Morgan v Millett

Damages for loss of earnings must be confined to loss caused by the defendant’s tort. Where unrelated degenerative changes would independently have prevented the claimant returning to the relevant employment, damages cannot be awarded for a later period attributable only to the accident.

A Smith v Manchester award requires evidence that the claimant’s employability prospects have been diminished by the accident. It is difficult to sustain such an award where unrelated conditions would have prevented a return to the claimant’s established career in any event.

The claimant suffered injuries and psychiatric illness in a road traffic accident. Following a trial before Mr Walter Aylen QC, sitting as a deputy judge of the Queen’s Bench Division, she recovered damages including loss of earnings to four years after the accident, general damages, and a Smith v Manchester award.

The defendant appealed on the basis that natural degenerative changes, rather than the accident, would have prevented the claimant from returning to her work as a care assistant from an earlier date. The defendant also challenged the Smith v Manchester award. The central issues were the proper period of recoverable loss of earnings and whether the employability award was justified.

1. Appeal allowed. The award was adjusted by reducing the period for which special damages for loss of earnings were recoverable from four years to two years after the accident.
2. The trial judge had accepted that the claimant’s whiplash injury caused incapacity for a period, but had also found that the shoulder and back symptoms were natural degenerative changes unrelated to the accident. Those unrelated conditions would have prevented her from returning to the care-assistant work for which she was suited. It was therefore flawed to award damages against the defendant for a period extending beyond the date when the degenerative changes would independently have caused the same loss.
3. The Smith v Manchester award was also removed. The court considered it fundamentally difficult to justify such an award where the claimant’s unrelated condition would in any event have prevented her resuming her established career. In addition, the evidence did not establish that removal from the workplace had damaged her general employability prospects.
4. The evidence from the psychiatrist did not provide the necessary support. The relevant questions and answers addressed restrictions caused by psychiatric symptoms and did not establish a broader accident-related reduction in employability.
5. There was no order as to the costs of the appeal. Sir Martin Nourse agreed with Lord Justice Thorpe.

• Court of Appeal (Civil Division): allowed the appeal from the order of Mr Walter Aylen QC, sitting as a deputy judge of the Queen’s Bench Division, and adjusted the damages award.
• Trial court: awarded the claimant £45,814.41, including loss of earnings to four years after the accident and a Smith v Manchester award.