Chin v Yates

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Mottley and Newman, JJ.A.)
• Judgment Date: 11 September 2014
• Court: Court of Appeal (Cayman Islands)
• Date: 11 September 2014

Court of Appeal

(Chadwick, P., Mottley and Newman, JJ.A.)

CHIN (as personal representative of the estate of CHIN)

and

YATES

A. Hogarth, Q.C. and M. Dors for the appellant;

J. Jones, Q.C. and J. Kennedy for the respondent.

Cases cited:

(1) Allied Maples Group Ltd v. Simmons & Simmons, [1995] 1 W.L.R. 1602; [1995] 4 All E.R. 907; [1996] CLC 153; (1995), 46 Con. L.R. 134, referred to.

(2) Archer v. UBS (C.I.) Ltd., 2009 CILR 531, applied.

(3) Blamire v. South Cumbria Health Auth., [1993] P.I.Q.R. Q1, distinguished.

(4) Chaplin v. Hicks, [1911] 2 K.B. 786, referred to.

(5) Clarke v. Maltby, [2010] EWHC 1201 (QB), applied.

(6) Conner v. Bradman Ltd., [2007] EWHC 2789, referred to.

(7) Eaton v. Johnston, 2004–05 CILR 580, applied.

(8) Flint v. Lovell, [1935] 1 K.B. 354; [1934] All E.R. Rep 200, dicta of Greer L.J. referred to.

(9) Herring v. Ministry of Defence, [2004] 1 All E.R. 44; [2003] EWCA Civ 528, applied.

(10) Kitchen v. Royal Air Force Assoc., [1958] 1 W.L.R. 563; [1958] 2 All E.R. 241; [1955–95] P.N.L.R. 18, referred to.

(11) Sadler v. Filipiak, [2011] EWCA Civ 1728, applied.

(12) Simon v. Helmot, 2011–12 GLR 517; [2012] Med. L.R. 394; [2012] UKPC 5, considered.

Tort-personal injuries-damages-loss of future earnings-loss of earnings calculated as projected earnings pre-incident minus projected earnings post-incident, given (on balance of probabilities) likely career path pre-incident, likely career path post-incident and likely remuneration-to consider plaintiff”s employment history, record, progress, character and general reliability; type of work capable of doing post-incident; and stability of work at time of incident-not to apply loss of a chance test merely because impossible to say for certain that would have retained job until retirement

Tort-personal injuries-damages-ankle-permanent damage to right ankle, incomplete recovery and intermittent discomfort to left ankle-quantum

The respondent brought an action against the appellant for damages for injuries caused in a traffic collision.

The respondent, a 47-year-old man who was employed as the Buildings and Grounds Manager of the Turtle Farm at a salary of $90,000 per annum, was involved in a collision with the deceased. He sustained serious injuries to both of his ankles and, although the left ankle healed sufficiently to bear weight, the right ankle was permanently injured. As a result of his injury, the respondent was unable to continue in his position as Buildings and Grounds Manager and was transferred to the position of Freedom of Information Manager at a salary of $62,000 per annum. Two years later, he was made redundant and obtained employment as a real estate agent. He subsequently opened an ice cream business in an attempt to supplement this income. Although he was required to close this business and had to search for alternative employment abroad, he eventually re-opened it and resumed working as a real estate agent.

The respondent brought an action against the appellant for, inter alia, compensation for his injuries and the loss of future earnings from his position as Buildings and Grounds Manager. The appellant did not contest liability for the collision but submitted, inter alia, that the respondent had not lost his position because of the collision but because it had no longer

been economically viable and that any losses of future earnings should be reduced because he was morbidly obese and smoked.

The Grand Court (Hall, Chief Magistrate) referred to the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases and found that the damage to the left ankle was ‘moderate’ (justifying $25,709.03 in damages) and that the damage to the right ankle was ‘severe’ (justifying $48,393.47 in damages). It further found that the respondent”s anticipated earnings after the collision were $35,000; that, despite the respondent”s comment that nobody could say for certain how long he would have been employed as the Buildings and Grounds Manager, the respondent had lost his job because of the collision; that he would have stayed employed at the same salary until retirement; and that as his health issues would not have caused him to die before he retired, they did not justify any reduction in future earnings.

When calculating the loss of future earnings, the Grand Court subtracted the amount which the respondent was likely to earn after the collision from the amount which he would have earned but for the collision. To do this, the court projected his earnings using the Ogden Tables, Table 9 figure for a 47-year-old man expected to work until a retirement age of 65, with no reductions for his health, but with a 2.5% general reduction to account for a rate of return (14.05). In order to determine the amount which the respondent would have earned but for the collision, the court multiplied 14.05 by 0.86 (being the figure from the Ogden Tables, Table A for a 47-year-old, non-disabled male who was expected to work until retirement at 65). This figure (12.08) was then multiplied by his salary of $90,000, resulting in projected earnings of $1,087,200. The court subsequently calculated the respondent”s anticipated earnings after the collision by multiplying 14.05 by 0.48 (being the figure from the Ogden Tables, Table B for a 47-year-old disabled male who was expected to work until retirement at 65). This figure (6.7) was then multiplied by his new income of $35,000, resulting in projected earnings of $234,500. Accordingly, the court awarded, inter alia, general damages for the respondent”s injuries of $74,102.50 (being $25,709.03 + $48,393.47) and $852,700 for loss of future earnings (being $1,087,200 – $234,500).

The appellant appealed on the ground that the Grand Court”s findings did not contain sufficient analysis and should be revised. She submitted that (a) the court had been wrong to award total general damages of $74,102.50 because (i) it should have found that the injury to the left ankle was merely ‘modest’ rather than ‘moderate,’ and (ii) it had failed to consider the total amount awarded by reference to the guidelines for comparable awards for injuries to both ankles; (b) the court had failed to consider the possibility that the respondent”s employment situation and salary might have changed before his retirement. It should therefore have considered what the ‘likely pattern’ of his future earnings would have been, particularly as there were cutbacks which would have threatened his job; (c) the future losses had been inappropriately calculated as the court

should have considered the respondent”s health issues; and (d) the court had miscalculated the respondent”s anticipated earnings, particularly as it did not include income from the ice cream business.

The respondent submitted in reply that (a) the court had appropriately valued his injuries, particularly as the right ankle would cause him permanent pain and difficulties; (b) there was nothing to suggest that he would not have kept the same employment and salary until he retired; (c) the court had been correct to find that his future health issues would not have an impact on his future earnings; and (d) the court had been correct to discount any income from the ice cream business as it was not a reliable source. The respondent further submitted that the court had been wrong to apply a general 2.5% discount to the loss of future earnings calculations. This discount arose from the UK Damages Act 1996, but there was no equivalent legislation in Cayman and therefore no justification for the discount.

Held, varying the award:

(1) The general damages would be reduced. Under the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases, 12th ed. (2013), a moderate injury was one where, inter alia, the injured party had difficulty walking on uneven ground or standing or walking for long periods of time. The damage to the respondent”s left ankle, however, was much better categorized as ‘modest,’ where the recovery was incomplete, intermittent discomfort would arise and a sum of £6,500 was appropriate. Further, although it was clear that the damage to the right ankle was appropriately characterized as ‘severe,’ the damage did not merit the maximum possible award-rather, an award of £34,500, which was still close to the maximum, was more appropriate. This gave an initial total award of £41,000. When viewed in totality, this was well within the ‘very severe’ bracket for ankle injuries. Although it was clear that the award for the left ankle could be seen as discrete compensation and was not, therefore, being compensated at a higher rate than was justified, the court would reduce the total to £40,000 ($54,000), thereby bringing it into the comparable ‘severe’ bracket. The court also, however, uplifted the award to $60,000 to compensate for the higher cost of living in Cayman (paras. 20–27).

(2) The Grand Court had adopted the correct approach for calculating the respondent”s loss of earnings. When determining damages for loss of earnings, the court was required to consider, on the balance of probabilities, what career path the plaintiff would be likely to have taken had the collision not occurred. The court would then consider, on the balance of probabilities, what work the respondent was able to undertake following the collision, whether that would be less remunerative than the work he would otherwise have undertaken and how much difference there was between the two amounts. This required a consideration of the respondent”s employment history, record and progress; his character and general reliability; the type of work which he was capable of doing; and the

stability of the work he was doing at the date of the collision. Further, the respondent”s statement that nobody could say for certain whether he would have still been employed but for the collision did not support the...