Sadler v Filipiak & Anor

When assessing general damages for pain, suffering and loss of amenity arising from multiple injuries, the court should value the separate injuries before standing back to assess whether the aggregate fairly compensates for their combined effect. The total may require an upward adjustment to reflect mutually aggravating effects, or a downward adjustment to prevent double counting. No adjustment is required where the aggregate already provides fair compensation.

An appellate court should interfere with a trial judge’s assessment only where the judge applied a wrong principle, misapprehended the facts or made a wholly erroneous award. Adoption of the wrong assessment methodology permits the appellate court to reassess the award.

The claimant suffered orthopaedic, ophthalmic and psychological injuries, together with extensive scarring, in a road traffic accident. Liability was admitted and the trial in Basingstoke County Court concerned damages only. HHJ Dixon awarded £32,000 as general damages for pain, suffering and loss of amenity. He first fixed the overall award and then apportioned it among the injuries.

The claimant appealed on the ground that the judge had used the wrong valuation methodology or made an excessive deduction for overlap. The respondents sought permission to cross-appeal against awards for the past and future cost of cosmetic products used on the claimant’s scars. The central issues were the proper assessment of damages for multiple injuries and whether the award was sufficiently erroneous to justify appellate intervention.

1. Appeal allowed. The correct approach to multiple injuries is first to consider each injury and fix an appropriate figure for it. The court must then stand back and ask whether the aggregate represents reasonable compensation for the totality of the claimant’s pain, suffering and loss of amenity. Fixing an overall figure before subsuming separate valuations within it was wrong in principle: per Etherton LJ, with whom Ward LJ agreed.

2. The global assessment is not an exercise in simple aggregation. The court must consider whether the aggregate should be increased to reflect the combined effect of the injuries on the claimant’s quality of life, or reduced to remove double counting. In some cases no adjustment will be necessary. Pitchford LJ derived that approach from, among other authorities, Dureau v Evans, Santos v Eaton Square Garage Ltd [2007] EWCA Civ 225 and Smith v Jenkins [2003] EWHC 1356 (QB).

3. The claimant’s physical injuries and post-traumatic stress disorder did not significantly overlap. The disorder arose from the horror of the accident and the death of her friend, rather than from pain or the perception of physical injury. There was, however, double counting of scarring across several component valuations and some overlap between the orthopaedic injuries. Starting from component valuations totalling £47,500, a reduction to £40,000 properly reflected those matters.

4. An appellate court ordinarily interferes with an award only where the trial judge acted on a wrong principle, misapprehended the facts or made a wholly erroneous award. Here the erroneous methodology permitted a fresh assessment. The original award was also manifestly too low. The 25 per cent difference between £32,000 and the proper award was sufficiently significant to justify intervention.

5. Permission to cross-appeal refused. A trial judge may accept a claimant’s credible evidence about the experienced benefit and intended future use of cosmetic products. Scientific corroboration was not essential. The judge had considered the respondents’ objections and reduced the claims pragmatically. The £32,000 award was replaced by £40,000, with appropriate interest.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1728, allowed the claimant’s appeal, substituted £40,000 for the award of general damages and refused permission for the respondents’ cross-appeal.

2. Basingstoke County Court: HHJ Dixon awarded the claimant £32,000 in general damages for pain, suffering and loss of amenity following a trial on damages. He also allowed claims for the past and future cost of products used on the claimant’s scars.