Chang v Delgreco

In a personal injury claim, loss of earnings must be assessed from evidence of actual work, capacity and business activity. Medical evidence that an injured claimant cannot resume the former working pattern does not by itself establish financial loss. The trial judge may reconcile medical reports with oral evidence, cross-examination and business records. Where the evidence is unsatisfactory, a broad-brush assessment may be appropriate. An appellate court should not interfere with factual findings or resulting quantification where the conclusions were reasonably open to the trial judge.

The claimant suffered soft-tissue injuries in a road traffic accident for which liability was admitted. His claim was transferred from the Barnet County Court to the High Court for trial. On 21 February 2003, His Honour Judge Wilkie QC awarded £28,413.67, including damages for loss of earnings.

The claimant appealed only against the assessment of loss of earnings for the period after his initial four-week absence and up to September 2002. The central issue was whether the evidence supported the judge’s findings that the claimant had reorganised his work so as to avoid loss of income until mid-2001, and thereafter had suffered a 10 per cent reduction in turnover.

Lord Justice Kay delivered the judgment of the court. Lord Justices Wall and Thorpe agreed.

1. Appeal dismissed. The challenge concerned factual findings underlying the assessment of loss of earnings. The calculation itself was not disputed if those findings were upheld.
2. The medical evidence established that the claimant could not continue his pre-accident pattern of full-time work involving extensive driving. It did not determine whether the altered working pattern caused an actual reduction in earnings. That question required assessment of the claimant’s evidence and the documentary material concerning his practice.
3. The judge was entitled to conclude that the claimant, who was energetic and resourceful, had reorganised his working life. He could complete his consulting work in three days and use the remaining two days for administration, including writing reports. On that basis, there was no loss of income before the claimant’s software became operational in mid-2001.
4. The judge was also entitled to find that the software released capacity which could have been used to increase turnover, and to award a percentage-based sum for the resulting lost opportunity.
5. Given the unsatisfactory nature of the evidence, the judge was entitled to adopt a broad-brush approach. His conclusions were supported by the cross-examination, practice records and other documents, and were plainly open to him as the trial fact-finder. The Court of Appeal found no proper basis for interference.

The appeal was dismissed with costs assessed at £4,500.

• High Court, Queen’s Bench Division: Following transfer from the Barnet County Court for trial, His Honour Judge Wilkie QC awarded £28,413.67 on 21 February 2003, including damages for loss of earnings.
• Court of Appeal (Civil Division): On appeal, the court upheld the factual findings and assessment of loss of earnings and dismissed the appeal with costs: [2004] EWCA Civ 407.