Carman Mazo -v- S Boyle and E Boyle T/a The Westbourne MLT C 2016
This case has attracted a large amount of media attention as it has recently emerged that the Claimant, having tripped and suffered a broken wrist a London gastro-pub, for which she sought about GBP 4.2 million, is appealing an already generous award of damages to demand an increased loss of earnings claim based on her developing worsening arthritis in her wrist.
On 23rd August 2009, the Claimant was at The Westbourne Public House when she tripped over a low-level marker rope at the edge of the terrace. She attended the nearby St Mary’s Hospital where X-rays confirmed she had fractured her left wrist, which was initially placed in plaster. She subsequently underwent surgery to insert a metal plate and screws. Contemporaneous medical notes suggested she made an ‘excellent’ recovery. By the time of the trial she had developed arthritis in the wrist, although the Judge found that it did not stop her from working.
The Claimant was an HR manager and in the year prior to the incident in question, the Claimant had set up her own limited company. Following the fall, she returned to work some seven months later in April 2010. Her career centred on short-term contracts for London Borough Councils, where she would be paid between GBP 200 and GBP 500 a day, market dependent.
She continued to work for three years until May 2013, when she claimed her orthopaedic expert advised that she should give up work as her work was damaging her wrist and making her arthritis worse. She had taken no ergonomic advice and sought no assistance in finding other work. The Judge found that the orthopaedic expert had given her no such advice.
Her medical circumstances had complicated a matter of weeks before she returned to work following the incident. In April 2010, she was diagnosed with a heart condition, namely endocarditis, and underwent surgery and two further operations to minimise scarring a year and a half later. An expert Psychiatrist suggested it was this condition, and not the incident in question, which caused Ms Mazo to go into a decline. There was also some evidence that the Claimant was prone to some kind of depression before the accident.
Ms Mazo claimed her career has been destroyed, her mental health and social life has been ruined and that she has three disabilities: arthritis, scarring and depression, all caused by the accident. She claimed that the scars on her wrist make it look like she has been self-harming and are very distressing, although the Judge in the County Court commented that ‘it was so faint it was not visible at a short distance.’
County Court decision
General damages were assessed at GBP 28,000 to take into account that the injury left the Claimant with some some permanent disability, for the scarring and mild adjustment disorder and because the Claimant may need two further operative procedures. The Judge acknowledged the necessity to assess general damages as a whole.
Although during her last contract the Claimant was earning GBP 500 a day, that was rather higher than her usual earnings. The Claimant insisted her career was on an ‘upwards trajectory’ and, if she had continued working, she could have eventually earned up to GBP 1,500 per day.
The Judge decided that the Claimant should not have ceased working when she did in May 2013 and therefore is not entitled to any award for loss of earnings and, in any event, the Judge was not persuaded that an interim HR consultant warranted any such award.
In respect of special damages, a figure (GBP 12,720.07) was accepted for the initial loss of earnings for the period 2009/2010 and there was no loss between April 2010 and May 2013. The Judge also found that the Claimant had not proved that she could have worked at the increased rates she claimed. 2
A small miscellaneous award was made and, in respect of care, the contention that she should be entitled to the cost for activities such as leg waxing and hair washing was rejected entirely. She was awarded GBP 1,000 for gratuitous care in the initial stages.
The Judge decided that the Claimant was not entitled to any future loss / loss of earnings as she should not have given up work and did not act reasonably. However, an award of GBP 100,000 was made in respect of two years’ loss of earnings, based on her last full year’s earnings, in order for her to have the metalwork removed in the future and also to have a fusion operation which the orthopaedic experts agreed would resolve the symptoms of her arthritis, together with CBT. The Judge rejected the suggestion that the Claimant had suffered from PTSD. A smaller award was made for treatment costs, with no allowance for personal care and assistance or travel assistance.
The Claimant was awarded a total GBP 156,871 in the Central London County Court.
Leave to appeal has been granted as the single member of the Court of Appeal was concerned that the Judge had not considered in enough detail the future progress of Ms Mazo’s arthritis. Laws LJ stated "it seems to me that she is entitled to have the matter examined in this court." Ms Mazo will not be allowed to reopen issues of fact, such as the Judge’s findings as to her hourly rate.
No date has yet been set for the hearing. The main issue on the appeal will be a re-examination of the evidence as to the progression of the arthritis. The Defendants’ position is that the experts were largely agreed on the fusion and that, in preferring the Defendants’ expert where they did not agree, the Judge acted entirely properly. The Defendants also take the point that the Judge’s findings are entirely and closely in keeping with the subsequent approach of the Court of Appeal in Billett v MOD  EWCA Civ 773.
What can we learn?
i. It is important to remember that whatever the size of claim, it is for the claimant to prove their case, and not for the defendant to disprove it. In this case the Claimant failed to serve any statements in support of her loss of earnings claim
ii. When considering claims for future loss of earnings or loss of opportunity, a court should be conservative when faced with claims which are not supported by independent witness evidence
iii. It is always important to get medical experts on board at an early stage. In this case the Orthopaedic expert examined the Claimant pre-action and so he was in a very good position to give evidence on her recovery from the accident
iv. In cases where the is an ongoing injury or minor disability and where there is a possibility of an impact on the ability to work in the future, the appropriate approach for damages should be to make a lump sum Smith v Manchester/Blamire award to reflect the future risks in the employment market