Pawar v JSD Haulage Ltd

An appellate court admits fresh post-trial evidence only sparingly, applying the overriding objective and the need for finality. Evidence that merely repeats trial material will not qualify. Failure to mitigate reduces damages only by sums the claimant could have earned with reasonable mitigation; it does not extinguish the claim, and the defendant bears the burden of proof. Fitness to seek work is not the same as immediate employability. Assessment must allow for retraining, sickness, pain, medication and time to secure employment. Residual earning-capacity loss cannot be awarded on speculation where no reliable basis for calculation exists. Civil Procedure Rules 1998 Part 36 offers govern the proceedings in which they are made, although they may be considered in assessing appeal costs.

Mr Gurtej Pawar, an HGV driver employed by JSD Haulage Ltd, suffered serious neck injuries when a hydraulic ramp on his lorry collapsed. Liability was admitted, but causation and quantum were disputed. Following a short trial, Mrs Recorder Wilson in the Birmingham County Court awarded damages of £76,234.14, giving judgment for £72,417.14 after deductions. No award was made for future losses.

The claimant appealed on six broad grounds, challenging the assessments of general damages, past and future earnings, earning capacity, loss of services and treatment costs. He also sought to adduce fresh medical, employment and benefits evidence. The central issues were whether the recorder had erred in assessing mitigation and future loss, and whether the appeal court should interfere with the awards and costs orders.

The appeal was allowed to a limited extent. Mrs Justice Thirlwall DBE gave the first judgment, with Lord Justice Hamblen and Lady Justice Sharp DBE agreeing.

1. The application to adduce fresh evidence was refused. Under Civil Procedure Rules 1998 rule 52.11(2), evidence not before the lower court is admitted only exceptionally. The principles in Ladd v Marshall [1954] 1 WLR 1489 were persuasive. The proposed evidence was substantially consistent with the trial evidence and added nothing material.
2. The £19,100 award for pain, suffering and loss of amenity was within the applicable guideline bracket. The recorder was entitled to place the case at its lower end because the accident had rendered pre-existing degenerative changes symptomatic. The injury did not fall within the severe bracket.
3. The finding that the claimant had failed to mitigate was open to the recorder. However, failure to mitigate did not extinguish the claim. The respondent bore the burden of proving what the claimant could have earned. The claimant was entitled to eight months’ loss at his pre-accident rate while seeking work, followed by loss calculated against the minimum wage. This produced additional awards of £11,700 and £1,800 for past earnings and £10,800 to March 2017 for future earnings.
4. No award was justified for loss of earning capacity after March 2017. The evidence supplied no reliable multiplicand and any assessment would have been speculative. The approach considered in Blamire v South Cumbria Health Authority [1993] PIQR was not appropriate on these facts.
5. The claims for loss of services and future treatment costs failed for want of sufficient evidence. A modest conventional claim remains subject to the claimant’s burden of proof.
6. Interest on general damages ran at 2% from service of the claim form, following Jefford v Gee [1970] 2 QB 130 and Birkett v Hayes [1982] 1 WLR 816. Special damages attracted interest at 0.25% from the accident to hand down, while genuinely future earnings attracted none. The trial costs order was varied. The claimant recovered the costs of the appeal, subject to the fresh-evidence application and appeal-bundle costs.

• Court of Appeal (Civil Division) — In Pawar v JSD Haulage Ltd [2016] EWCA Civ 551, the appeal was allowed to a limited extent. The damages and costs orders were varied.
• Birmingham County Court — Mrs Recorder Wilson awarded damages of £76,234.14 after trial and gave judgment for £72,417.14 after deductions. No award was made for future losses.