Wayne Allard v Govia Thameslink Railway Limited

An appellate court should not interfere with an award of damages unless the first-instance judge applied a wrong legal principle, misapprehended the facts, or reached a wholly erroneous result. The same restraint applies to factual findings, evaluative assessments and case-management decisions.

Where negligence aggravates a pre-existing condition, damages must compensate only the deterioration caused by the negligence. The assessment remains fact-sensitive. A compliant statement of truth may verify a schedule of loss, but the trial judge retains case-management discretion to permit limited further evidence where necessary to avoid injustice.

The claimant brought a personal injury negligence claim against his employer after exposure at work to dichloromethane fumes. Liability was admitted shortly before trial. The Recorder found that the exposure permanently aggravated the claimant’s pre-existing asthma, awarded £27,000 general damages, and ordered further formal evidence concerning special damages and possible loss of earnings relevant to a Smith v Manchester award.

The defendant appealed the quantum award and the order permitting further evidence. The central issues were whether the Recorder had made a plainly erroneous assessment of the aggravated asthma and whether he had exceeded his case-management discretion.

1. Appeal dismissed. The defendant failed to establish any error of principle, material misapprehension of the evidence, or plainly erroneous result.
2. On quantum, the appellate court applied the restrictive approach stated in Santos v Eaton Square Garage Ltd: it could not substitute its own assessment merely because it might have awarded a different sum. The Recorder was entitled to accept the claimant’s evidence of immediate breathing difficulty and later deterioration, and to prefer the evidence of Dr Collins over Dr Hind.
3. An expert may identify inconsistencies between medical records and a claimant’s account, but must address the medical consequences on the assumption that the court may accept the factual account. It is outside an expert’s remit to decide which factual witnesses should be believed.
4. The Recorder correctly assessed the consequences of the aggravation rather than compensating the claimant for his pre-existing asthma. He was entitled to use the asthma-specific bracket in Chapter 6(D) of the Judicial College’s Guidelines and to award £27,000, having regard to persistent symptoms, increased difficulty of control, vulnerability to volatile solvents and reduced employment prospects.
5. On special damages, the High Court held that the signed statement of truth accompanying the schedule complied with CPR r 22.1 and CPR PD 22, [2.1]. A further affidavit was not required merely to verify the schedule. Nevertheless, the Recorder’s decision to permit limited further formal evidence was a case-management decision made to avoid potential injustice after the defendant had not challenged the losses in cross-examination. Applying the principles in Re TG (A Child) and In re B (A Child) (Care Proceedings: Threshold Criteria), the decision was not plainly irrational and was not open to appellate intervention.

• High Court (King’s Bench Division): The appeal against the Recorder’s order dated 3 May 2023, including the £27,000 general damages award and directions concerning further evidence on special damages, was dismissed.
• First instance: Mr Recorder Cohen KC found causation established after liability was admitted and awarded £27,000 general damages. He directed the claimant to provide further formal evidence verifying losses.