Before:

LORD JUSTICE SWINTON THOMAS

LORD JUSTICE BROOKE and

LADY JUSTICE HALE

ANDREW SANDRY

Claimant/Appellant

-v-

V JONES

Defendant/Respondent

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Mr Wyn Williams QC (instructed by Messrs Hutchinson Morris & L C Thomas, Neath) appeared on behalf of the Appellant Claimant.

Mr Neil Moody (instructed by Messrs Palser Grossman, Cardiff) appeared on behalf of the Respondent Defendant.

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JUDGMENT

(As Approved by the Court)

©Crown Copyright1

1.	LORD JUSTICE SWINTON THOMAS:This is an appeal, with the leave of this court, by the claimant against an order made by District Judge Jenkins on 18th June 1999, whereby he gave judgment for the claimant for £43,613, including interest, and made consequential orders in relation to costs and other matters. The claimant, in the papers, through his counsel, made an application to adduce further evidence, but Mr Wyn Williams QC, on his behalf, did not pursue that application.
2.	The claim arose as a result of a road traffic accident which occurred on 16th December 1993, when the defendant's motor-car collided with the rear of the claimant's vehicle, causing him to be injured, primarily by way of a whiplash injury to his neck. The proceedings were commenced by writ on 8th November 1996 and in due course liability was admitted, with the result that the judge was trying the issue as to damages only.
3.	I wish to make a preliminary point about this case at the outset of this judgment. Although the case involved an assessment of damages only, it was, at least on the papers, a substantial claim and it involved contested medical and accountancy issues. Consultant orthopaedic surgeons were called on both sides and accountants were also called. Having heard that evidence and a volume of lay evidence, the judge's judgment ran to some three and a half pages only. There may have been some compelling reason why it was necessary for this particular case to be tried by a district judge, in which case any comments that I make will be inappropriate. However, if there was no such compelling reason, I do think, as does the learned lord justice who gave leave to appeal, that it is more appropriate that a case of this complexity should be tried by a circuit judge rather than by a district judge. It appears (and it was, in so far as he was able to do so, confirmed by Mr Moody, counsel for the defendant) that trial by a district judge was a course taken with the consent of both parties. Again, it seems to me that it is incumbent on advisers to parties also to give careful consideration to the appropriate level of judicial expertise necessary to try a particular case. Having said that, I now leave that topic altogether and move to the appeal.
4.	The claimant's claim fell to be decided under the following headings:
5.	(1)   General damages for pain and suffering and loss of amenity
6.	The judge assessed the damages recoverable under this heading at £15,000.
7.	(2)   Loss of profits in relation to a business carried on by the claimant in a mobile van
8.	This was the most substantial claim and I will have to return to it in a little more detail later. The claimant claimed a substantial sum on a multiplier/multiplicand basis. That basis was rejected by the judge and he awarded the claimant the sum of £15,000 as an assessment of the claimant's disadvantage in the labour market (known colloquially as Smith v Manchester damages).
9.	(3)   Domestic assistance
10.	The judge awarded £5,700 under that head.
11.	(4)   The costs of travel, including the additional expense incurred in buying a vehicle with automatic transmission as opposed to manual transmission
12.	That claim was rejected by the judge.
13.	(5)   Medical expenses
14.	The judge allowed a claim in respect of the cost of pain killers.
15.	In addition, interest, as appropriate, was allowed.
16.	In this appeal Mr Wyn Williams QC attacks one finding of the judge only: that is, the judge's rejection of the claimant's claim for loss of profits in respect of the mobile van food business and his failure to award damages on a multiplier/multiplicand basis.
17.	In March 1990 the claimant (who was born on 11th August 1962) and his wife purchased the business, which was both a café/take-away business and a van delivery business, in Milland Road, Neath. There was extensive and conflicting accountancy evidence as to the profitability of the business. We have not been concerned with that aspect of the case on this appeal. Not altogether surprisingly, the documents and the accounts were not as full as they might have been in some other businesses, but no legitimate criticism can be levelled at the claimant or his wife in that regard.
18.	As I have said, the accident in December 1993 resulted in the claimant sustaining a whiplash injury to his neck. I will have to refer in a little detail in a moment to the medical reports. In addition to the pain that he sustained in his neck, the claimant later also suffered pain in his back, but the judge found, based on uncontested medical evidence, that the pain suffered by him was not connected with the accident the subject-matter of the action. The claimant continued to suffer and, it would appear, still suffers from pain in his neck. He found difficulty in driving the van. The major issue that arises in the case is as to whether his inability to carry on with the mobile van business was caused by the injury to his neck or by the pain that he was suffering in his back, or a combination of the two.
19.	Following the accident, the claimant from time to time took periods away from work. In 1996 he employed a full-time helper in the van and the judge allowed the costs of employing that helper as a legitimate head of damage. However, the claimant found that it was not possible to carry on the mobile van business profitably with the additional costs of an assistant and, according to his evidence, as a result of that he ceased trading with the van in October 1997. The claimant, in his pleadings and in his evidence, attributed his inability to carry on with the mobile van food business to the pain that he had suffered, and was suffering, in his neck as a consequence of the accident.
20.	The claimant's accountants assessed the net annual future loss as a result of giving up the van business at £12,797 per annum. On an accountancy basis (that is, assuming that the claimant's inability to carry on with the business was attributable to the accident and that he would not be able to obtain equivalent employment elsewhere), the defendant assessed his loss at £2,427 per annum. The parties had agreed that, if a multiplier/multiplicand basis of assessment was correct, the appropriate multiplier to apply to such loss as the claimant established would be one of 14.
21.	I turn now to consider the medical reports. There were three medical reports prepared by Mr D N W Lake, a consultant orthopaedic surgeon. Mr Lake did not give evidence and his reports were not agreed, but they were available to the judge for his consideration. The first report is dated 20th October 1994. At page 4 of that report Mr Lake said:
	"[The claimant] complains of episodic pain in the cervical region to the left of mid line over the paraspinal musculature, which is increased particularly when he looks to the left. Symptoms tend to be variable and are certainly worse when he tries to maintain his neck posture in one position for too long a time, e.g. driving a car or when fly fishing or sitting upright. ...    He had, virtually, a full range of movements but complained of pain on left rotation. There was an area of tenderness in the posterior triangle of the neck on deep pressure. ...    There was no other palpable abnormality."
22.	Mr Lake said at page 6:
	"It is now ten months since injury and, in my experience, symptoms of this sort are not unusual at this stage in a mild to moderate injury. He is still aware of residual symptoms when he attempts to maintain the neck in one position for too long a period."
23.	The second of Mr Lake's reports is dated 29th September 1995. He reported that:
	"[The claimant] remains symptomatic since I last reviewed him: he complains of intermittent aching, felt in the left paraspinal musculature at the angle of his neck and left shoulder. ...    ... he finds that, towards the end of a day's work, he gets a persistent nagging ache in his neck and shoulder ..."
24.	Mr Lake said that the claimant was sometimes awakened in the course of the night with aching in his neck. He said that the symptoms had persisted. He said:
	"He is a large man who makes significant demands of his neck and shoulders because of the nature of his work."
25.	Mr Lake's third report is dated 2nd February 1996. Again the symptoms and the pain were continuing. Mr Lake said at page 4:
	"[The claimant] continues to have symptoms despite the passage of some 25 months since the date of injury. His symptoms are consistent with a moderately severe musculo-ligamentous sprain of the neck which he sustained in a road accident of 16 December 1993.    The symptoms that he describes are those of stress aching, which is a constant feature of musculo-ligamentous sprains and the current medical literature is strongly supportive of the concept that a substantial proportion of patients, as high as 40%, will have persistent symptoms in the neck even 5 years after the event. This is in line with my experience and I am aware that patients who make significant demands of their neck, this is most certainly justified in [the claimant's] case, will induce these symptoms. As a consequence, it is probably unwise for [the claimant] to continue to make heavy use of his arm and it would be reasonable for him to contemplate employing someone to do the driving and delivery work that is a substantial aspect of his business; he will be able to concentrate on the less physically demanding aspect."
26.	At the conclusion of that report Mr Lake said:
	"I believe, therefore, he is justified in making a claim and should be compensated to employ a driver and delivery person in order to minimise the symptoms in his left shoulder."
27.	It is accordingly worthy of note that in February 1996, more than two years after the accident had occurred, the condition in the claimant's neck was such that the consultant orthopaedic surgeon was advising that for that reason it was unwise for the claimant to carry on with extensive driving and heavy delivery work.
28.	Mr Lake did not continue to advise the claimant and his place was taken by Mr Morrison, another consultant orthopaedic surgeon, who reported on 8th January 1997. On page 2 of his report Mr Morrison said:
	"[The claimant] says that he started getting lower lumbar back pain approximately 8 to 9 months ago. This came on gradually and it comes and goes. That, too, appears to be related to activity at work. When he gets it, it tends to last for a day or two. He rarely goes more than about a week without it. He says that 'it depends on how busy I am'. This back pain is restricted to the back only. He does not get any associated leg pain, pins and needles or numbness."
29.	Then on page 5 of his report Mr Morrison said:
	"This man sustained a jarring injury to his spine, usually referred to as a whiplash injury when applied to the neck but the same principles apply throughout the spine. His symptoms are entirely consistent with the physical signs and they have persisted, indeed they have got worse, in spite of attempts at treatment with physiotherapy and a visit to the chiropractor."
30.	There is then, in the context of the learned judge's judgment (although not in the context of the trial, so we were told by Mr Moody and, of course, accept), an important letter dated 11th September 1997 from Dr Evans, the claimant's general practitioner. Mr Moody has told us that the letter played a very small part at the hearing and Dr Evans did not give evidence. The letter reads as follows:
	"[The claimant] came to see me on 01.09.97 regarding the continual problem he has with his neck. He still gets considerable pain especially after driving for long periods. This pain is mainly on the left side and radiates to the left shoulder and arm. He also complains of low back pain and this also appears to be related to his driving.    On examination there was a 25% deficiency in all neck movements and tenderness from the 6th to the 8th cervical vertebrae. His symptoms are due to the original whiplash injury and despite all treatment and advice have not improved over 3 years. This means that it is highly unlikely that they will ever improve and I have therefore recommended that he avoids driving since this is the main aggravating factor. I have therefore advised him to cease work with his mobile van."
31.	It is perfectly true, as stressed by Mr Moody, that in that letter Dr Evans refers both to the pain in the neck and to low back pain. He goes on in the letter to say that he recommended that the claimant should avoid driving. We have no evidence from Dr Evans, any more than the judge had. The relevance of the letter will become more apparent when I come to consider the learned judge's judgment, but it seems to me to be clear on the face of that letter that the doctor was basing the advice that he gave to the claimant that he should avoid driving on the symptoms that the claimant was suffering in the neck and not those that he was suffering in the back. The whole tenor of the doctor's letter is that the major problem lay with the pain in the neck.
32.	Mr Alderman is the consultant orthopaedic surgeon who advised the defendant. His first report is dated 21st January 1997. He sets out the history in some detail and on page 2 he deals with the pain that the claimant had suffered in his neck and the consequences of it. He refers, on page 4 of the report, to tenderness in the neck. He sets out his opinion on page 6, saying:
	"[The claimant] appears to have suffered personal injuries as the result of a road traffic accident on 16 December 1993. The injuries described would be compatible with the mechanism described to me. He continues to complain of symptoms in the form of neck pain and intermittent left arm symptoms which he attributes directly to the accident in question.    On the basis of my examination today, I could find no objective evidence of any continuing physical disability. [The claimant] tells me that his lower backache only began in the last ten months and this, then, is entirely constitutional and not related to the accident in question.    His general practitioner records bear no reference to any neck or related symptoms prior to the accident in question and one must, therefore, accept that his current symptoms are entirely accident related.    However, I would expect no long term complication to ensue as a consequence of these injuries and, whilst his neck symptoms may prejudice his future working abilities, these are also likely to be further compromised by his lower backache which, as I have stated, is entirely constitutional. The accident in question is not likely to have accelerated the onset of these constitutional lower back symptoms."
33.	It is of relevance, in my view, that Mr Alderman in that report talks about the claimant's ability to carry on with his work as being, as he puts it, "compromised by his lower backache".
34.	Mr Alderman's next report is dated 3rd November 1998, just over a month before the trial. On the second page he reports:
	"[The claimant] continues to complain of symptoms in his neck, left shoulder and lower back. His neck, he says, is no better than it was when I originally saw him and his left shoulder is worse than when I last saw him. His neck pain, he says, is constant. The pain starts from the base of his neck radiating up the neck and across to the left shoulder. He says that he has 'not much problem' on the right. ...    He experiences back pain from the lower level of his shoulder blades down to the lumbar region. He says he has been told by his general practitioner and physiotherapist that this is 'probably muscular'....    With regard to driving, [the claimant] says that his driving capacity is limited to approximately twenty minutes maximum. He says that he is able to drive the short journey of some two to three miles from his home to his café. His neck aches if he sits in one position driving for too long. He says that, when driving, he finds that he cannot turn around to reverse looking over his left shoulder and he has 'problems changing gears'."
35.	At the conclusion of that report Mr Alderman said:
	"I remain of the opinion that I would not expect any long term complication to ensue as a consequence of this accident and my opinion regarding his future employment capacity remains unaltered."
36.	It is again perhaps of some relevance that in the passages of that report to which I have referred Mr Alderman does not make further reference to the claimant's back in relation to his inability to carry on with his work.
37.	Then finally there is a letter from Mr Alderman to the defendant's solicitors dated 4th December 1998, which was, I think, one day before the trial. In that letter he said:
	"As I stated in my original medical report, I would have to accept that his neck and related upper limb symptoms are accident related as there is nothing in his medical records to suggest otherwise. The degree to which that disables [the claimant] is largely determined by his psychological resilience. He demonstrated no inappropriate features when I examined him and I have no evidence, therefore, to suggest that he is malingering.    With regards to any period of recovery, I would remind you of the opinion that I expressed in my second medical report namely that patients involved in rear end shunt type accidents such as that sustained by [the claimant] can, in eighty five per cent of cases, be expected to be relieved of their symptoms within six months of the accident in question. The remaining fifteen per cent of patients who continue to have symptoms up to two years after such accidents normally have evidence of pre-existing degeneration within the cervical spine. Whilst his x-rays revealed no evidence of any degeneration in the spine, the fact that he subsequently developed low back pain suggests that he does have a constitutional pre-disposition to spinal pain at any level and it could be argued, therefore, that, at worst, his accident related symptoms would have continued for up to two years after the accident. The corollary of this, therefore, is that any continued neck pain is constitutional in nature raising a question of a period of acceleration of onset of his neck pain. This would be a matter of speculation which I would not wish to be drawn into further."
38.	It is again of some importance that neither Mr Alderman nor, indeed, any other doctor who examined the claimant took the view that he was malingering or was other than a perfectly honest historian and witness.
39.	Mr Alderman then turned to the question of the back pain and he said:
	"It appears that Mr Morrison's opinion regarding the nature of [the claimant's] lower back pain agrees with mine namely that his lower back pain is constitutional in nature and unrelated to the accident in question.    I certainly believe that his constitutional back problem would have prevented him from continuing in his occupation as a mobile café owner and proprietor in any event."
40.	That final statement by Mr Alderman is absolutely central to the issue that arises in this appeal. It is, in my judgment, particularly unfortunate that that expression of opinion should have arrived one day prior to the trial and in all probability would have reached the claimant's advisers on the day of the trial itself. Mr Alderman's expressed view that the back problem would have prevented the claimant from continuing his occupation with the mobile van is one which is stated in the letter in that form for the very first time and is not supported by any reasoning by Mr Alderman himself. That is not to say, of course, that the expression of view by the consultant orthopaedic surgeon is erroneous, but, as I say, it appears in that unargued form for the first time at that very late stage in this case.
41.	Mr Williams has subjected the judge's reasoning to a degree of criticism, as he is bound to do. He submits to us that, in order to reject the claimant's claim for loss of earnings, it was incumbent upon the judge to make coherent findings in relation to the extent of the claimant's injury and then to make coherent findings as to why he did or did not accept his claim for loss of earnings.
42.	Mr Williams invited our attention, as did Mr Moody, to certain passages in the evidence. I hope it will not be necessary for me to dwell on them at too great a length. The most important passage in the evidence of Mr Alderman is to be found at page 118 of the trial transcript, where Mr Moody was asking Mr Alderman about his medical reports and, in particular, the letter of 4th December. There was this exchange:
	Q.   Then you go on in the last paragraph to say, 'His back problem would have prevented him from working as a mobile café owner in any event.' A.   Yes. Q.   Q.Why is that? A.   A. In that his back pain is equally, if not more so, likely to prejudice his ability to lift heavy objects. I think [the claimant] said that in his mobile café he would have to be bent, stooping at the window, and that is the sort of position that would tend to bring on back pain. So again it is to some extent determined by [the claimant], and whether he is able to put up with the pain or not."
43.	Mr Williams placed some emphasis on the last part of that evidence: namely, in relation to the back pain alone, it was Mr Alderman's expressed opinion that, in relation to that part of his problem, whether he could carry on with his work would depend on his threshold of pain and his ability to put up with it. Mr Williams submits that Mr Alderman did not give any reasoning as to why he came to the view expressed in the letter and in that passage of the evidence. Most unfortunately, as rightly stressed by Mr Moody on behalf of the defendant, counsel then instructed on behalf of the claimant did not cross-examine Mr Alderman in relation to that important part of his evidence.
44.	Mr Williams contrasts that part of the medical evidence with the evidence that was given by the claimant himself. It is not necessary, in my view, that I should read the evidence. It is abundantly clear that the claimant (who, as I have already said, was found to be a truthful witness) attributed his inability to carry on with the mobile van business entirely to the pain that he was suffering in his neck, which was, of course, attributable to this accident.
45.	Mr Moody naturally submitted that Mr Alderman's evidence, which was uncontradicted, was central to his case. He submitted with force that, on that uncontradicted evidence, the only proper and possible conclusion that was open to the judge was that the claimant would have had to give up his work on the mobile van on account of his back pain. He submitted that he would, on that evidence, quite regardless of the problems in the neck, have had to discontinue with that business.
46.	Both counsel invited our attention to the case of Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377. Mr Moody rightly submitted that the facts of that case were very different to the facts of the present case. However, in my judgment it does have some relevance. The headnote reads:
47.	"... a judge was under a duty to explain why he had reached his decision; that the scope of what was required to fulfil that duty depended on the subject matter of the case; that where reasons and analysis were advanced on either side a judge had to enter into issues canvassed and explain why he preferred one case over the other; that failure to supply reasons in those circumstances offended against requirements inherent in the duty of showing fairness to both parties and of producing a decision soundly based on the evidence and constituted a good free-standing ground of appeal; that, accordingly, since the judge heard reasoned analysis and accepted the defendants' expert evidence, he was under a duty to supply reasons in the form of a coherent rebuttal of the plaintiffs' expert evidence; and that his failure to do so justified setting aside his judgment and remitting the case for retrial."
48.	Mr Moody distinguished that case from the present case, in part at any rate, on the basis that the judge in this case was not in any way departing from the expert evidence that he had heard.
49.	In the context of what I have said, I turn to the judgment given by the learned judge. As I have indicated, it runs to about three and a half pages. The judge started by giving a brief chronology. He then said that, on the evidence which was not disputed, he had reached the conclusion that the back pain suffered by the claimant was not related to the accident. He continued as follows:
	"The consultants do however differ significantly on the consequences. Mr Morrison says that the advice given by the claimant's GP regarding ceasing work with his mobile van was entirely reasonable. The claim for loss of profit is based on this in that the claimant says that up to October 1997 he was obliged to employ assistance and that from that time his condition forced the closure of his businesses. On the other hand Mr Alderman considered him capable of working albeit not in heavy manual occupation. I have reviewed all the evidence presented to me and I have reached the conclusion that on a balance of probabilities the claimant has not satisfied me that the loss of profit claim has been proved so far as the giving up the 'van' aspect of the business is concerned. For almost four years after the accident the business continued although I accept that it was with assistance. The normal course of a whiplash injury is a gradual improvement although it is accepted that in a minority of cases symptoms will persist over a lengthy period of time and both consultants accept that the claimant still suffers neck pain from the accident. However this does not mean that the claimant is incapable of work and I prefer Mr Alderman's evidence on this point.    A further consideration in this case is the claimant's problem with back pain. This seems to have developed between February 1996 and January 1997 and is mentioned in the GP's letter of September 1997 as being 'related to his driving' and seems to me to be an element in reaching the advice to cease work on the van. On that basis I am of the opinion that the back condition would have in any event caused the claimant to give up the van when he did."
50.	Those two paragraphs comprise the totality of the learned judge's judgment and his factual findings in relation to the claimant's claim for loss of earnings. I regret to have to say that in my judgement they are very inadequate. It is important, in the context of the course that this court proposes to take, that we should say as little as possible as to our overall views about the case and I propose to do exactly that. I will, however, have to return very briefly in a moment to consider one or two of the passages in that part of the judgment which I have read.
51.	Before doing so, I should turn to a further passage on page 4 of the judgment which was relied upon to an extent by Mr Williams. The judge was dealing with the issue of general damages. He said:
	"Turning to General Damages there is evidence that this is one of those whiplash cases where the symptoms have continued beyond what is the normal recovery period. Indeed it is accepted that over 5 years after the injury the claimant is still experiencing difficulty. His evidence is that he has been unable to follow former hobbies and that his life has been seriously affected."
52.	He then awarded the sum of £15,000 for general damages. Mr Williams submits that an award of £15,000 is at the top of the scale for an injury of this nature and it is inconsistent with the judge's rejection of the claim for loss of earnings occasioned by the whiplash injury to the neck.
53.	For my part, I would not accept Mr Williams' submission that the sum awarded in itself is necessarily inconsistent with a finding, properly founded, rejecting the claim for loss of earnings. However, I do think that the phraseology used by the learned judge is of some relevance in the context of his earlier findings. The judge said that the claimant, five years following this accident, was still experiencing difficulty. He clearly accepted the claimant's evidence that he had been unable to follow hobbies and that his life had been seriously affected. In the context of those findings, it does seem to me that, if the learned judge was going to reject his claim for loss of earnings based on his evidence that he was unable to continue with the mobile van business on account of his neck injury, it was incumbent upon him to deal with his reasons for rejecting that aspect of the claim with a degree of detail supported by proper reasoning.
54.	Returning to the vital passage in the judgment, the judge said:
	"I have reviewed all the evidence presented to me and I have reached the conclusion that on a balance of probabilities the claimant has not satisfied me that the loss of profit claim has been proved so far as the giving up the 'van' aspect of the business is concerned."
55.	In just citing that conclusion, the judge did not in any way analyse the evidence that he had heard or give his reasons why he rejected the claim and rejected the claimant's evidence in relation to it.
56.	He then said that the consultants accepted that the claimant had suffered from neck pain for five years following the accident, and continued:
	"However this does not mean that the claimant is incapable of work and I prefer Mr Alderman's evidence on this point."
57.	With great respect to the judge, it was not submitted by either side that the claimant was incapable of work and that passage, in my view, just does not come to grips with the case which was being put forward.
58.	The learned judge finally said on this aspect:
	"A further consideration in this case is the claimant's problem with back pain."
59.	He then referred to Dr Evans' letter in which the doctor refers to it being related to driving and the advice given to cease working on the van. The judge said:
	"On that basis I am of the opinion that the back condition would have in any event caused the claimant to give up the van when he did."
60.	As I have already said, Dr Evans' letter would not, in my judgment, begin to support that conclusion. It is perfectly true, as Mr Moody stressed, that the evidence given by Mr Alderman was capable of supporting that conclusion. Mr Moody may be right when he submits that it is likely that the learned judge had Mr Alderman's evidence in mind when he arrived at the conclusion that he did. If that is correct, then the judge, unfortunately, failed to say so.
61.	Of course, I would not base the decision to which I have come solely on the basis of what is perhaps an oversight in failing to refer to the evidence given by Mr Alderman. I base the conclusion which I have reached on the concept that in this case a duty did lie firmly upon the learned judge to analyse the evidence that he had heard and to give reasoned conclusions as to why it was that he rejected the claimant's claim for loss of earnings despite the evidence that he had heard which was, albeit not expert evidence, capable of countering the evidence on this aspect of the case given by Mr Alderman.
62.	For all those reasons, and with very considerable regret, I have come to the conclusion that this appeal must be allowed and the case on the issue as to loss of earnings only must be remitted for a retrial. Subject to anything said by Lord Justice Brooke and Lady Justice Hale and any submissions made by counsel, I would be minded to direct that the rehearing should take place before a circuit judge who is experienced in trying personal injury actions.
63.	LORD JUSTICE BROOKE: This was a High Court action commenced by a writ issued out of the Bridgend District Registry on 28th November 1996. A statement of claim was served on 3rd March 1997 accompanied by a schedule of special damages which totalled £127,245. There was also a claim for general damages and interest. Just before the hearing of the assessment the claim for loss of income alone was increased to a sum only just short of £200,000. A very short defence was served on 13th May 1997 putting everything in issue apart from the fact that a road traffic accident had occurred on 16th December 1993 as alleged.
64.	The claimant appears to have applied to the court for interlocutory judgment for damages to be assessed. On 24th August 1997 an order to that effect was made by consent, accompanied by directions leading up to the assessment of damages to be heard by a district judge on the filing of certificates of readiness with time estimates. We were told by counsel who have appeared before us today that they believe that this direction as to the mode of trial was made by consent.
65.	Because this was an action in the High Court, the district judge had jurisdiction to assess damages following a judgment for damages to be assessed unless provision was made by the judgment that damages should be assessed by somebody else (RSC Ord.37, r.1(1), r.4(1)(b) and Ord.32, r.23). In my judgment it would have been much more appropriate for this assessment to have been conducted by a High Court judge or, more probably, a deputy High Court judge appointed pursuant to section 9 of the Supreme Court Act 1981Acts. If, on the first hearing for directions, the district judge wished to have a clearer idea of the scale and complexity of the disputed issues to be determined on the assessment of damages, he should have deferred directions as to the mode of trial of the assessment of damages until the exchange of evidence on this issue was complete.
66.	This, however, is past history. We are now in the era of the Civil Procedure Rules and I wish to take this opportunity of agreeing expressly with what Lord Justice Swinton Thomas has said by way of guidance as to the appropriate level of the judiciary at which assessments of this complexity should be conducted, barring special circumstances. The matter is now governed by paragraph 12.10 of the practice directionpdp-26supplementing CPR Part 26 in that part of the practice direction which is concerned with the allocation and case management of assessment of damages and allied proceedings. Paragraph 12.10 reads:
	"Jurisdiction of Masters and district judges.    Unless the court otherwise directs, a Master or a district judge may decide the amount payable under a relevant order irrespective of the financial value of the claim and of the track to which the claim may have been allocated."
67.	A procedural judge determining whether or not to direct otherwise pursuant to that practice direction should in future follow the guidance given by Lord Justice Swinton Thomas.
68.	On the substantive issues on this appeal, I entirely agree with what my Lord has said about the inadequacy of the judgment given by the district judge on this occasion and, subject to the precise form of order we should make on the remission, I agree with everything in his judgment.
69.	LADY JUSTICE HALE: I agree with both judgments.
	Order: appeal allowed and case on the issue as to loss of earnings only remitted for retrial before a High Court judge or a deputy High Court Judge; claimant to have the costs of the appeal; costs below and costs of the retrial reserved to the judge in the second trial.
	[DOES NOT FORM PART OF APPROVED JUDGMENT]