Skerman v H. Bollman Manufacturers Limited

Where a tortious accident may have accelerated an injury arising from a claimant’s pre-existing vulnerability, the court must assess, on the balance of probabilities, whether and when the same injury would have occurred without the accident. If it would probably have occurred later, damages may be assessed by reference to the period of acceleration. The assessment may take account of medical and engineering evidence, the accident mechanism, force, posture, and likely future activities. A trial judge may accept an expert’s evidence overall while rejecting inconsistent aspects. An appellate court should not interfere with a reasoned evaluation of conflicting and imprecise evidence merely because another inference is possible.

The claimant appealed from the judgment of His Honour Judge Lloyd in the Brighton County Court on 19 July 2001. Liability was established and was not challenged. The issue was the amount of damages for a serious back injury sustained while the claimant was dismantling a crate with a crowbar at work.

The judge found that the claimant had a vulnerable back but would probably have suffered a similar disabling injury in any event after five years. He therefore assessed damages on a five-year acceleration basis and entered judgment for £70,266.94 including interest. The claimant argued that there was no evidential basis for that conclusion and that the judge had misunderstood the medical evidence. The central issue was whether the judge’s causation and acceleration findings were open to him on the evidence.

Disposition

Mr Justice Douglas Brown gave the principal judgment. Lord Justice Waller agreed and added that the trial judge was entitled to assess the medical evidence on its totality. The appeal was dismissed with costs, set off against the costs order made against the defendant at trial.

1. Assessment of acceleration. The trial judge correctly approached the causation issue by asking whether the claimant would probably have suffered the same serious injury without the accident and, if so, when. A vulnerable back did not establish that the injury was inevitable at the time of the accident. The relevant question was the probable timing of a comparable injury in the ordinary course of the claimant’s future life.
2. Evidence considered. The judge was entitled first to assess the force involved in dismantling the crate, while also taking account of the claimant’s posture. Force and posture were important components of the medical evidence. He was also entitled to consider evidence of the claimant’s intended work, sporting activities and likely future exposure to lifting, pushing and moving forces. His conclusion was therefore based on the totality of the evidence and not on unsupported common sense.
3. Conflicting expert evidence. The judge was entitled to prefer Mr Birch’s evidence overall to Mr Good’s, while identifying inconsistencies in Mr Birch’s opinions and declining to accept his view that the injury would probably not occur during the claimant’s working life. He was entitled to treat the reference to the short to medium term, defined in evidence as one to five years, as supporting the possibility of a comparable injury after five years and to find that this was then probable.
4. Appellate review. The evidence was difficult and imprecise, but the judge had carefully reviewed it, made findings supported by the evidence and gave reasons for his conclusion. The Court of Appeal could not criticise that approach or substitute a different assessment merely because the evidence admitted another interpretation.

• Court of Appeal (Civil Division): on 31 May 2002, dismissed the claimant’s appeal with costs and upheld the five-year acceleration basis for assessing damages.
• Brighton County Court: on 19 July 2001, His Honour Judge Lloyd entered judgment for the claimant for £70,266.94 including interest, after finding that the serious injury would probably have occurred in any event after five years.