Proportionality and the production of evidence

McCrae v Chase International Express Ltd: CA, 14 March 2003

The claimant suffered serious fractures of his left wrist in a road traffic accident when he came off his motorcycle.

He had worked with his employers for only seven weeks prior to the accident and had a varied job history.

As a result of the injuries, he could not ride a motorcycle and was left with permanent residual problems which prevented him working on heavy jobs.

The judge seems to have approached the quantification of the claim with a very broad brush.

For instance, the evidence of loss of congenial employment amounted to a single sentence in the claimant's statement, namely: 'The claimant very much enjoyed riding his motorcycle (it was a hobby of his) and, therefore, found his work as a motorcycle courier extremely satisfying'.

Lord Justice Kennedy readily punctured this conceit by stating: 'It does inevitably beg the question as to why, if it was the sort of work he found extremely satisfying, it had taken him about 20 years of working life to reach that employment, never having previously worked from a motorcycle before.'

The deputy district judge took the effects of the accident on the claimant's ability to ski and carry out social motorcycling as factors in awarding him 2,000 for this head of damages.

Unsurprisingly, these damages were quashed with his Lordship stating that it was not possible to say that the claimant was 'disadvantaged and aggrieved' by losing a job that he had been performing for seven weeks prior to the accident.

The judge adopted a similar approach in relation to future losses in which there was not even evidence as to whether the pre-accident income was gross or net; and a DIY award in which he allowed a multiplier to the age of 70 when the only limitation the claimant appears to have had was in relation to 'performing heavy jobs'.

It is the comments of Mr Justice Newman sitting with Lord Justice Kennedy that are of note.

In trying to find the aforementioned balance, his Lordship said there was an ineluctable need for a claimant to produce evidence capable of supporting the conclusions to which the court is invited to come.

He criticised the judge in stating that 'the sufficiency and quality of the evidence and the apparent alacrity with which he felt able to make assumptions gives cause for concern'.

He continued: 'Approaching a matter with a broad brush does not mean an absence of material is acceptable.'

It is trite law to repeat it, but the basic tenet is that it is a claimant's task to prove his case.

However, with proportionality of costs becoming ever more important, balancing this with ensuring that there is proper evidence is an increasingly modern dilemma (not that it was suggested as an issue in this case).

The conclusion one reaches from the Court of Appeal's comments is that this judgment provides a useful document for production at case management conferences and on assessment of costs in fast-track trials.

See [2003] Gazette, 10 July, 40

By Simon Allen, Russell Jones & Walker, Sheffield