Kenth v Heimdale Hotel Investments Limited

Where the evidence permits a finding that, without the defendant’s negligence, the claimant would later have suffered substantially the same disability through an unrelated event, damages may properly be assessed by treating the injury as an acceleration of that disability. That approach does not require proof that the later event was virtually certain.

A loss-of-chance assessment is appropriate where negligence deprives the claimant of a significant chance of a benefit or exposes the claimant to a significant chance of detriment. It is not required where the evidence justifies an acceleration finding. The choice is a matter of the facts and the expert evidence in the individual case.

The claimant, a hotel chambermaid, sustained a prolapsed disc while moving a bed at work. Liability had been determined by summary judgment. The Deputy Judge in the Queen’s Bench Division therefore tried damages only.

The Deputy Judge found that the claimant had a pre-existing vulnerability in her lumbar spine. He held that, absent the accident, a later event would probably have produced substantially the same physical and psychiatric consequences within five years. He assessed damages on an acceleration basis and awarded £12,500 for pain, suffering and loss of amenity.

The claimant appealed. She contended that damages should instead be assessed for all disabilities and discounted only for the chance of comparable consequences arising without the accident, unless those consequences were virtually certain. The central issue was whether the five-year acceleration approach was legally permissible on the evidence.

Appeal dismissed unanimously. Laws LJ gave the judgment, with which Mummery LJ and Sir Anthony Evans agreed.

1. The court rejected the submission that an acceleration assessment is available only where the comparable later event is virtually certain. Although past facts are ordinarily determined on the balance of probabilities, a loss-of-chance approach may be needed for future contingencies where the loss is itself the loss of an opportunity or the exposure to a risk. The court referred to Hotson v East Berkshire Area Health Authority [1987] 1 AC 750.

2. The loss-of-chance authorities, including Davies v Taylor [1974] AC 207 and Allied Maples Group Limited v Simmons & Simmons [1995] 1 WLR 1602, did not require that method here. On the medical and factual evidence, the Deputy Judge was entitled to find that the claimant’s pre-existing spinal vulnerability would have led to an unrelated event with effectively the same consequences.

3. Acceleration was therefore a proper methodology for valuing the loss. The expert evidence had been addressed in terms of the likely period of acceleration, not percentage chances. The Deputy Judge was entitled to treat the claimant as free from the relevant consequences for five years, and then to treat the later comparable consequences as inevitable for the purpose of the assessment. That approach was not less fair than a full assessment followed by a percentage discount and would theoretically produce the same result.

4. The finding of a five-year period was securely open on the evidence and could not sensibly be challenged on appeal. The appeal was dismissed with costs, subject to detailed assessment of the claimant’s costs by a Costs Judge.

• Court of Appeal (Civil Division): The claimant’s appeal was dismissed unanimously. The court upheld the assessment of damages on a five-year acceleration basis.
• Queen’s Bench Division: Mr Leighton-Williams QC, sitting as a Deputy Judge, tried quantum after summary judgment on liability. He found that the accident accelerated substantially the same consequences by five years and awarded £12,500 for pain, suffering and loss of amenity.