Johnson v Warren [2007] EWCA Civ 595

Case No B3/2006/1762[2007] EWCA Civ 595
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SALFORD COUNTY COURT
(HIS HONOUR JUDGE RAYNOR QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 2 nd May 2007
Before
LORD JUSTICE AULDLORD JUSTICE SEDLEYLORD JUSTICE HUGHES
Between
JOHNSONAppellantWARRENRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr S Douglas (instructed by Messrs Eden & Co) appeared for Appellant.Mr W Evans (instructed by Messrs DLA Piper Llp) appeared for Respondent.
Judgment
[1]The question in this personal injuries appeal is whether the judge was wrong not to make an award for future disadvantage on the labour market of the kind often referred to as a Smith v Manchester award. The action arose from a road traffic accident in December 2000. Liability was admitted. The only issue was one of quantum. The claimant was a lady of not quite 47 at the time of the accident and 52 at the time of the trial in July 2006. She was living in the family home with her husband and two adult daughters. The principal injury was a nasty fracture of her breast bone, which would have been excruciatingly painful. In addition the accident engendered a post-traumatic stress disorder of which a component was a fear of driving or being driven and which had occasioned a need for at any rate some psychotherapy. The claimant’s case at the trial was that she continued to suffer from her injuries, both orthopaedic and psychological. There was a substantial claim for future loss of earnings and for future care. The judge found that there were some continuing physical restrictions. The fracture had united with a measure of overlapping causing a shortening of the breast bone. That meant that the claimant would be limited in attempting occupations involving strenuous physical activity, in particular bending, heavy lifting or carrying.[2]That finding resulted in a limited award for future care in relation to help with matters such as heavy shopping and strenuous housework. As for capacity for work, however, the judge found that such residual symptoms as the claimant had, whether physical or psychological, were not such as to prevent her from working and had not been for a little while since, at the latest, February 2006. The judge found that the claimant was not working because she did not accept the medical assessment and advice that she had been given since, at any rate, early 2004. He found that she was in fact fit for clerical work and that she would, but for the accident, have been working approximately 25 hours a week. There is no appeal against those findings. The judge considered the claim for disadvantage on the labour market. He held that no such award should be made. Although the claimant was less able to carry out strenuous physical work than she would have been if she had not had the accident and although she was to that extent, at least theoretically, more limited in her choice of work, the judge made the following findings which are relevant to this part of the claim: 1. For many years until her first child was born in 1983 the claimant had worked full-time in a variety of jobs in the clerical field. They included typing and telephonist work and a variety of other clerical occupations. 2. After that she had not worked full-time. She had worked part-time and often on an ad hoc or casual basis. She had been, among other things, a shop assistant, she had worked at a temporary agency, she had been a dinner lady, she had worked in the financial offices of the local council and for some time she had been on the books as a “bank” auxiliary nurse, working in that capacity when work was available and she was free to do it. One of the reasons for this pattern of part-time casual work had been the illness of her own mother, who had required a good deal of attention up until her death in 2002. The claimant had been her carer. What periods the claimant spent in various different part-time occupations it proved impossible on the evidence to say, and she herself could not reliably remember. 3. She was now quite fit to do again the full range of clerical or equivalent work which she had done in the past. Such work was available to her albeit that she could not drive. She lived in an area which was well connected by public transport, of the kind that she would be likely to need, with many places in Greater Manchester where such work was freely available. Those places included the city centre.[3]The judge went on to find that she would be doing such work now but for the fact that she did not accept the medical advice and assessment which she had been given, and believed herself unfit for any work of any kind. The judge went on to make this finding:
“Having seen and heard the claimant, I am of the opinion that she is likely to persist in her present belief indefinitely.”
[4]A Smith v Manchester award is appropriate when there is a real risk that at some time in the future the claimant will be out of work or, in some cases, in poorer paid employment when, but for the residual effects of the accident, she would be in work or in better-paid employment. Applying that principle to the present case, an award was appropriate if there was a real risk that at some time between now and retirement the claimant would remain out of work because she was unable to do heavy lifting or equivalent work and no clerical or less physically demanding work would be available to her. The principal complaint which is made about the judge’s conclusion that there should be no such award is that a decision that there is no current, continuing and future loss does not conclude the question of whether there is a future disability on the labour market, such as should be met by a Smith v Manchester award. For my part I agree with that proposition but that is not what the judge said. The judge rejected the Smith v Manchester award, not simply because there was no continuing future loss, but for two reasons.[5]First, he had, as I have indicated, plainly found that this lady was fit and capable of doing work of a non-physical kind which was freely available to her. If that is right, the judge was entitled to conclude that there was no real risk that at any time in her remaining working life she would be out of work because the only available work for her was of a physical kind which she could not do. That alone is sufficient to justify the decision which the judge made.[6]Quite apart from that, the judge found at paragraph 10 of his judgment that, whatever she might profess, the mindset of the claimant was unfortunately that she did not regard herself as fit for work and he reached the conclusion that that belief was likely to persist indefinitely. That finding is also fatal to a Smith v Manchester claim. Whether or not there might be scope for challenge to that finding, on the basis in particular that it was not something which had been fully investigated in the evidence of the claimant, the earlier finding of the judge that there was going to be available to this claimant ample work of a kind that she was able to do was quite sufficient to lead him to the conclusion which he reached, namely that there was no scope for an award under the Smith v Manchester claim. In those circumstances, I for my part find it impossible to say that the judge’s conclusions are ones with which this court could properly interfere.[7]For those reasons I should dismiss this appeal.[8]In my respectful view the judge was not justified in making the finding he did at the end of paragraph 10 that the appellant was likely to persist indefinitely in the belief, which was unsupported by medical evidence, that she was unfit to return to work. There is and could be no challenge to his finding that on the evidence the appellant ought by the date of trial to have returned to work, so that there was no continuing purchase to her loss of earnings. But loss of earning capacity in the form of adaptability on the labour market is of course a different scale of loss. As to this, the nearest the evidence came to touching upon it was in the following short exchange and cross-examination:
“Q: So your experience in full-time work is doing typing, receptionist -- that sort of job -- telephonist? “A: Yes. “Q: Those are jobs you can do now, are they not? “A: I couldn’t do it at the moment.”
[9]It would have been simple enough to follow this with the question “Can you see yourself ever being able to?” Had it been asked, the appellant’s answer might or might not have given the judge something to go on. As it was, there was, in my judgment, no legitimate evidential basis for a finding that the appellant’s mindset was such not only that she had declined for the last six months or so to return to work when objectively she was capable of doing so but that she would maintain this mindset indefinitely.[10]Where, however, I agree that this appeal encounters a greater difficulty is in the judge’s finding that enough work, within the appellant’s reduced capacity, was available to make any loss of mobility on the labour market inconsequential in terms of financial loss. For this, the second of the reasons given by my Lord, Lord Justice Hughes, I too would dismiss this appeal.[11]I also would dismiss the appeal for the reasons given by my Lord, Lord Justice Hughes. I would do so for both of the principal reasons given by him. First, that the judge was entitled on the evidence before him to find that such restriction as there might be on the future working ability of Mrs Johnson was of such a minimal nature in the circumstances of this case that it would not effectively restrict her opportunities in the work place so as to merit a Smith v Manchester award.[12]Secondly, I would uphold the judge’s reasoning, agreeing with my Lord, that the effect of his assessment of her evidence was that there would be no occasion for any Smith v Manchester award to arise for consideration if there were any restriction on her future ability of such a level as to attract such an award. His finding was that in effect, given her attitude and her future attitude as he judged it to be, she would not look for work in the future and so, on that account, there would be no occasion for consideration of a Smith v Manchester award.[13]Accordingly, the appeal is dismissed.

Order

Appeal dismissed.