Challenging the Magnitude of General Damages Awarded to Industrial Disease Claimants on Appeal: Essex County Council & 2 Ors v Davies & 8 Ors [2019] EWHC 3443

In December 2019, judgment of the High Court was handed down in Essex County Council & 2 Ors v Davies & 8 Ors [2019] EWHC 3443.

The case concerned both employers’ and occupiers’ liability claims for injuries emanating from carbon monoxide poisoning.

Symptoms varied from claimant to claimant, but included ‘severe headaches, nausea, lethargy, irritability, vomiting and loss of concentration in association’.

At 1st instance, His Honour Judge Roberts awarded general damages for pain, suffering and loss of amenity (PSLA), ranging from £7,000 to £15,000.

These were based on the relevant disease bracket guidance, located in the 14th edition of the Judicial College Guidelines, and were ‘generally in accordance with the length of exposure (£15,000 representing exposure over a period of a little over two years)’.

The defendants appealed, on the grounds that there were ‘no specific guidelines’ addressing the injuries in issue and that this resulted in ‘excessive’ PSLA awards.

On appeal, Mr. Justice Saini addressed the issue before him by giving weight to the dicta of Lord Justice Greer, in Flint v Lovell [1935] 1 K.B. 354, at the Court of Appeal:

‘In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled’ [page 360].

In so doing, he observed an error of principle with the defendants’ ‘arbitrary “lopping off”’ of one-third from each award:

‘If one can arbitrarily “knock off” one third of the damages what is the appealable error in the Judge having decided to award that extra third?’

Having accepted that the pre-requisite for ‘second-guessing’ HHJ Roberts’ orders for damages was that his assessments had fallen ‘outside the bounds of reasonableness’, Saini J went on to conclude, at paragraph 39:

‘The Appellants have not advanced before me any judicially applicable standard by which I can conclude that the awards were excessive. They may be generous but they are not capable of being disturbed on appeal’.

As such, the defendants’ appeal on quantum was dismissed.

In this specific case, the trial judge was regarded as having held ‘a unique position’:

‘The Judge's assessment of PSLA derived from the application of his findings of fact and his impression of the Respondents in the context of the recorded contemporaneous and expert medical evidence.

HHJ Roberts had benefitted from ‘full insight’ into the daily effects (and wider) of the claimants’ exposures and was able to draw inferences from ‘full medical and occupational records’ throughout cross-examination.

Full text judgment can be accessed here.