Future loss of earnings (Ogden vs Smith v Manchester approach), loss of congenial employment, material contribution test: A review of the decision in Kennedy v London Ambulance Service NHS Trust [2016] EWHC 3145 (QB)

profile_PI_Vilma_Vodanovic1

By Vilma Vodanovic

(Decision of HHJ Peter Cotter QC sitting as a deputy High Court Judge)

This was a case of carbon monoxide poisoning. Liability was admitted; the matter was listed for an assessment of damages hearing. The interesting part of the decision is yet another example of the need not to focus too rigidly on the Ogden tables (multiplier/multiplicand) approach. It also provides a useful review of the case law concerning the material contribution test.

Facts:

C was 38 years old, married with three children. She worked as an ambulance driver for D. The carbon monoxide poisoning came from a faulty ambulance vehicle she drove on a shift for nine hours in April 2011.

She felt very unwell after this shift, was hospitalised and later signed off as being unfit for work. She eventually went back on a phased return to work, some five months after the incident (September 2011). She left D’s employment in April 2015 but before that she had not in fact worked since June 2014. The OHD had made recommendations for her return to work but these were impossible to implement. She has not worked since and now suffers from a chronic psychiatric condition.

Issues:

The main issue was that of causation, namely to what extent were C’s psychiatric conditions caused or materially contributed to by the carbon monoxide poisoning. C was arguing that she was already stressed prior to this incident and as a result suffered PTSD. D argued that it was all down to her vulnerability to stresses. The other issue also was whether she was likely to return to some form of work or not.

The Judge came to the conclusion that:

(i) C developed PTSD as a result of the incident;

 (ii) she continued to suffer from that condition;

 (iii) her present condition is the result of that incident; and

 (iv) with appropriate treatment she should be able to return to employment in less stressful environments in two years’ time.

The relevant facts that the Judge focussed on were that C had had various stresses in her life prior to the accident including miscarriages, being falsely accused of theft by a patient which resulted in time off work for her, her young child was having difficulties talking, etc. Days prior to the incident she had been referred to OHD for an assessment of what support and assistance was required for her to continue in her job.

After the incident she stayed off work for a period of six months almost. She then returned to an administrative role.

On material contribution vs but for test:

D sought to argue, on the basis of the decision in KR v Bryn Alyn (Holdings) Ltd [2003] EWCA Civ 84 that it was appropriate to make an apportionment between the psychiatric harm that the Claimant would have suffered in any event and the harm that she has suffered in consequence of the CO poisoning incident. The Bryn Alyn case, though, concerned someone who was already psychiatrically damaged and then suffered further psychological harm in consequence of his abusive treatment in a residential home. There the psychological injury was divisible and apportionment of the damages was possible. The Judge was of the view that this was a wholly different case on its facts.

In Bailey v Ministry of Defence [2008] EWCA Civ 883 and Dickens v O2 PLC [2008 EWCA Civ 1144 the Court of Appeal said that where the causative event made a material contribution and where the injury to which it leads is indivisible, apportionment “across the board” is inappropriate (see in particular the judgment of Smith L.J. in Dickens).

This principle has recently been endorsed by the Privy Council in the case of Williams v The Bermuda Hospitals Board [2016] UKPC 4. Lord Toulson quoted, with approval a passage from Professor Sarah Green’s book, Causation in Negligence [2]–

“It is trite negligence law that, where possible, defendants should only be held liable for that part of the claimant’s ultimate damage to which they can be causally linked…It is equally trite that, where a defendant has been found to have caused or contributed to an indivisible injury, she will be held fully liable for it, even though there may well have been other contributing causes….”

The Judge was of the opinion that the present case, though, is not so much a material contribution case as a simple “but for” case; but for the event on the 12th April 2011, it is unlikely that the Claimant would have suffered a major psychological disorder in the foreseeable future.

On assessment of loss of earnings and the approach to Ogden Tables:

The Judge quoted WH Auden who said “thou shall not sit with statisticians” and said as follows:

As the Ogden tables become more sophisticated and seek to provide an answer for every scenario, there is a danger that in the drive for mathematical precision we lose sight of the fact that the object of the exercise is to provide fair compensation for an uncertain future. Mathematical precision is an unattainable goal.

Jackson LJ considered in detail Tables A – D and the application of the “disability” criterion last year in the case of Billett v Ministry of Defence [2015] EWCA Civ 773. At paragraph 94 of the judgment, he observed

“Some of the bands used in Tables A-D are, of necessity, extremely wide. Disability, as defined in paragraph 35 of the Explanatory Notes, covers a very broad spectrum.”

He referred to the Health and Disability Survey 1996 -7. This measures severity of disability on a scale from 1 to 10, where 10 denotes the greatest severity. He noted that 42.9% of those classified as disabled fell within categories 1 to 3, and only 13.2% into the most disabled categories 8 to 10.

In Billett, the judge at first instance (Mr Andrew Edis QC, as he then was) described the claimant’s condition as qualifying as a disability “but only just”. He awarded damages for future loss of earnings of £99,062.04 using a multiplier/multiplicand approach. The Court of Appeal reduced his award to £45,000. Jackson L.J. arrived at this figure by the Smith v Manchester route, but cross-checked the figure by reference to Ogden but adjusting the RF from that adopted by the trial judge.

At paragraph 94 of his judgment, Jackson L.J. said

“In order to bring a sense of reality to the present exercise, it is necessary to make a swingeing increase to the RF shown in Table B (.54). But what should that increase be? Determining an appropriate adjustment to the RF is a matter of broad judgment. In the present case that exercise is no more scientific than the broad brush judgment which the court makes when carrying out a Smith v Manchester assessment.

The Judge then went on to say that every case must turn on its own facts. The situation in Billett was very different to this case. Mr Billett was in work, pursuing his chosen alternative career as a lorry driver with virtually no hindrance from his physical disability. C, in contrast, was unfit for work, and the prognosis for a psychological disability was less easy to predict than most physical disabilities.

The Judge was ultimately of the view that the Court should not depart from the multiplier/multiplicand approach unless, as in Billett, it throws up an obviously unreal result.

Loss of congenial employment

In addition, the Judge made a small allowance sought by C for loss of congenial employment. This seemed appropriate in this case because C worked for the ambulance service for roughly thirteen years, and, plainly, found her work fulfilling.

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