Rees v Dewhirst Plc & Anor

Where psychiatric injury has several intertwined causes, the court must make a sensible attempt to apportion responsibility where the evidence permits. Apportionment is inappropriate where the causes are so bound together that no reliable division can be made.

In assessing future loss of earnings, where the claimant is expected to become capable of full-time work, the court should begin with the claimant’s likely residual earning loss and make appropriate allowances for uncertainty and delay. It should not begin with total incapacity to retirement and then apply a broad discount.

The defendants appealed against an award of damages made by Swansea County Court following a workplace electrocution. Liability had been established subject to a 15 per cent contribution by the claimant.

The appeal challenged findings concerning the claimant’s orthopaedic and psychiatric injuries, the timing of his return to work, general damages, and future loss of earnings or earning capacity. The central issues were whether the depressive illness should be apportioned between the accident and other stressors, and whether the judge had adopted a proper method for quantifying future loss.

1. Appeal allowed in part. The Court of Appeal upheld the judge’s factual findings on the back injury, psychiatric causation, return-to-work dates and general damages.
2. On psychiatric causation, the accident had triggered the depressive disorder. Although several factors contributed to its continuation and worsening, those factors were inextricably bound together. Applying the principles stated in Hatton v Sutherland [2002] EWCA Civ 76, it was impossible to identify a reliable percentage attributable to the pre-existing testicular pain and relationship difficulties. No apportionment was therefore made.
3. The judge was entitled to find that the claimant would become capable of part-time work in January 2002 and full-time work in June 2002, calculated from the settlement of the claim.
4. The award of general damages fell within the permissible range. The Court of Appeal would not interfere merely because it might have awarded a lower sum.
5. The future-loss award was excessive. Since the claimant was expected to resume full-time work, the judge should have started with the likely loss during and after the return-to-work period, allowing for difficulties in obtaining employment and the uncertainty of future employment. Starting with total loss to retirement and reducing it by a multiplier was the wrong approach.
6. The award for loss of earnings and loss of earning capacity was reduced from £89,352 to £45,000. The appeal was allowed to that extent only.

• Court of Appeal (Civil Division): allowed the defendants’ appeal against the Swansea County Court assessment of damages, but only by reducing the future-loss award by £44,352.
• Swansea County Court: awarded damages of £158,577.85 inclusive of interest, subject to the claimant’s 15 per cent contribution.