LANGFORD v HEBRAN & ANR. [2001] EWCA Civ 361

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (The Hon. Mr Justice Klevan).
[2001] EWCA Civ 361Case No Case No: B3/2000/0077Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Thursday 15th March 2001
Between
LANGFORDRespondentHEBRAN & ANR.Appellant
Before
Lord Justice WardLord Justice TuckeyMr Justice CurtisMr J.L. Williams Q.C. and Mr D. Wicks (instructed by Messrs Berrymans Lace Mawer of Southampton for the Appellant)Mr D. Foskett Q.C. and Mr M. Fullerton (instructed by Messrs George H. Coles & Co. of Hove for the Respondent)Date 15 March 2001

LORD JUSTICE WARD:

This

[1]is the judgment of the court on the Defendants' appeal from the judgment of Klevan J. given on 15th October 1999 awarding the Claimant, Robert Langford, damages of £423,133 for personal injuries sustained in a road traffic accident on 5th December 1994 for which liability was admitted. The award included £57,379 plus interest for past and £326,368 for future loss of earnings and the appeal is confined to these amounts. Essentially the Appellant's criticism is that the Judge over-valued the Claimant's loss attributable to his prospective career as a kick-boxer and made other assumptions in his favour which were not supported by the evidence.[2]The claimant was born on 29 April 1967 so he was 27 at the time of the accident. Since leaving technical college at the age of 17 he had worked as a hod carrier interspersed with long periods of unemployment, but at the time of the accident he had been working as a trainee bricklayer for four or five months. He also had a very successful career as an amateur kick-boxer culminating in his becoming the World light-middleweight champion in February 1994 after which he turned professional. He then won his only professional fight before the accident. His second fight did not take place because his opponent got cold feet at the weigh-in. By this time the Claimant's case was that he was holding weekly training classes about thirty times a year.[3]As a result of the accident the Claimant suffered a whiplash injury to his neck, an injury to his left shoulder and other minor injuries. Persistent symptoms associated with the whiplash injury and the injury to his left shoulder prevented him from resuming his training as a kick-boxer and necessitated physiotherapy and exploratory surgery of the left shoulder. The agreed medical evidence at trial dealt with the Complainant's residual disability and the effect of the accident on his pre-accident activities as follows :
"....... There is no objective abnormality on clinical examination of the (left) shoulder at this stage and the function of his shoulder in day to day activities is near normal. We are agreed that he would have difficulty repetitively lifting bricks above shoulder height or repetitively lifting concrete blocks as a result of his shoulder injury and therefore might be prevented from pursuing a bricklaying career ........ He should probably not return to his pre-accident employment of hod carrying. The mild abnormal sensory symptoms in his left forearm ........ do not trouble him very much and do not cause any significant pain or any physical disability......... We see no reason why he should not be able to take part in kickboxing at a lower level than before the accident. We understand that if punching with his left arm causes some pain that he may be limited in his effectiveness. Furthermore the interruption of his kick boxing training following the accident has interfered with his planned career in kick boxing at the highest level."

The Judge awarded £19,000 for pain, suffering and loss of amenity.

[5]The claim for loss of earnings was based on a report from a forensic accountant, Mr. Faull, and evidence from a number of witnesses as to the Claimant's skills as a kick-boxer and how his career might have developed but for the accident.[6]Mr. Faull first calculated what he called the basic claim. This assumed that the Claimant's fighting career would last until he was 36. During that time he would work for twenty-six weeks as a bricklayer and have five fights (three in the UK and two in the US) each year. When his fighting career was over he would work full time as a bricklayer until he was 60. He would continue to hold thirty training classes a year until he was 60.[7]Mr. Faull then calculated four alternative scenarios, based upon escalating success in the Claimant's fighting career. The first assumed that he would win at least one national or European title which would enhance his income from training after his fighting career. The second assumed that after gaining such a title he would move to the U.S. where he would win state or other titles but not become world champion. The third assumed that, having achieved that success, he would become world champion for one year. Both these scenarios would bring enhanced earnings from fights. The fourth assumed that after becoming world champion for two years the Claimant would remain in the U.S. working as a professional instructor earning US$350,000 per annum. The other three scenarios assumed the same career after his fighting career as the basic claim.[8]For each of the four alternative scenarios Mr. Faull calculated the extent to which the Claimant's earnings would exceed the basic claim. Finally, he calculated the amount to be deducted from the claim however it was assessed to reflect the Claimant's earnings or earning capacity since the accident.[9]The Claimant invited the Judge to award the basic claim plus a percentage of each of the four alternatives to reflect the lost chance of earning in these ways based upon the approach approved by this court in Doyle -v- Wallace [1998] PIQR Q146 .[10]The Judge essentially accepted the Claimant's case. He took the basic claim as his starting point without question. After rehearsing the evidence he had heard about the Claimant's prospects as a kick-boxer, which he described as being "all one way", he concluded that Mr Faull's alternative scenarios were "fair and reasonable and in accordance with the evidence". In the language of Doyle there was a "significant chance" that each of them would occur. He then evaluated the chances as follows: 1 : 20%; 2 : 40%; 3 : 30%; 4 : 10%. The basic claim after taking account of the Claimant's earnings or earning capacity was: pre-trial loss: £28,974; future loss : £101,651. The additional amounts calculated by the judge for scenarios 1 – 4 were: pre-trial loss: £28,405; future loss £224,719. Hence, the total amounts awarded were £57,379 for past loss and £326,370 for future loss, a grand total of £383,749.[11]Mr. Leighton Williams, QC for the Appellants, (who did not appear below), submits that the Judge was wrong to take the basic claim as his starting point. Mr. Faull's assumption that the Claimant would work for twenty six weeks as a bricklayer during his fighting career and then full-time until the age of 60 was unjustified given the Claimant's poor work record and the fact that he had only worked for a short time before the accident as a trainee bricklayer. Mr. Faull assumed that the Claimant would earn £40 per week from training and receive sponsorship of £500 per fight, but there was little or no evidence to support these figures. The evidence was that after the accident the Claimant worked as a car valet earning £80 gross for a sixteen-hour week. His earning capacity was conceded to be twice this amount but there was still an issue about which the Judge did not make any finding. The agreed medical evidence was that the Claimant was capable of working in a wide range of manual jobs. Finally the Judge did not discount the basic claim to reflect the fact that kickboxing and working on building sites carried risks of injury which could have affected either or both pursuits.[12]Having considered the references in the evidence relied on by Counsel for both parties we do not accept the criticisms on points of detail made by Mr. Leighton Williams. By assuming that the Claimant would work as a bricklayer for only twenty six weeks a year during his fighting career Mr. Faull fairly reflected the Claimant's past work record which could partly be explained by the building recession in the early 1990s. There was some evidence to support the figures taken by Mr. Faull. Although the medical evidence indicated that the Appellant was capable of doing other manual jobs the accident had made him unfit to work as a hod carrier or bricklayer so he was unable to do the only manual work he knew. In those circumstances we think the concession which attributed an earning capacity to the appellant of twice his actual earnings was reasonable.[13]The multiplier of 17.9 taken from the Ogden tables was for those engaged in risky occupations. This adequately reflected the risks involved in working on a building site. There was an issue before the judge as to the risk of injury in kickboxing. One witness said it was very high; two said it was not. As an insurance risk it is apparently rated as being less hazardous than golf. The judge made no specific finding about this although inferentially it seems to me that he must have accepted the latter evidence. It follows that we do not think that any reduction in the multiplier was called for. Having said this however, the basic claim did make a number of general assumptions in favour of the Claimant which had to be borne in mind when considering the additional amount which the Judge added to this claim to reflect loss of opportunity. These are that the Claimant would have continued to work as a bricklayer although he was only a trainee at the time of the accident and that he would have done so full-time until the age of 60 after his fighting career ended. Further that his professional career as a fighter would have developed successfully although it had only just started with one fight in the UK and would have enabled the Claimant to earn substantial amounts as a trainer both during and for many years after his fighting career had ended.[14]At trial, Counsel for the Appellants argued that the Judge should take a broad-brush approach to quantifying future loss and not adopt the approach in Doyle. The Judge rejected this submission saying it would create an injustice in this case. Mr Leighton Williams argues that he was wrong to do so. So the first question is whether an approach based on Doyle was justified at all in this case. In that case the Judge accepted that but for the accident the Claimant had a 50% chance of becoming a drama teacher rather than a clerk. She was awarded past and future loss of earnings assessed on the basis of taking a middle figure between earnings as a teacher and earnings as a clerk. This court accepted that approach rejecting the appellants/defendant's argument that it was for the claimant to establish on a balance of probabilities that she would have become a teacher before she could recover anything for loss of opportunity..[15]Mr Leighton Williams submits that the Doyle approach is only appropriate where the court has to consider a single lost opportunity. It is not appropriate where there are a number of possibilities. In such a case the court should adopt a broad-brush approach. We do not agree. The broad-brush approach urged on the Judge produced a total of £42,500 for future loss of earnings. Like the Judge we do not think such an approach would have produced a fair result for the Claimant. Once understood, Mr Faull's approach does not involve the same amount of "guesstimating" on the part of the Judge as a broad-brush approach.[16]Next Mr. Leighton Williams made a number of criticisms of the figures used by Mr. Faull and accepted without question by the judge to calculate the future loss for each scenario. We think there was evidence to justify the figures he took, apart from the figure of US$350,000 per annum in scenario 4. The evidence was not entirely clear about what a world champion kick-boxer could earn in the United States after his fighting career. One witness said that as the proprietor of a martial arts studio a well-established champion could earn US$200,000 to US$500,000 per annum. Mr. Faull took US$350,000 as the mid-point in this range but it emerged at trial that these figures did not take account of the cost of running such a business. In Appendices 20, 22 and 23 to his report, as they were updated at the trial, Mr Faull calculated that the loss of income as a professional instructor in the United States from the year 2003/4 onwards was £2,074,931. In our judgment this figure is much too high and we would reduce it by one-third ( i.e. by £691,644) to £1,383,287. That results in his total loss of future income being reduced from Mr Faull's figure of £1,931,020 to £1,239,376.[17]In the course of the hearing before us, Mr Leighton Williams gratefully accepted and adopted further points made by the court that Mr Faull's approach might contain an element of double counting and that in any event it might be illogical. The possibility of double counting, as it appeared to us at the hearing, was thought to arise because for each scenario Mr Faull calculated the amount by which the Claimant's earnings would have exceeded the basic claim. We queried whether it would not have been more appropriate to calculate the loss for each scenario by reference to the additional earnings he gained each time he advanced from one scenario to the next.[18]Our concern about the illogicality of the approach arose from the way the chances of reaching each advance in his career were being assessed. Mr Faull was of the opinion that there was a 25% chance of scenario 2 occurring (the judge finding 40%) yet only a 10% chance (20% for the judge) of his reaching scenario 1. Surely the chance of climbing the first rung on the progressive ladder of success had to be greater than his reaching stage 2? Surely the percentages should decrease? Mr Faull also considered that the sum of the percentages allocated to the four scenarios had to be 100% and we queried why that was necessary.[19]The former point was not a ground upon which Mr. Leighton Williams had come to attack the judgment, and that inevitably took Mr Foskett by surprise. He did not take objection to our dealing with them but did wish - and was entitled to have - an opportunity to consult with his expert. Having done so, he submitted supplemental written arguments for which we are grateful and which we have taken into account.[20]It is, therefore, necessary to analyse how the judge approached the questions. Having referred to and considered Doyle, he continued:- "Mr Foskett invites me in order to properly compensate the claimant for the various opportunities that he has lost as a result of the accident(1) to identify those opportunities,(2) to evaluate the chance of each opportunity being realised,(3) to evaluate the likely benefit to the claimant of having realised the particular opportunity, and(4) to perform the appropriate mathematical calculation arising from the conclusions under (2) and (3)."[21]He then dealt with the four scenarios postulated by Mr Faull and expressed his view that they were "fair and reasonable, and in accordance with the evidence". He held it was appropriate to make awards for each category of the lost chances. He said:- "I have evaluated the chance in each case of the opportunity being realised. It is an evaluation based on the evidence, but, in the end, it will necessarily and must necessarily be subjective."[22]We see no error in his approach up to this point. No doubt influenced by Mr Faull's approach to which no challenge had been made, the judge, as we have already set out, evaluated those chances at 20% for scenario 1, 40% for 2, 30% for 3 and 10% for 4. What caused us concern was whether that assessment of the chances was logical. Take the assessment of the chance of attaining the first scenario being 20% and the chance of achieving the second next level of success being 40%. As scenario 2 by definition assumed the postulate for scenario 1, namely that he had already become a British or European titleholder before advancing his fighting career in the United States of America, then, as a matter of logic, the chance of achieving scenario 1 had to be greater than the chance of achieving scenario 2. He has to get to stage 1 before he can go to stage 2. The chance of reaching stage 2 simply cannot be twice as great as the chance of attaining 1. In our judgment this reveals a flaw in the logic of the judgment and it fatally undermines the judge's whole approach to the evaluation exercise he was conducting. Though we have sympathy for the judge given the way the case was presented to him, we can unfortunately have no confidence in the assessments upon which his arithmetic was based.[23]Dealing with the arithmetic the judge accepted Mr Faull's approach that the loss of increased net income from achieving the goals set for each scenario was the difference between what he could expect to earn at each level and what he was to be taken as sure of earning as his basic loss. Calculated in this way, the amount of the loss in category 2 included elements of the amount of the loss allocated in category 1. It seemed like double counting.[24]We had suggested at the hearing that the better way to assess the value of the lost chance if Mr Langford were to move from category 1 to category 2 would be to calculate the amount of enhanced earnings to be gained by fighting in the United States. The judge had assumed that there was the virtual certainty (i.e. the 100% chance) of earning the amounts which constituted the basic award. If he became the British champion as envisaged in scenario 1 he would have earned an additional sum, £x, and the question was what was the percentage chance of his earning that extra £x. If he had gone on to America he would have earned £x + £y. Having once awarded a sum for the lost chance of earning £x in scenario 1, the value of the lost chance for scenario 2 is not the chance of earning £x + y, but only the extra £y.[25]Mr Foskett accepts in his supplemental submissions that that is "a perfectly legitimate way of approaching the claim" but he submits that it would "yield exactly the same arithmetical result as approaching it in the way advanced on behalf of the claimant". He shows how the judge's award can be analysed as if he approached the case in that alternative way. That analysis, taking it verbatim from the new written submissions placed before us by Mr Foskett with the accountant's help, is as follows:- "As the judge allocated no percentage to the basic claim, it means that he concluded that there must have been a 100% chance of achieving at least alternative scenario 1. (i.e. the actual percentage chance of achieving alternative scenarios 1 to 4 inclusive). On this method, 100% would be applied to the additional claim for at least reaching alternative scenario 1. As the judge allocated 20% to alternative scenario 1, it means that the percentage prospect of achieving at least alternative scenario 2 was 80% (100% - 20%) (i.e. the actual percentage chance of achieving alternative scenarios 2-4 inclusive of 40% + 30% +10%). As the judge allocated 40% to alternative scenario 2 and had allocated 20% to alternative scenario 1, it means that the percentage prospect of achieving at least alternative scenario 3 was 40% (i.e. 100% - 20% - 40%) (i.e. the actual percentage chance of achieving alternative scenarios 3-4 inclusive of 30% + 10%. As the judge allocated 30% to alternative scenario 3 and had allocated 20% and 40% to alternative scenarios 1-2 respective, it means that the percentage prospect of achieving at least alternative scenario 4 was 10% (i.e.100% - 20% - 40% - 30%) (i.e. the actual percentage chance of achieving scenario 4 of 10%). Adding the percentages in bold together (100%, 80%, 40% and 10%) totals 230%. It will be appreciated that on this approach the percentages decrease throughout the scenarios. This is to be expected where the chances of achieving additional career progression(with consequent additional earnings) are being evaluated which is the essence of this approach. Whilst the method is different, both the stand-alone and the additional claim calculations add up to exactly the same total sums." (The emphases are his.)[26]Mr Foskett put in a restatement of the loss of earnings claim to support his submission that the difference between us can be explained away as simply a difference in statistical approach. These submissions do satisfy us that there was arithmetically no double counting. Double counting was avoided by the mathematical device of ensuring that the total percentage awarded in the four categories did not exceed 100%. It was precisely to avoid any duplication of damages that Mr Faull built into his model the requirement that the sum of the percentages allocated between the 4 scenarios was not to be greater than 100%. As a matter of mathematics all of that is correct and now that we understand what was being done, our fears of there being some error in requiring this 100% limit or of there being some duplication of damages have been dispelled. But the problem of the flawed logic remains.[27]In understanding the logic of Mr Faull's approach, his restatement of the loss of earnings award made by the judge is informative, for it demonstrates the fallacy in the approach. The reworked figures show, as a matter of arithmetic, that the judge must have concluded that there was 100% chance of achieving scenario 1. That, however, serves only to reinforce our conviction that the judge's logic was flawed because of course he was not finding that there was 100% chance of achieving scenario 1 and he would have been wrong to have done so. On the contrary, he was correctly invited to discount the additional earnings that might have been achieved had scenario 1 been reached because of the very uncertainty that it would not be reached. The chance had to be less than 100%. This serves only to confirm our reluctant conclusion that the judge's assessment of the chances cannot be relied upon and was erroneously made.[28]Neither party is anxious that we send this matter back for further hearing and all are content that we should do our best on the material available to us. A little hesitantly, we accept that invitation.[29]Turning, therefore, to answer the four questions Mr Foskett invited the judge to consider, we accept his judgment that the four scenarios were fairly and reasonably described and were supported by the evidence. What we then have to do is to evaluate the chance of each opportunity being realised. There was abundant evidence before the judge which he accepted, as we do, that this young man was a sufficiently proven kick boxer so highly regarded by the experts that he had real chances, not fanciful ones, of achieving further fame and fortune at each of the four stages of the ladder of success predicted for him. We evaluate his chances as follows. His chance of becoming a champion for scenario 1 purposes should be assessed at 80%; for trying his hand in the United States in scenario 2 at 66% and for becoming world champion at 40%. Scenario 4 envisages that he remain world champion for two years, the chance for which cannot be significantly less than his chance of becoming the world champion in the first place. But scenario 4 also envisages his removing himself, his wife and his family from their home in Brighton to establish a life in America where he would remain. That must be fraught with uncertainty. We would assess the prospects in scenario 4 to be only 20%.[30]The next task is to evaluate the likely benefit to the claimant of having realised the particular opportunity in each of the four stages of his career. We conclude that having assessed the chance of his enhancing his income by becoming the British/European champion as envisaged in scenario 1 the likely benefit of advancing to scenario 2 must be measured as the difference between the earnings to be achieved in scenario 2 from those which had been achieved in scenario 1. It is the chance of that additional earning which must be measured in each case. We set out those calculations in the Appendix we attach to this judgment.[31]We turn finally to Mr. Leighton Williams's point that the Judge was wrong to assume that at least one of the scenarios would have actually happened. The Judge, he submits, ought to have discounted the whole claim for loss of earnings to reflect the many contingencies attendant on each scenario and the fact that none of them might have occurred.[32]Mr. Foskett accepts that the Judge could have discounted the claim for this reason by making an overall percentage reduction but urges us not to do so. The Claimant had made a very promising start to his professional career at the time of the accident and there was every chance that he would succeed at the highest level. The risk of injury did not justify a discount.[33]We do not accept Mr. Foskett's submissions. Starting as we do with the fact that the basic claim itself contained a number of assumptions in favour of the Claimant, we do not think it was right to add to that claim the claim for loss of opportunity on the basis that one or more of the alternative scenarios would actually have happened. Some discount was necessary at this stage of the assessment to reflect the fact that none of them might have happened. What this discount should be is a matter of judgment rather than mathematics. In our view, this discount should be applied to the future loss of earnings only. We must not overlook the fact that we have already discounted the loss significantly and, in assessing the chance of his achieving the high earnings postulated for scenario 4 we have already taken into account all the uncertainties about the claimant remaining in the United States. On the other hand one must do justice to the very impressive evidence which the judge heard and accepted about the claimant's prospects as a fighter. This is, therefore, very much a matter of feel and , doing our best we have agreed that it would be right in all the circumstances to reduce the damages for future loss of earnings by a further 20%. That reduces the loss from £269,905 to £215,924.[34]The result is that on the approach we would adopt in this case damages for past earnings should be awarded in the sum of £25,525 which is £2,880 less than the amount of £28,405 ordered by the judge. The loss of future earnings as discounted should be £215,924 which is £8,797 less than the judge's award of £224,719. Our calculations produce figures £11675 less than the judge ordered. Expressed as a percentage, this reduction of £11,677 is only 4.6% less than the judge's award of £253,124 (3% of the total award of £383,749).[35]The difficult question now is whether we should interfere with the judge's award. Although we have differed from the judge in the approach to take to assessing the chances, we are nonetheless mindful of the inestimable advantage the trial judge has in being able to test the arithmetical results of the evaluation against the indefinable yet vital "feel" for the case and to make adjustments if it does not feel right. The judge will almost certainly have checked his figures in that way. That is an advantage enjoyed by the trial judge to which we must have regard and to which we must pay respect. Bearing in mind that the Court of Appeal should not ordinarily interfere with an assessment of damages unless the figure awarded by the judge is entirely erroneous, we have come to the conclusion that we should not tinker with this award to make such a comparatively small adjustment to it. We accordingly dismiss the appeal.

ORDER

The appeal will be dismissed with costs at the standard rate, the judgment sum to be paid with statutory interest. (Order does not form part of approved Judgment) APPENDIX Loss of Earnings to Trial Scenario Additional Earnings over and above previous scenario % Award At least achieving scenario 1. £9,628 (App.8) 80% £7,702 At least achieving scenario 2. £18,996 (App.12) - £9,628 = £9,368 66% £6,183 At least achieving scenario 3 £46,315 (App.16) - £9,368 - £9,628 = £27,319 40% £10,927 At least achieving scenario 4. £49,881 (App.20) - £27,319 - £9,368 - £9,628 = £3,566 20% £713 £25,525 Future Losses taken from Appendices 8, 12, 16 and 20 as amended. At least reaching scenario 1. £30,911 (App. 8) 80% £24,729 At least reaching scenario 2. £27,343 (App.12) - £30,911 = Nil Nil At least reaching scenario 3. £48,328 (App.16) - £30,911 = £17,417 40% £6,967 At least reaching scenario 4. £1,239,376 (App.20 as amended) - £17,417 - £30,911 = £1,191,048 20% £238,209 £269,905

Cited in 6 later judgments