Murrell v Healy & Anor

In assessing damages against a second tortfeasor, the court must identify the additional damage caused by the second accident to an already injured claimant. The assessment must consider what the claimant would probably have done, and earned, if the second accident had not occurred. Earlier compensation is relevant where it assists that inquiry, but damages should not be reduced merely on an equitable view that double recovery would be unfair. Without-prejudice material may be admissible where it is used to establish the nature of the earlier injury and compensation, rather than to prove admissions made in negotiations. An appellate court should not readily interfere with a factual finding based on the claimant’s own evidence, particularly where the claimant has materially exaggerated the symptoms.

The claimant suffered injuries in two road accidents in 1995. He settled his claim arising from the first accident before bringing proceedings concerning the second. The second claim included loss of earnings, but the presentations of the two claims were materially inconsistent. The county court admitted documents from the first claim, deducted compensation attributed to loss of earnings, awarded no future loss of earnings, and assessed general damages.

The claimant appealed against the treatment of the earlier settlement, the loss-of-earnings assessment and the refusal of future earnings. The respondent challenged the level of general damages. The central questions were how to assess damage caused by the second tortfeasor, whether the settlement documents were admissible, and whether the judge’s factual findings should be disturbed.

1. Appeal dismissed. The county court’s assessment of damages and the award of general damages were upheld.
2. The documents obtained from the insurers’ file in the first claim were admissible. The case was materially different from Rush and Tompkins v Greater London Council [1989] 1 AC 1280. Following Muller v Linsley & Mortimer (1996) 1 PNLR 74, the documents were relevant to the nature of the earlier injury, the compensation already received and the reasonableness of the settlement. Their use was not to establish the truth of admissions made in without-prejudice negotiations.
3. The proper question against the second tortfeasor was what damage the second accident caused to an already injured claimant. The court had to consider not only whether the claimant was physically fit for light work after the first accident, but whether he would probably have found such work and remained in it. The assessment was therefore based on the claimant’s probable working history, not an automatic deduction imposed solely to prevent double recovery.
4. Baker v Willoughby [1970] AC 467 and Jobling v Associated Dairies [1980] AC 794 concerned related difficulties in apportioning loss, but neither decided the assessment of damages against the second tortfeasor. The claimant’s presentation of the first claim and the evidence made it reasonable to conclude that he would have had periods of unemployment lasting at least two years. The county court’s result was therefore sustainable by the orthodox approach.
5. The judge was entitled to rely on the claimant’s evidence and admissions concerning his inability to work because of his hips and knees. The video evidence showed deliberate exaggeration, and the psychiatric injury did not compel that conduct. There was no proper basis for appellate interference.
6. The general damages award, including compensation for post-traumatic stress disorder caused by the second accident, was not excessive. The mitigation issue did not arise because the judge had effectively found that the claimant was unable to work during the relevant period.

• Court of Appeal (Civil Division): appeal from the assessment of damages by Her Honour Judge Coates in Brighton County Court. Appeal dismissed.