure than where such evidence was available.

7. As to the second element of the case, there was substantial evidence that if the Claimant were put on the market he would be at a disadvantage.

8. Thus, there was no particular evidence as to the risk to the Claimant’s job but if in fact thrown on the market he would be at a substantial and not merely a minimal disadvantage. The absence of any particular evidence as to the likelihood of his losing his job meant that the award of £30,000.00 was too high. The Judge was estimating the prospects of a contingency arising as to which there was no specific evidence. Some allowance had to be made for it as a real and not a fanciful vestitude of life but the Court leant against speculation where there should be proof. The appropriate award would be £10,000.00.

Appeal allowed to that extent.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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