The previous post looked at the difficulties that can arise when attempting to use the “Actuarial” calculation for loss of earnings. It is interesting to look at an example of an award for disability in the labour market being used in practice. In the Northern Irish case of Hazlett -v- Robinson [2014] NIQB 17 Gillen J contains a succinct review of the relevant case law.
THE FACTS
The claimant was in born in 1979 and suffered an injury in 1999. His case was that as a result he could not return to working with cars. The judge held that the claimant was exaggerating his symptoms (but there were still some residual problems). The claimant’s average income was around £13,043.00
THE JUDGMENT ON THE AWARD FOR FUTURE LOSSES
[29] No claim has been made for loss of earnings to date. His claim for future loss was based not upon the conventional multiplier and multiplicand approach but, firstly, was to be assessed upon the broad brush principles established in Blamire v South Cumbria Health Authority [1993] PIQR Q1. Secondly there was a claim for an award for handicap on the labour market universally known as a Smith v Manchester award, after the decision of that name reported at (1974) 17 KIR 1, 118 Sol Jo 597. In short a combination of both (see Ronan v Sainsbury’s Supermarket Limited [2006] EWCA Civ 1074, [2006] All ER (D) 80 (Jul)) was the basis of the future loss claimed.
[30] A Blamire award and a Smith v Manchester award may be combined but they are quite distinct. As Ronan’s case made clear, a trial judge should be careful not to fall into error by eliding a Blamire award for a future loss of earnings with an award for handicap on the open market as set out in Smith v Manchester approach. The former is appropriate where the evidence shows that there is continuing loss of earnings, but there are too many uncertainties to adopt the conventional multiplier and multiplicand approach to its quantification. A Blamire award is not a substitute for showing that there is continuing loss of earnings attributable to the accident. The latter is nothing to do with a continuing loss. It is an award for a contingent future loss, in the event of the Plaintiff losing his current job, where, as a result of the accident, he would then be at a handicap on the labour market at which he would have been but for the accident (see Ronan’s case).
[31] In evidence the Plaintiff accepted that he could buy and sell cars now but he could not fix them up because of the difficulties lifting. He had not tried to perform any other job because he did not know any other trade. He was bad at reading and writing and had no qualifications.
[32] In cross-examination on this aspect of his case, the Plaintiff indicated that due to the recession his business had dropped off but things were not going well for him. He claimed he was not working for 13 months prior to the accident. The £5,500 to his creditors had been paid off by £3,000 from the bank and “£2,000 in a cupboard” which he kept at home. Although he had not been in receipt of benefits between May 2009 and May 2011, he had been living off his family according to him and some other money which he had paid to him by his brother.
[33] He conceded that on 25 August 2011 he had pleaded guilty to charges brought by the Trading Standards investigators. He also acknowledged that he may have showed three cars for his brother for the purposes of sale.
[34] I pause at this stage to deal with the evidence on this aspect of the case given by Richard Lambe, private investigator on behalf of the Defendant. Suffice to say that I found his evidence so thoroughly unsatisfactory that I have paid no attention whatsoever to it. Not only had he patently misunderstood the address of the Plaintiff and carried out investigations at the wrong address but the account put to the Plaintiff by Mr Ringland acting on his instructions about where certain vehicles were parked was in complete contrast to the evidence he gave before me. I had no doubt that he was thoroughly confused and had given contradictory instructions to counsel. Moreover it also emerged that he had taken photographs and a video which he had not produced to his instructing solicitor in circumstances which I found incomprehensible. I therefore found his evidence of no value whatsoever.
Conclusions on future loss
[35] As with a considerable part of his evidence I considered the Plaintiff’s evidence on this matter evasive and unconvincing. I was unable to discern any likely pattern of future employment given that the business he had been in had become bankrupt and had ceased for some time prior to the injury in the instant case. His earnings had dropped appreciably during 2007 and 2008 before he completely ceased trading.
[36] I see no reason whatsoever why he should not be buying and selling cars particularly since even on his own admission, he has “shown” three cars on behalf of his brother. Watching him carefully when he gave this evidence, I consider that he was being less than candid with me about the degree of cars sales that he has been involved in since the accident.
[37] Equally however, I recognise that whatever the uncertainty that exists about his employment prospects even without the injury, the fact of the matter is that he will not be able to do heavy lifting and this must have some modest influence on his future employment. The problem is that at the time of the accident he was not in an established field of work in which he is likely to have remained but for the accident and I cannot make a working assumption that he would have continued to do the work that he had ceased to do some time prior to the accident. Accordingly the conventional multiplier/multiplicand method of calculation cannot be adopted here. In short, the invocation of the OGDEN tables which would be the conventional approach to future loss must be ruled out in this case because the future is simply too uncertain. In respect of both the established and the likely pattern of future earnings given the fact that he has been injured, the burden is on the Plaintiff (see Ward v Allies and Morrison Architects [2013] PIQR Q1 at 20).
[38] I consider that in light of the fact that he was not working at the time of the accident his future employment would have been very uncertain and therefore the appropriate manner in which to assess any future loss in this case will be to consider it on the basis of a handicap on the labour market. This involves assessing two risks. The first is that he will be out of work in the future (notwithstanding that I consider it is likely he is selling some cars even now) and the second is, if he should be out of work, that because of the accident he will be less able to obtain fresh employment or employment at equivalent pay. I consider that if he were to obtain work in the future, it will probably be in the realm of selling cars (which I think he is probably doing in any event) but his injury will make him less able to fully engage in this occupation because of his inability to carry out heavy repairs from time to time in order to make the cars ready for sale. This may impede his ability to increase the profit margins on his sales. It also may impede to some extent his ability to return to labouring if he found the car sales business unprofitable. Recognising that he is only 35 years old, I assess the proper award on a Smith v Manchester basis at £17,500.”
SEEING THE APPROACH IN PRACTICE
This case contains a classic example of how a trial judge is likely to treat a difficult issue of future loss without being able to use the Ogden tables.
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