Mullins v Gray [2004] EWCA Civ 1483

Case No B3/04/1039[2004] EWCA Civ 1483
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)
Venue Royal Courts of JusticeDate Thursday, 28 October 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE MUMMERY
LORD JUSTICE LONGMORE
LORD JUSTICE GAGE
Between
KATHLEEN MULLINSAppellant-v-
Between
DEREK GRAYRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR PHILIP MEAD (instructed by Messrs Owen White, Slough, SL1 3SR) appeared for AppellantMR NEIL R L CAWLEY (instructed by Messrs Praxis Partners, Leeds, LS31AB) appeared for Respondent
J U D G M E N T

LORD JUSTICE MUMMERY:

Lord Justice Longmore will give the first judgment.

LORD JUSTICE LONGMORE: On 1 March 1999 Mrs Kathleen Mullins suffered a whiplash injury when the defendant drove his car into the back of her car when it was stationary at road traffic lights at a junction on the A4 at Langley outside London. The defendant admitted liability and it fell to His Honour Judge Peter Cowell to assess the amount of damages.

[3]The judge, in making his award in a global sum of £12,900 to Mrs Mullins, found in paragraph 22 that she suffered at the time of the Act accident from "psychiatric illness in the form of anxiety and depression". He held in paragraph 72 of the judgment:
"I have ultimately come to the conclusion that in this case, as the doctors have pointed out, that her general state of anxiety and depression clearly heightened her pain and suffering so that the general damages should be increased beyond the usual."
He held further in paragraph 75 that that general state of anxiety and depression was exacerbated as a result of the accident.[4]In awarding £6,000 by way of general damages, he did not differentiate between the physical pain from which Mrs Mullins claimed she was suffering as a result of the accident and the exacerbation of her psychiatric state. In her evidence Mrs Mullins described her pain variously as headaches, neck ache, a burning sensation, aches down her arm, shoulder and neck and muscular spasms (see paragraph 8 of her supplementary statement expounded more fully in a daily log which she kept).[5]In paragraph 26 of his judgment the judge called it "an appalling history of pain and illness since the accident". The defendant's expert orthopaedic consultant said the pain "almost certainly" directly related to the whiplash injury. This was confirmed in a joint report to the court of that consultant and the claimant's own A & E consultant. They added in that joint report that they considered that the neck symptoms would not clear completely although they should improve.[6]The judge further held that he would not make an award of loss of earnings for a longer period than six months after the accident because the joint report stated that, having regard only to the extent of Mrs Mullins' neck pain, she should have been able to return to work by July 1999, albeit she would have some "neck symptoms" at that stage. They added that it was outside their area of expertise to comment on the neurological and psychiatric reports and Mrs Mullins' detailed diary. In the light of those holdings, the judge also declined to make any award for future loss after the trial.[7]Mr Philip Mead appears for the claimant, the appellant in this court, as he did below. He submits that the sum awarded by way of general damages was far too low and that the judge should should have awarded a sum for loss of earnings up to the date of trial and for three years further in the light of his conclusions about the claimant's pain and suffering.[8]The main argument of the defendant at the trial, as it has been before us, was that since Dr Master, the psychiatrist instructed by the claimant, in his report of 3 March 2000 had stated in terms that Mrs Mullins was not suffering from any psychiatric disorder at the time of the accident or thereafter, there was no medical evidence to support any claim for psychiatric illness, nor was there any evidence to support the conclusion that Mrs Mullins' pain and suffering was caused by the accident. The judge appears to have largely accepted that argument which was the reason for his low global award.[9]The paragraph of Dr Masters' report on which particular reliance is placed is paragraph 4.2.1. The judge set out this paragraph, as well as considerable other medical evidence, in his judgment at paragraph 37 to this effect:
"Mrs Mullins suffered an exacerbation of previous long term symptoms of anxiety and depression caused as a result of a road traffic accident on 1 March 1999. I would describe her previous psychological symptoms as resulting from an anxious disposition, sometimes described as an anxious personality. This falls short of a diagnosis of anxious personality disorder, and it would not be regarded as a recognised psychiatric disorder. It appears probable that she was psychologically dependent on tranquilliser medication, ie Diazepam. The exacerbation of symptoms of anxiety and depression that she suffered after the accident fall short of a recognised psychiatric disorder. It is probable they have acted to heighten her perception of pain and have led to an increased level of disability."
[10]This argument, advanced by Mr Cawley on the defendant's behalf, overlooks the fact that Mrs Mullins was not making any claim for psychiatric injury. Her claim was for the pain and suffering which she undoubtedly did suffer from the accident causing the whiplash injury. The fact that that pain and suffering was, as a matter of history, heightened by what has been called her "enduring trait" or "anxious personality disorder" does not make it any the less a claim for pain and suffering caused by the injury. The fact that the pain she felt may have been greater than would have been felt by a person who did not suffer from an enduring trait of anxiety is nothing to the point. Mrs Mullins may be more susceptible to pain because of that trait but, as is well-known, the tortfeasor takes his victim as he finds her. Mr Cawley said that, even this doctrine, sometimes called "the eggshell skull principle", can only apply if there is medical evidence to support the particular trait which the victim suffers.[11]There is, however, no authority for that proposition and it is very difficult to see how that could be a rigid principle of law.[12]The position is different if the claim is for psychiatric injury. Then, no doubt, the claimant does have to produce medical evidence to support such a claim. The authorities relied on by Mr Cawley, in particular Arrowsmith v Beeston, a decision of this court given on 18 June 1998, but unreported, and the Law Commission report which is referred to in that case (No 249) address that particular issue. But they are not to the point when a claim is for personal injury in the form of a claim for actual pain and suffering on the part of the claimant. If a claimant gives evidence of that pain and suffering, the judge is able to assess that evidence in the ordinary way. He must then decide whether that pain and suffering was caused by the accident.[13]In this case, despite Mr Cawley's submissions to the effect that the claimant had not proved that her pain and suffering was caused by the accident, the medical reports all proceed on the basis that it was so caused. There is indeed no realistic candidate for the claimant's undoubted continuing pain and suffering which, as the judge described it, was "an appalling history".[14]Mr Cawley cross-examined Mrs Mullins to the effect that her pain and suffering may have been partly caused by her use of Diazepam at the time of the accident and by her subsequent efforts to wean herself off Diazepam. That was not accepted by the judge and could never have been, in my judgment, an alternative cause of the pain and suffering she endured.[15]The judge was entirely right to follow the joint expert report that the pain was directly related to the whiplash injury. Where, with respect, the judge went wrong was in allowing the fact that Dr Master had said that the claimant suffered from no recognised psychiatric disorder, to deflect him from making a proper award of general damages and for loss of earnings on the part of the claimant.[16]If one takes into account both the appalling history of actual pain and suffering, and the fact that that pain was heightened as a result of the enduring trait of anxiety on the part of the claimant, in my view the figure selected by the judge of £6,000 is far too small. It also seems to me that the judge did not take into account the pain and suffering of Mrs Mullins to the proper extent when he followed the joint expert report in saying that he would only award damages for six months. The joint expert report made it perfectly clear that they were only talking about the physical symptoms of the whiplash injury and could make no contribution in relation to the psychiatric aspect of Mrs Mullins' pain and suffering.[17]When Mr Cawley was presented with the possibility that this court would seek to set aside the amount awarded by the judge, he submitted that the case would have to be remitted either to the same judge or another judge of the county court for a fresh assessment to be carried out. I would not accept that submission. All matters were able to be canvassed at the trial. This court is in as good a position as was the trial judge to assess the proper amount of damages. This court would not normally interfere with an assessment of general damages unless it felt that the judge had gone seriously wrong, but I do feel that the figure of £6,000 is very much too low in the light of the evidence that was before the judge once one discounts Mr Cawley's argument accepted by the judge as it was.[18]Doing my best in what is not perhaps a wholly easy case, in my view the right bracket for general damages in a whiplash injury of this kind where the claimant has suffered the appalling history of pain and suffering, and the condition had not ameliorated by the time of trial, is between £17,500 and £22,500. I would therefore award a sum of £20,000 on which interest will have to be calculated.[19]I turn to the loss of earnings to the date of trial. The claimant has a finding in her favour from the judge that, but for the accident, she would have accepted a job at Burnham Beeches Golf Club. Mr Mead has calculated damages on an alternative basis for the time between the accident and trial, with Mrs Mullins working at the Golf Club, as the first alternative, and working in much the same way as she had hitherto, taking temporary jobs from time to time, but overall working about one week in three as the second alternative.[20]It seems to me that we should not disturb the finding that Mrs Mullins would have taken the job at the Golf Club. But the judge having only given damages for six months, it falls to us to determine how long she would have worked at that job. In my judgment, having regard to her previous history, it is unlikely that she would have worked there longer than one year. For the first year subsequent to the accident, I would award loss of earnings on the basis set out in scenario A in the figure of £9,886.82. However, for the remaining four years subsequent to the accident, it is more likely on the balance of probabilities that she would have worked in some similar way to the way she worked before the accident and I would accept the figures put forward, no challenge being made to them, for the second year of £6,426.50 (scenario 2); for the third year £5,854.53; for the fourth year £5,184.63; and for the fifth year £6,424.77. That is not as claimed because it is asserted that in the fifth year, after Mrs Mullins' daughter had left school, she would have had more time to work and would have worked the equivalent of a six day week. I would not accept that and would use the figure at the top of page 38 in the schedule of loss of damages of £6,424.77 as the net figure for that year.[21]On my calculation that comes to a total of approximately £34,000 to which interest will have to be added. That leaves a question of the future loss after the trial. The claim is made for three years. That is somewhat ambitious. We were told that Mrs Mullins is waiting for a place on a pain management course. That has not yet been vouchsafed to her, but it is expected that the NHS will be able to provide that within the near future. I would not give more than two years for future loss of earnings because Mrs Mullins has an earning capacity to some extent. After her course has finished she may obtain earnings at a higher rate than she is currently able to claim. There is also the fact that she receives a lump sum now. I would award a figure of £6,500 for two years, making a total of £13,000. That will not carry interest.[22]The total of the principal that I have enumerated will be £67,000 but, no doubt, counsel will require time, if my Lords agree to the figures, in order to assess the actual financial result.

LORD JUSTICE GAGE: I agree. In my view the question which the judge had to decide was whether Mrs Mullins genuinely suffered physical pain which was caused by the accident and how long that physical pain subsisted. It was the pain arising from the physical injuries which he had to compensate, not a psychiatric condition. It seems to me that he was deflected from dealing with this comparatively simple issue by a plethora of medical reports from different doctors with different specialities, a number of whom dealt with the possibility of psychiatric damage.

[24]In my judgment, whatever it was that caused the heightened perception of pain in the appellant, whether it was a recognised medical condition or merely because she was unusually sensitive to pain, she is entitled to be compensated for it and for the losses which flowed from it.[25]In my view this was a typical eggshell skull case. The only candidate as a cause of the pain was her whiplash injury. In my judgment that assumption underlies the conclusions in all the medical reports.[26]I agree, for those reasons and for the reasons advanced by my Lord, that this appeal should be allowed. So far as the assessment of damages, on that basis I agree with the figures which my Lord has put forward.

LORD JUSTICE MUMMERY: I agree with both judgments. The appeal will therefore be allowed and the damages awarded by the judge will be set aside. (Discussion regarding interest and costs) J U D G M E N T O N C O S T S

LORD JUSTICE MUMMERY: As we have already indicated, for the reasons given in the ex tempore judgment, the appeal is allowed. The sums awarded in place of the sum awarded by Judge Cowell are: (1) £20,000 for pain and suffering, plus interest; (2) £34,000 for loss of earnings from the date of the accident to the date of trial, plus interest; (3) £13,000 for loss of future earnings.

[29]In discussion with counsel it has been indicated that they will be able to agree the amounts of interest and they have been asked to provide the court with a signed, agreed draft order reflecting the decision of the court on the appeal.[30]There has then followed detailed argument on the costs of the action, the costs of the appeal and, on an application by the respondent, leave to appeal to the House of Lords. As regards the costs of the action, we were told by Mr Mead, counsel for the appellant, that an offer was made by his client to settle for the sum of £70,000. That offer was made on 17 February 2004; the trial started on 24 February 2004. He submitted that his client should be entitled to indemnity costs of the action from 21 February 2004, costs prior to that date being ordered in his client's favour on the standard basis. We accept those submissions. We also grant his application for an order to be made for a payment of £25,000 on account of his costs, that sum to be paid within 21 days by the respondent.[31]Turning to the costs of the appeal, the appellant has won and is entitled to an order for costs of the appeal. There was placed before us a schedule of costs and we were asked to make a summary assessment. This was opposed by Mr Cawley, for the respondent, saying that he had not been given sufficient advance notice of the schedule in order to deal with the application. He said that the court should order a detailed assessment. We have decided that it is a case suitable for summary assessment. The total on the schedule, including VAT, is £32,093.29. Substantial items on that include success fees in accordance with a conditional fee agreement which has been agreed between the appellant and her advisers, that success fee being 100 per cent of solicitor's costs and totalling £5,604, plus a success fee of counsel's fee, also of 100 per cent, at £7,500 in addition to the £7,500 fee of counsel for the skeletons and hearing.[32]Doing the best we can on the submissions, our view is that the sum before the addition of that, which is £27,506.89, should be reduced by £7,000. That will make a total of £20,506.89. It will be necessary to recalculate the amount of VAT claimed on solicitors' and counsel's fees. We have arrived at that deduction by focusing principally on the amounts of the fees for solicitors' costs and counsel's fees, not on the disbursements and attendances which are detailed higher up in the schedule of costs.[33]We then heard an application by Mr Cawley for leave to appeal to the House of Lords. That was made on his submission that there was a point of wider importance involved in this case which he identified as whether or not medical evidence was required to establish the eggshell skull nature of the appellant's disability. In our view there is no matter of sufficient importance arising from our judgments which would justify us granting leave to appeal to the House of Lords. We leave that as a matter for their Lordships to decide. We refuse leave to appeal to the House of Lords.

Order

Appeal allowed as indicated. Counsel to draw up final Minute of Order. Leave to appeal to the House of Lords refused.