Secretary of State for Defence v Hulme

Personal-injury damages are assessed globally where multiple injuries produce a composite effect. The judge may consider each injury, then stand back and test the total against reasonable compensation for the claimant’s overall condition.

Future earning capacity is a chance assessment. No award may be made where the evidence establishes no measurable chance of remunerative employment. An appellate court should respect the trial judge’s advantage in evaluating evidence and should not interfere merely because it might have chosen a different figure.

Reasonable accommodation and prosthesis costs are fact-sensitive. Under section 2(4) of the Law Reform (Personal Injuries) Act 1948, the possibility of using NHS facilities is disregarded, but the court must still assess whether the claimed private expense is reasonably likely to be incurred.

The supplied judgment records an appeal by Crossleigh Construction against a High Court assessment of damages for David Pinnington, after liability for a serious road traffic accident had been admitted. On 10 February 2003, His Honour Judge Bursell QC entered judgment for £1,171,719.52 inclusive of interest.

The appeal concerned four heads of loss: general damages for pain, suffering and loss of amenity; future earning capacity, for which the judge made no award; future accommodation costs; and prosthetic devices. The central questions were whether the assessments were legally or manifestly erroneous, whether the evidence justified a nil award for future earning capacity, and whether private prosthesis costs could be recovered despite NHS provision.

The appeal was dismissed unanimously. The Court of Appeal emphasised that it was reviewing assessments of damages made by a trial judge who had seen and heard the evidence.

1. General damages. In a case involving multiple injuries with a composite effect, the court should consider the individual injuries but then stand back and assess whether the global figure reasonably compensates for the totality of the injury. This approach was reflected in the dictum in Brown v Woodall [1995] PIQR Q36. The award of £145,000 was not shown to be too high or one with which the appellate court could properly interfere.
2. Future earning capacity. Future loss is assessed as a chance of obtaining remunerative employment. Although the trial judge’s wording that employment was unlikely might suggest an inappropriate test, the evidence, including expert evidence and the judge’s assessment of the claimant, established in effect no measurable chance. The appellate court therefore had no proper basis to differ. The approach identified in Tait v Pearson [1996] PIQR Q 92 did not require an award where the chance was effectively unmeasurable.
3. Accommodation. The reasonableness of future accommodation requirements was a fact-sensitive assessment. The judge was entitled to use the claimant’s present property as a starting point and to weigh its space, condition, location, garden and garage against cheaper alternatives. The resulting award was reasonable and not open to appellate interference.
4. Prostheses and NHS provision. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 required the possibility of avoiding expenses through NHS facilities to be disregarded when reasonableness was assessed. The claimant nevertheless had to establish that the private expense was reasonably likely to be incurred. Unlike Woodrup v Nichol [1991] PIQR Q104, there was no sufficient evidence to justify speculation that the required devices would become available locally. The judge was entitled to award the cost of four prostheses and five-year replacements. The accepted arithmetical reduction reduced this head from £215,900 to £181,400.

The appellant received standard costs up to 21 days after the Part 36 offer made on 26 June, and the respondent received indemnity costs thereafter.

• Court of Appeal (Civil Division): The appeal against the High Court’s assessment of damages was dismissed.
• High Court, Queen’s Bench Division, Bristol District Registry: His Honour Judge Bursell QC, sitting as a High Court judge, entered judgment for the claimant on 10 February 2003 in the sum of £1,171,719.52 inclusive of interest.