Smithurst v Sealant Construction Services Ltd

In personal injury claims, proof that the defendant caused the injury is distinct from assessment of the loss caused. Causation of the injury is ordinarily proved on the balance of probabilities. When assessing future loss, or what would have happened without the injury, the court should evaluate relevant chances, including chances below 50 per cent. An acceleration approach may nevertheless be fair and permissible where medical evidence supports a fair cut-off period but does not provide a reliable statistical basis for a more refined risk assessment. The court must consider both the evidence and the way the case was presented.

The claimant suffered a serious spinal injury while accessing equipment in a van supplied by his employer. Liability was admitted, subject to a minor issue of contributory negligence. The trial was confined initially to whether a similar injury would have occurred independently of the breach and, if so, when.

His Honour Judge Curl treated the issue as causation, applied the balance of probabilities, and found that a similar injury would probably have occurred within two years. The claimant appealed, arguing that the court should assess the future risk rather than adopt an acceleration approach. The central issue was whether that methodology was permissible on the medical evidence and the way the case had been presented.

Disposition. Lord Justice Moore-Bick held that the appeal should be dismissed. Lord Justice Rix and Sir Nicholas Wall P agreed.

1. Causation and assessment of damages. Damage is an essential element of negligence. A claimant must prove on the balance of probabilities that the defendant’s breach caused the injury claimed. That issue is distinct from assessing the extent of the resulting loss, which may require consideration of what would have happened in the future absent the injury. The distinction was illustrated by Hotson v East Berkshire Area Health Authority [1987] A.C. 750 and Gregg v Scott [2005] UKHL 2.
2. Future risks and chances. In assessing future or counterfactual loss, the court should estimate the relevant chances and reflect them in the award. It should not treat a future event as certain merely because it is more probable than not. This approach was stated in Mallett v McMonagle [1970] A.C. 166 and Davies v Taylor [1974] A.C. 207.
3. Acceleration methodology. Risk assessment is not the only permissible method. An acceleration approach may be adopted where it is fair to the claimant, properly reflects the evidence, and fairly fixes a cut-off date. It is particularly suitable where medical experts have not expressed the risks statistically and the evidence supports a defined period followed by a similar injury. The approach approved in Kenth v Heimdale Hotel Investments Ltd [2001] EWCA Civ 1283 was applicable.
4. The judge had wrongly characterised the issue as ordinary causation and had relied on Breeze v Ahmed [2005] EWCA Civ 223, which concerned causation of injury rather than assessment of future loss. Nevertheless, the judge’s preferred medical evidence supported a substantial pre-existing vulnerability and a similar prolapse within two years. The acceleration approach therefore fairly reflected the evidence. Excessive analytical refinement was not required, and the appeal was dismissed.

1. Court of Appeal (Civil Division): Appeal dismissed. Moore-Bick LJ gave the judgment, with Rix LJ and Sir Nicholas Wall P agreeing: [2011] EWCA Civ 1277.
2. Norwich County Court: His Honour Judge Curl treated the issue as causation, applied the balance of probabilities, and found that a similar injury would probably have occurred within two years.