A classic example of a Claimant’s failure to prove certain heads of damage.
In the case Lal v Reeder [2023] EWHC 1437 (KB) the Claimant had not put any evidence before the Court in support of a claim for loss of part time earnings. In addition, there was contradictory medical evidence put forward by the Claimant in relation to a claim for psychological injuries.
The Claimant was injured in a road traffic collision and brought a claim for damages. Liability was admitted. The Claimant’s Schedule of Loss claimed £105,154.39, the Defendant’s counter schedule put the claim at £10,400.00.
The Trial Judge gave judgment for £18,342.66 plus costs to a certain date, with an order that the Claimant pay the Defendant’s costs thereafter due to the Claimant failing to beat a Part 36 offer.
The Claimant appealed. The notice of appeal had 138 grounds, seeking to overturn many aspects of the judgment. Permission to appeal was granted on one primary ground relating to the Judge’s decision to refuse to award to the Claimant damages for her asserted loss of part time earnings as an agency nursing assistant. The application for permission on all other grounds of appeal was adjourned over to be considered verbally at the appeal hearing.
When opening the appeal, the Appellant abandoned all grounds of appeal save for two:
- That the Judge was wrong or irrational to fail to award the Claimant damages for past part time loss of earnings as an agency nursing assistant for 6-8 months after the accident; and
- That the Judge was wrong or irrational to fail to award the Claimant damages for pain, suffering and loss of amenity for travel anxiety after the accident.
On appeal the Judge’s decision not to award damages for past loss of earnings was upheld. The Claimant had failed to put evidence before the Court that showed that she would have worked part time but for the accident.
- “The Claimant relied on appeal on her 2016 and 2018 filed witness statements in which she made it clear that she had worked 8 shifts between May and December 2013. The Appellant submitted that the schedule was wrong to say 1-2 shifts. In his elegant and clear submissions Mr. McKie also relied on the agency fees evidence in the documents which showed that the Claimant had earned between £100 and £280 net per shift in 4 shifts worked in August 2012, before the accident, so submitted that the sums claimed as lost agency fees after the accident, at £278.77 per week, were modest and properly evidenced. He restricted the claim to the 8 months allowed by the Judge for the loss of earnings from the part time work in the hospital. He submitted that it was not fair to criticise the Claimant for the inadequate pleading.”
- “Whilst the Appellant’s counsel’s attractive submissions might have been persuasive before the trial Judge, they do not justify this Court, on appeal, finding that the Judge’s findings were plainly wrong or irrational. The schedule of loss was signed by the Claimant. Statements of truth are important matters not to be taken lightly in my judgment. In addition, there was no evidence put before the Judge (or me) which showed that the Claimant had set out in her witness statements what she would have done by way of agency work but for the accident. The evidence of what the Claimant earned at her previous second part time job at another hospital was longer in the past and so less relevant and was not mentioned in the judgment. The Appellant did not rely upon it. The burden of proof lay on the Claimant to set out what she would have done by way of agency work from September 2012 to May 2013. She did not do so. The Judge found that she failed to discharge the burden. I note that, in the light of her work for her PhD, her main part time job at the hospital, her preparation for her entry to medical school and her choice not to take any work from the agency between 2.7.2012 when she was actuated to be able to take work and 2.9.2012 when the accident occurred, save for 4 shifts and her desire to run the London Marathon, the Claimant’s space for agency work was probably restricted. There was a gap in the Claimant’s evidence on the but for projection in relation to agency work and her evidence was found to have been unreliable by the Judge in any event.”
The Judge commented “In my judgement the refusal to award agency earning loss was a finding which the Judge was entitled to have made on the evidence before the Court. It was not wrong or irrational.”
The Judges decision not to award damages for travel anxiety was also upheld. There were two expert reports. One contradicted the other.
- The Appellant submitted that the report of Mr. Lockyer, dated August 2014, which was not challenged by cross examination, and the proof of the CBT which the Claimant undertook, as a result of Mr. Lockyer’s advice, and the notes of the treating psychologist, Miss Williams, which clearly set out the Claimant’s travel anxiety and recovery by July 2015, were hard evidence of the diagnosed anxiety, which were improperly rejected by the Judge. Indeed, the Claimant recovered in line with the prognosis of Mr. Lockyer. Once again, these were cogent and logical submissions from Mr McKie.
- However, the Judge was concerned about the Claimant’s veracity. The key evidence which the Judge took into account when refusing to find that the Claimant suffered travel anxiety was the report of Dr McCollum. In that report, provided 9-10 weeks post-accident, and carrying a CPR part 35 statement of veracity, the Claimant had said, and the GP had recorded, that she had suffered no anxiety or psychological symptoms since the accident. The Claimant served and relied on Dr McCollum’s report. If she had disagreed with it, she should not have done so. If, as the Claimant asserted both at trial and to Mr. Lockyer, the anxiety emerged straight after the accident, such that the Claimant was unable even to use the hire care provided to her for a month, then that report should not have been served or relied upon.
- In addition, the Judge took into account that the Claimant had a hire car for a month after the accident. He clearly, by inference, rejected her assertion that she had not used it. Furthermore, the Judge was troubled by the fact that the Claimant had claimed for driving 238 miles in May 2013 when, on her evidence to the Court, she had been unable to drive for either 10 months after the accident or two years.
The Judge concluded “in my judgment, on this evidence, and for the reasons clearly explained in the judgment, the Judge was entitled to prefer and accept the evidence in the Claimant’s own contemporaneous GP expert report and reject the Claimant’s later self-reports to Mr. Lockyer. The reasons given were not irrational or wrong.”
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03/08/2023