Court of Appeal
Civil Appeal No. 7 of 1987
14th September, 1988
KENNETH ST. L. HENRY J.A.

Mr. Young for Appellant
Respondent in person

Civil Appeal - Motor vehicle accident - Appeal from assessment of damages - Assessment of general damages - Award of special damages - Appeal arose from the failure of the trial Judge to include an award for loss of earning capacity in his assessment of general damages and the exclusion of a claim for the purchase of a motor car in his award of special damages - Appeal allowed - Order of trial judged varied - Award of special damages affirmed.

J U D G M E N T

This is an appeal from an assessment of damages following a judgment in respect of injuries sustained by the Appellant in a motor vehicle accident which occurred on June 16, 1984.

At the time of the accident the Appellant was 37 years old, had served in the British army for 20 years and was a Colour Sergeant stationed in Belize. As a result of the injuries he received, his left leg had to be amputated above the knee 8 days later.

The learned trial judge assessed general damages at $61,000.00 and awarded special damages in the amount of £2209.18. His assessment of general damages did not include an award for loss of earning capacity and his award of special damages excluded a claim for £1,950 for the purchase of an automatic transmission 1978 Audi motor car. The appeal is on the ground that the learned trial judge erred in failing to make these awards.

In so far as the purchase of the motor car is concerned counsel for the Appellant submitted that a proper award would be £1,350, being the difference between the cost of the vehicle purchased and the amount of £600 obtained by the Appellant for the sale of his old motor car. But in any event, he argued, since the Appellant's old motor car, a 1982 Ford, was equipped with a standard transmission, the loss of one leg made it reasonable for him to acquire a car equipped with an automatic transmission and he ought therefore to be able to recover the additional cost by way of special damages. This submission is up to a point acceptable. I do not, however, accept that it was reasonable for the Appellant to replace a 1982 Ford which was sold for £600 with a 1978 Audi for which he had to pay £1,950.

It is true that the replacement vehicle was some 4 years older than the one it replaced, but this only emphasises the disparity between the values of the respective vehicles. An appropriate award would, in my view, be the difference between the sale price of the Appellant's vehicle and the cost of a similar vehicle equipped with an automatic transmission. There is, however, no evidence as to what this would be and it is not therefore in my view possible to make an award of special damages in relation to this item.

In so far as general damages are concerned, it is the accepted practice to award inter alia damages intended to compensate a plaintiff for his handicap in the labour market, resulting from his injury (Vide Gardner v Dyson (1967) W.L.R. 1497, Archcroft v Curtis (1971) W.L.R. 1731, Smith v Manchester Corp. (1974) 17 KIR 1, Mochitia v A. Reyrolle & Co. Ltd. (1977) 1 All E.R. 9, Fister v Tyne and Wear County Council (1986) 1 All E.R. 567. Such an award is different from an award for loss of future earnings which is based on evidence as to the actual monetary loss of earnings and is therefore capable of more precise assessment. The award for loss or earning capacity is more speculative and is based on an assessment of the risk of the particular plaintiff losing his employment in the future and being then at a disadvantage in the labour market as a result of his injury and disability.

In the present case the Appellant is a comparatively young man and would ordinarily be handicapped in the labour market as a result of his injury. He is married and has two children. There is no evidence as to the likelihood of his army career being terminated. He has re?enlisted for a period of 2 years instead of the 10 years he had originally intended, but there is no evidence to indicate that he would not be accepted at the end of that 2 year period. It seems possible that?he would not in fact be thrown on the labour market until he reaches the ordinary retiring age. In the meanwhile there is, as the learned trial judge found, no clear evidence as to loss of earnings in the army. In all the circumstances I would award the sum of $5,000.00 for loss of earning capacity.

I would allow the appeal and vary the order of the learned trial judge by substituting for the award of $61,000.00 general damages an amount of $66,000.00. I would affirm the award of £2209.18 special damages.

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