Raitt v Lunn

In a claim for long-term loss of earnings following personal injury, the claimant must prove on the balance of probabilities that the injury caused a significant adverse effect on career or performance. A claimant’s honest subjective belief is insufficient where the evidence does not objectively establish the alleged effect. The trial judge is entitled to assess the evidence, including competing expert opinions and the claimant’s subsequent performance, and an appellate court should not interfere absent legal or evidential error. A loss-of-chance calculation cannot be undertaken where the underlying impairment and causation have not been proved. Any discussion of a broad-brush award after future loss has been established is necessarily obiter.

The claimant, a professional golfer, suffered a dog bite which shortened and partially numbed his left little finger. The defendant was found 80% liable. Sir Ian Kennedy, sitting in the Queen’s Bench Division, awarded general damages, loss of earnings and special damages, but rejected the claim that the injury had caused substantial long-term impairment of the claimant’s golfing career or future earnings.

The claimant sought permission to appeal, arguing that the findings were against the evidence and that the judge had treated the effect of a later road accident inconsistently. The central issue was whether the evidence established a significant long-term effect attributable to the dog bite.

1. Permission refused. The judge’s assessment of damages and his conclusion that the dog bite had no significant adverse long-term effect on the claimant’s golfing performance or career could not be faulted.
2. The claimant bore the burden of proving, on the balance of probabilities, an adverse long-term effect caused by the original injury. The judge was entitled to require objective evidence supporting the claimant’s subjective assessment, particularly evidence from an expert or fellow professional familiar with his game before and after the accident.
3. The evidence did not compel a finding in the claimant’s favour. His tournament results after the injury did not show an immediate decline, and the later Scottish road accident created a separate possible cause of any subsequent impairment. The absence of the claimant’s long-time coach as a witness materially weakened the case.
4. The question of the appropriate basis for calculating consequential loss did not arise once the alleged long-term effect had failed to be proved. The court nevertheless observed that, even if a marginal future impact had been established, applying a percentage to a particular level of projected golfing earnings would have been highly speculative because of the wide variation in earnings and the narrow margins between success and failure. A broad-brush lump-sum award would probably have been the appropriate method.
5. Lord Justice Rix and Lord Justice Carnwath agreed with Lord Justice Potter.

• High Court (Queen’s Bench Division): On 6 December 2002, Sir Ian Kennedy awarded damages after finding the defendant 80% liable, but rejected the claim for substantial long-term loss of golfing earnings.
• Court of Appeal (Civil Division): Permission to appeal was refused.