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Smithhurst v Sealant Construction Services Limited, Court of Appeal, 3 November 2011

14 November 2011
The issues

Gregg v Scott – causation – special damages – ‘but for test’ – acceleration

The facts

The claimant was employed by the defendant as a concrete diamond core driller. His work involved the handling of heavy equipment. He used a van. The locking mechanism of the rear door was defective and meant that it could not be opened from the outside. To open them he had to go through the front seats into the back. On the 16 March 2006 he was doing this and manoeuvring barrels of water in the van to get access when he suffered a massive prolapse of the disc between the fifth lumbar vertebra and the first sacral vertebra (L5/S1).

Although the disc was removed his symptoms did not improve and he continued to suffer pain in his back and legs and other symptoms and as a result was incapable of working. The defendant admitted liability subject to a small reduction for contributory negligence. The matter went to an assessment of damages.

The only dispute was as to whether or not the claimant would have suffered a similar injury in the future and if so when. The claimant’s medical expert said there was no reason to expect that he would have suffered such a prolaspe at any time in the future. The defendant’s medical expert thought he would likely to suffer such a prolapse with much the same consequence within two years. The claimant argued that if there was a significant risk that he would have suffered a similar injury in the future the right course was to assess that risk and reduce his damages by an amount appropriate to reflect it and relied, amongst other cases Gregg v Scott. The defendant argued that the matter was one of causation and had to be determined on the balance of probabilities. The defendant therefore said the damages should be assessed on basis of a two year acceleration. The judge found for the defendant on the issue. He found that the appropriate test was the ‘but for’ test and it was wrong and probably impossible to apply a loss of chance analysis. As between the medical experts, the judge preferred the evidence of the defendant’s expert who had greater experience of this kind of injury.

The decision

There was an important distinction between proof of damage and assessment of damage. Damage was an essential element of the cause of action in negligence and therefore as part of establishing liability on part of the defendant, the claimant had to prove on a balance of probabilities that the defendant’s act or omission caused the harm in respect of which he claimed. If he failed to do so, the claim would fail.

Assessment on the other hand involved determining the extent of the loss suffered by the claimant, a distinction emphasised by Lord Hoffman in Gregg v Scott. The former was an issue of causation and the latter an aspect of the assessment of damages. In Davies v Taylor, Lord Reid had explained the approach:

“when the question is whether a certain thing is or is not true – whether a certain event did or did not happen – then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen … The standard of civil proof is balance of probabilities. If the evidence show a balance in favour of it having happened then it is proved that it did in fact happen … You can prove that a past event happened, but you cannot prove that a future event will happen … all you can do is evaluate the chance.”

The assessment of damages is imprecise and what was required was a method of assessment that was fair to the claimant and took proper account of the evidence before the court and the way in which the case was presented. In principle when considering what the future would hold for the claimant had he not been injured by the defendant, the court should approach the matter by assessing the relevant risks or chances. However, that may call for a much more sophisticated enquiry than the court is equipped to perform. In many cases as had been said in Kenth v Heimdale Hotel Investments Limited by Laws LJ, the acceleration method though less refined would be fair to the claimant if it properly reflected the medical evidence. On the evidence, the judge had been entitled to prefer the defendant’s expert to the claimant’s. Although the judge had taken the wrong approach looking at the assessment in terms of causation rather than assessment proper, the evidence supported the course he took, although it was for the wrong reasons. It supported the conclusion that the chances of the claimant suffering a similar injury in the future existed from the moment of the accident and rose progressively to near certainty by the end of two years. A detail evaluation of the chances that the claimant would have suffered a similar injury at any point in his working life might lead to a different award of damages but that did not mean it was wrong to adopt the acceleration approach. As had been noted in Kenth the use of the acceleration method involved an element of swings and roundabouts. An excessively analytical approach to the assessment of damages was not to be encouraged in cases of this kind and where the medical experts had not attempted to forecast in statistical terms the chance of a similar injury would have occurred at different times in the future, the judge would not have been provided with the means to carry out a proper assessment of the risks involved. In those circumstances provided that the judge was careful to ensure that the cut of date fairly reflected the medical evidence, the acceleration approach could quite properly be adopted.

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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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