Pinnington v Crossleigh Construction

In assessing damages for severe and multiple personal injuries, the court must consider the overall effect of the injuries and whether the global award provides reasonable compensation. The assessment is not made by simply adding separate awards or treating the principal injury as the only injury that matters.

Future loss of earning capacity is assessed by reference to the claimant’s chance of obtaining remunerative employment. An appellate court should respect the trial judge’s evaluative advantage where the conclusion rests on the totality of the evidence. Similar restraint applies to reasonable accommodation and prosthesis costs, particularly where the evidence does not justify speculation about future NHS provision.

The claimant suffered very serious injuries in a road traffic accident. Liability was admitted, and the High Court assessed damages at £1,171,719.52 inclusive of interest.

The defendant appealed against four elements of the award: general damages for pain, suffering and loss of amenity; future earning capacity; future accommodation costs; and the cost of supplying and replacing prostheses. Permission was granted for all four grounds. The central issue was whether the High Court had applied the correct principles and whether any challenged award was so erroneous or excessive that the Court of Appeal should intervene.

1. Appeal dismissed. The Court of Appeal upheld the challenged awards, subject to the accepted reduction of £34,500 from the prosthesis calculation, leaving that element at £181,400.
2. For multiple injuries producing one composite effect, the proper approach is to assess the injuries and then stand back to consider whether the global sum is reasonable compensation for the totality of the injury. The court rejected an approach which treated the loss of the dominant arm as the principal injury and the other serious injuries as mere additions. The award of £145,000 for pain, suffering and loss of amenity was not shown to be outside the permissible range.
3. Future earning capacity involves an assessment of a chance of remunerative employment. The trial judge’s wording that the claimant was unlikely to obtain employment might suggest an inappropriate test, but the conclusion was soundly based on the medical evidence, expert rehabilitation evidence and the judge’s assessment of the claimant. The Court of Appeal would not substitute its view where the trial judge had a material evaluative advantage.
4. The accommodation award was an evaluative judgment about what was reasonable for the claimant’s changed needs. The judge was entitled to use the value of the claimant’s present property as the starting point, taking account of its features, the need for suitable space and a garage, and the competing effect of a smaller garden and other disadvantages.
5. Under Law Reform (Personal Injuries) Act 1948, section 2(4), the possibility of avoiding expenses by using NHS facilities is disregarded when determining their reasonableness. That did not require speculation that recommended prostheses would become available locally. On the evidence, the claimant could reasonably obtain and replace the recommended devices privately, and the judge’s award was not one with which the appellate court could properly interfere.

The appellant was awarded standard-basis costs up to 21 days after the Part 36 offer, and the respondent costs thereafter on an indemnity basis.

• High Court, Queen’s Bench Division, Bristol District Registry: His Honour Judge Bursell QC entered judgment for the claimant on 10 February 2003 in the sum of £1,171,719.52 inclusive of interest.
• Court of Appeal (Civil Division): Permission was granted on the four challenged heads of damage. The appeal was dismissed.