April 6, 2017

Claimant discontinues appeal for £4.2 million

A Claimant, having tripped and suffered a broken wrist at a London gastro-pub, for which she sought about £4.2 million, was appealing an already generous award of damages and demanding an increase in loss of earnings based on her developing worsening arthritis in her wrist.

The Facts

On 23 August 2009, the Claimant was at The Westbourne Public House when she tripped over a low-level marker rope at the edge of the terrace. She attended the hospital where X-rays confirmed she had fractured her left wrist. She subsequently underwent surgery to insert a metal plate and screws. Contemporaneous medical notes suggested she made an 'excellent' recovery. By the time of the trial she had developed arthritis in the wrist, although the Judge found that it did not stop her from working.

The Claimant was an HR manager and had set up her own limited company. Her career centred on short-term contracts for London Borough Councils, where she would be paid between £200 and £500 a day, market dependent. Following the fall, she returned to work some seven months later in April 2010. She continued to work for three years until May 2013, when she claimed her orthopaedic expert advised that she should give up work as her work was damaging her wrist and making her arthritis worse. She had taken no ergonomic advice and sought no assistance in finding other work.

Her medical circumstances had complicated a matter of weeks before she returned to work following the incident. In April 2010, she was diagnosed with a heart condition, namely endocarditis, and underwent surgery and two further operations to minimise scarring a year and a half later. An expert Psychiatrist suggested it was this condition, and not the incident in question, which caused Ms Mazo to go into a decline. There was also some evidence that the Claimant was prone to some kind of depression before the accident.

Ms Mazo claimed her career has been destroyed, her mental health and social life has been ruined and that she has three disabilities: arthritis, scarring and depression, all caused by the accident. She claimed that the scars on her wrist make it look like she has been self-harming and are very distressing, although the Judge in the County Court commented that 'it was so faint it was not visible at a short distance.'

County Court decision

The Claimant was awarded a total £156,871 in the Central London County Court.

General damages were assessed at £28,000 to take into account that the injury left the Claimant with some permanent disability, for the scarring and mild adjustment disorder and because the Claimant may need two further operative procedures.

The Judge decided the Claimant should not have ceased working when she did in May 2013 and therefore is not entitled to any award for future loss / loss of earnings and, in any event, the Judge was not persuaded that an interim HR consultant warranted any such award.

However, an award of £100,000 was made in respect of two years’ loss of earnings, based on her last full year’s earnings; in order for her to have the metalwork removed in the future and also to have a fusion operation which the orthopaedic experts agreed would resolve the symptoms of her arthritis, together with CBT. The Judge rejected the suggestion that the Claimant had suffered from PTSD. A smaller award was made for treatment costs, with no allowance for personal care and assistance or travel assistance.

In respect of special damages, a figure (£12,720.07) was accepted for the initial loss of earnings for the period 2009/2010 and there was no loss between April 2010 and May 2013. The Judge also found the Claimant had not proved that she could have worked at the increased rates she claimed.

A small miscellaneous award was made and, in respect of care, the contention that she should be entitled to the cost for activities such as leg waxing and hair washing was rejected entirely. She was awarded £1,000 for gratuitous care in the initial stages.

Appeal

Leave to appeal was granted as the single judge of the Court of Appeal was concerned the Trial Judge had not considered in enough detail the future progress of Ms Mazo’s arthritis. The appeal was strenuously defended. However, before the appeal the Claimant discontinued her appeal and settled for just under £160,000 compensation.

The main issue on the appeal would have been a re-examination of the evidence as to the progression of the arthritis. The Defendants’ position would have been that the experts were largely agreed on the fusion and that, in preferring the Defendants’ expert where they did not agree, the Judge acted entirely properly. The Defendants also would have taken the point that the Judge’s findings are entirely and closely in keeping with the subsequent approach of the Court of Appeal in Billett v MOD [2015] EWCA Civ 773.

What can we learn?

  • It is important to remember that whatever the size of claim, it is for the claimant to prove their case, and not for the defendant to disprove it. In this case the Claimant failed to serve any statements in support of her loss of earnings claim.
  • When considering claims for future loss of earnings or loss of opportunity, a court should be conservative when faced with claims which are not supported by independent witness evidence.
  • It is always important to get medical experts on board at an early stage. In this case the Orthopaedic expert examined the Claimant pre-action and so he was in a very good position to give evidence on her recovery from the accident.
  • In cases where there is an ongoing injury or minor disability and where there is a possibility of an impact on the ability to work in the future, the appropriate approach for damages should be to make a lump sum Smith v Manchester/Blamire award to reflect the future risks in the employment market.