Samuels v Benning

Permission to appeal should be granted where the proposed grounds disclose a seriously arguable challenge to the assessment of damages. This may arise from a failure to make necessary findings about matters affecting loss of earnings, or from a potentially erroneous characterisation of an item of loss. Although an appellate court is cautious about disturbing an experienced trial judge’s assessment of general damages, it may do so where the evidence indicates a distinct possibility that the award is substantially too low.

The claimant obtained judgment in the Southend County Court for £77,074.40 following a road traffic accident. He sought permission to challenge the assessment of damages, principally for past and future loss of earnings and for the cost of undertaking domestic improvement work which he could no longer perform himself.

May LJ had granted permission on three grounds. The claimant renewed his application in relation to the remaining grounds, including the assessment of past earnings and general damages. The defendant did not attend and was unrepresented. The issue was whether all eight grounds were sufficiently arguable to proceed to a full appeal.

1. The renewed application for permission to appeal was allowed, and all eight grounds could be argued before the full court.

2. The challenge to past loss of earnings was seriously arguable. The judge had not made findings on increases in pay, overtime payments and changes in the tax regime. Those matters could materially affect the calculation and might justify the figure advanced by the claimant.

3. The grounds concerning the claimant’s inability, through injury, to carry out DIY work were also worthy of argument. The evidence described him as an accomplished craftsman who had previously undertaken substantial work himself. If the judge had treated the claim merely as compensation for inability to enjoy a rewarding hobby, that approach might have been legally erroneous and might have affected the assessment of the claim as a whole.

4. The DIY issue bore indirectly on general damages. The Court of Appeal acknowledged the difficulty of increasing an award assessed by an experienced judge who had seen the claimant and evaluated the practical effects of the injuries. Nevertheless, the evidence disclosed a distinct possibility that the award was so low that the appellate court might unusually exercise its own judgment to increase it.

5. The application was allowed. There was no order for costs.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was allowed under [2001] EWCA Civ 1602; all eight grounds could be argued before the full court.
• Southend County Court: His Honour Judge Gordon Rice entered judgment for the claimant and assessed damages at £77,074.40 on 31 May 2001.