Awards for minor injuries
Two neck injury cases, recently reported in Kemp News, illustrate the difficulties in assessing damages and anticipating what judges might award.
In N -v- Reilly (Croyden County Court 9 June 2004) the claimant, a child aged six at the time of injury and eight at the date of trial, suffered soft tissue whiplash injury of the cervical spine. She suffered headaches for two days. Neck pain developed the day after the accident and gradually improved during the following seven months. She missed two or three days of school. On examination by the GP, one week after the accident, she was advised to take paracetamol. She took this for five months and again after another two months when her neck symptoms flared up for one week. At seven months after the accident, the neck symptoms had resolved. The claimant was anxious about travelling by car for two months but then her confidence returned. The judge awarded £1000 general damages.
In R -v- Patel (Bow County Court 27 July 2004) the claimant was a child of 11 at the time of injury and 15 at the date of trial. She suffered soft tissue injuries to her neck and thighs while travelling as a passenger in a car when it was struck from the rear. She took paracetamol for pain relief during the first few days. She was unable to participate fully in sports for about two weeks. The symptoms in the neck and thighs had fully settled within two to three weeks after the accident. General damages were awarded of £600.
Court of Appeal reduces future loss and Smith claims
Employers appealed against an award of damages to the claimant who had suffered a back injury while lifting heavy gas canisters. The injury was diagnosed as a disc herniation causing permanent damage. He continued working for the defendants but missed out on promotion because of the accident. Medical evidence showed that he had a pre-existing disc degeneration but that the most likely cause for the disc herniation was the accident. The judge awarded a full future loss of earnings using a multiplier of 14.72 by reference to the Ogden tables, and also made a Smith -v- Manchester award of £30,000.
The defendants appealed on the grounds that the judge had misconstrued the medical evidence in relation to whether the claimant would have suffered from a disc herniation within a short period if he had not had the accident at work, and that the claimant had failed to show that he was at substantial risk of finding himself on the labour market or that his disability placed him at a disadvantage compared with an able bodied person.
The Court of Appeal held that, on the medical evidence, while there was more than a fanciful chance that the claimant suffering from a disc herniation without the accident, it was not inevitable that he would do so. He was at a special risk not reflected in the Ogden tables and some discount should have been given to the multiplier, which the court reduced to 11. On the Smith claim, while the absence of positive evidence that the claimant might lose his job was not fatal, damages were likely to be assessed much lower than if there was evidence. The court found that, if he was thrown on the labour market, he would be at a substantial disadvantage compared to an able bodied person but the award of £30,000 was too high as the judge was estimating the prospect of risk where there was no evidence and the court leant against speculation. The correct amount should be £10,000.
Evans -v- Tarmac Central Limited. Court of Appeal 12 December 2005.
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