Ward v Allies and Morrison Architects

At the permission stage, a proposed ground need only show a realistic prospect of success; the court does not determine the appeal’s merits. Here, that threshold was met for grounds concerning the statutory meaning of disability, the combined effect of physical and psychiatric injury, Ogden 6 and future loss of earnings, psychiatric injury, past earnings loss, and loss of congenial employment. Permission remained confined to those grounds and did not authorise a general challenge to findings of fact.

The appellant suffered serious injury to her left hand while undertaking work experience with the respondent, an architectural firm. Liability was not in issue at the county court trial, which concerned the assessment of damages. HHJ Cleary made an order on 6 April 2011. Longmore LJ refused permission to appeal on paper on 9 September 2011. The appellant sought reconsideration before Lord Justice Kitchin, pursuing five of her remaining grounds. The respondent was not represented. The central issue was whether those grounds had a realistic prospect of success.

Application granted. Lord Justice Kitchin considered the application only as one for permission to appeal. He did not determine the substantive merits of any ground.

1. Disability. It was arguable that the trial judge had not addressed the relevant statutory definition of disability in the Disability Discrimination Act 1995, Schedule 1 paragraph (1), including the specified sub-paragraphs. It was also arguable that the judge should have considered the appellant’s physical and psychiatric injuries together.
2. Future loss of earnings. The challenge to the judge’s refusal to apply the methodology in Ogden 6 raised a short point of principle with a realistic prospect of success. The proposed appeal could argue that the methodology had general application in personal injury cases and that general damages should not be used for future reduction in earning capacity where the methodology could be adopted.
3. Psychiatric injury. Permission was justified because it was arguable that the finding limiting the psychiatric injury to short-term PTSD lasting about four months was not open on the evidence, given the alleged continuing effects.
4. Past earnings and congenial employment. It was arguable that the assessment of past loss of earnings had been reduced by assumed unemployment unsupported by evidence. It was also arguable that the award for loss of congenial employment treated the loss as temporary when the appellant’s chosen career was extremely unlikely to be available and relevant earnings data had not been considered.

Permission was granted on those five grounds only. The order did not sanction a general challenge to the trial judge’s findings of fact.

• Court of Appeal (Civil Division): Longmore LJ refused permission to appeal on paper on 9 September 2011. On reconsideration, Lord Justice Kitchin granted permission on five grounds on 5 December 2011.
• Coventry County Court: HHJ Cleary assessed damages after a trial and made an order on 6 April 2011. Liability was not in issue.