Mazo v Boyle (t/a the Westbourne & Anor)

On a renewed application for permission to appeal, permission should be granted where an arguable failure to address a central issue in a complex damages claim may have affected the assessment of future loss. A trial judge must state a clear position on the consequences of an admitted deterioration in the claimant’s injury, including its effect on capacity to work. It is insufficient to leave that conclusion implicit in a lengthy evidential record. Permission remains confined to an identifiable arguable error; broad complaints that the judge simply got the case wrong do not justify permission.

The appellant claimed damages for personal injury after tripping over a low-level marker rope. Liability was admitted, so the County Court sitting at Central London considered quantum only. Her Honour Judge Baucher awarded £156,871.82, including no damages for future loss of earnings, having rejected the contention that the appellant’s later cessation of work was caused by the accident.

Permission to appeal was refused on the papers. On renewal, the central issue was whether the trial judge had adequately addressed how the appellant’s admitted post-traumatic arthritis and continuing wrist symptoms affected her ability to work and her claim for future loss of earnings.

Lord Justice Laws granted permission to appeal on the first ground only. The remaining grounds did not merit permission.

1. Central issue. The trial concerned a complex assessment of damages. The principal complaint was that the trial judge had failed to explain the consequences of the appellant’s deterioration and arthritis for her capacity to work. The judge had found that the later cessation of work was not attributable to the accident, but the Court of Appeal had difficulty identifying where the reasoning clearly dealt with the consequences of the continuing arthritis.
2. Medical evidence. The respondent argued that the experts agreed that fusion of the distal radio-ulnar joint would address the arthritis, while removal of the metalwork was required first. That might have been the correct analysis, but the Court of Appeal could not see it clearly articulated in the judgment. The issue was therefore not suitable for disposal merely by selecting particular passages from lengthy oral evidence and cross-examination.
3. Permission. In a substantial claim, it was incumbent on the trial judge to state a clear position on this central aspect of the future-loss claim. The appellant was entitled to have the issue examined on appeal, although Lord Justice Laws expressed no view on the eventual merits. Permission was granted on ground one, with leave to amend it if appropriate. The other complaints were insufficiently arguable.

• County Court sitting at Central London: On 2 December 2014, Her Honour Judge Baucher assessed damages at £156,871.82 and made no award for future loss of earnings.
• Court of Appeal (Civil Division): On 16 February 2016, on a renewed application, permission to appeal was granted on ground one only. No final determination of the appeal’s merits was made in the supplied judgment. [2016] EWCA Civ 423