By Jonathan Holsgrove
The Court of Appeal has handed down judgment following the Defendant’s appeal of the first instance judgment of the High Court (article by Gordon Exall here).
In 2009, the Claimant had been in the army and his role was as a HGV driver. He had been taking part in a field exercise in freezing weather and snow for six days having been provided with unsatisfactory footwear. The Claimant suffered a non-freezing cold injury to his feet. Despite treatment he still suffered symptoms in cold weather but was assessed as fit for service. The Claimant obtained an early termination of military service in 2011 because of family commitments. Due to the ongoing symptoms in his feet he issued a claim for damages against the MOD. Liability was agreed at 75% but the parties could not agree quantum.
The Claimant’s injury had only a minor impact on his life and did not prevent him from working in his chosen career as a HGV driver. His earnings were the same as what they would have been if he had remained in service. It was agreed between the parties that if the Claimant were to lose his job then he would be at a disadvantage on the labour market. The main area for contention between the parties was how to assess the Claimant’s loss of future earning capacity.
The Claimant submitted that the assessment of loss of future earning capacity should be by Ogden Tables A to D whilst the Defendant submitted that the assessment should be based on Smith v Manchester. The judge at first instance calculated damages with reference to the Ogden Tables. Awards of £12,500 for generals and £99,062 for loss of future earnings were made. The Defendant appealed on the basis that the Claimant was not ‘disabled’ for the purposes of the Ogden Tables and the wrong assessment had been made.
The appeal would be allowed. Jackson LJ giving the leading judgment held that:
- An inquiry as to the disability of the Claimant should focus on what the Claimant cannot do as a result of an injury and not on what they can do. This was a factual issue and the judge at first evidence had heard and accepted the Claimant’s evidence of the substantial adverse effect on normal activities. The judge was entitled to reach the conclusion that the Claimant was disabled even if he was only just disabled. The case of Aderemi v London and South Eastern Railway Ltd approved.
- Tables A to D were a valuable aid to the valuation of a Claimant’s loss of earning capacity. However, in this case the Claimant was working in his chosen career with virtually no hindrance having secured this employment one week after leaving the army. The concept of disability in Ogden covers a wide range of disabilities and this Claimant was on the outer fringe of that range. There was no rational basis for determining how the reduction factor should be applied.
The best the Court could do in cases of this type is to take a broad approach to the assessment of the present value of the Claimant’s likely future loss as a result of handicap on the labour market. The Smith v Manchester approach remained appropriate for cases of this type were there is a minor disability.
- Following the guidance in Smith v Manchester an award of £45,000 was appropriate.