The burden of proof is on the claimant in proving loss of earnings. This applies as much to proving causation as to the duration and amount of the loss. Here we look at two recent cases which are very different but highlight the problems there can be with causation.
DUDNEY -v- GUARANTEED ASPHALT LTD  EWHC 2515 (QB)
(Available on Lawtel).
The claimant was a skilled lead roofer, was injured in an accident at work. He was unable to return to work as a roofer but the Defendant found him an office position. He was made redundant in 2011 and started his own roofing business.
The Defendant alleged that the claimant had unreasonably failed to mitigate his loss by taking a roof supervisor role.
Following his redundancy, the claimant had a choice to take a role as a roof supervisor or to start his own business. He chose to start his own business. Consequently he earned less than he would of as a supervisor.
He was qualified and able to act as a roof supervisor and these roles paid more than he had been earning prior to his injury. He had lost income through his own personal choice or by his redundancy, not because of his injury. The only award for loss of earnings was for the period between the accident and his return to work.
H.H. Judge Gore Q.C. stated:
“34. More relevantly, in my judgment, the claimant accepted that he is able to do general roofing work and to do work as a qualified roofing supervisor, but that is not what he wanted to do in life”
“He admitted, and that was certainly confirmed by others who gave evidence, that he would be paid more in the office as a supervisor, as he put it, than he would on the tools as a lead worker.”
“he acknowledged that upon redundancy he had a choice: be a roofing supervisor or be his own boss, and as was put to him by Mr Mendoza and agreed by the claimant in the evidence, he chose the latter and that was entirely his personal choice.”
“To the extent that he has lost income, he has lost it by his choice to be, as was put to him, his own boss, or, alternatively, was caused not by the injury but by redundancy, which is conceded not to have been caused by the injury. Therefore, in my judgment, either the loss is not demonstrated to have been caused by injury or there has been an unreasonable failure to mitigate loss. I decline therefore to make any further award for loss of earnings.”
The claimant, who had been sexually abused at school more than 30 years earlier would not receive damages for loss of earnings for what he argued had been career failures in subsequent years as a result of an enduring personality change and alcohol problems caused by the abuse.
The claimant , who was now 54 years old, had been regularly abused between the ages of 11 and 15. Thereafter he went to university and law college, before becoming a solicitor for 13 years. He brought a claim for the immediate and long-term psychiatric damage he had suffered as a result. He claimed that the immediate effects included intense feelings of violation, dread, isolation, shame, humiliation and a conduct disorder manifested by a marked deterioration in his behaviour and academic performance. The long-term effects included an enduring personality change and a mental and behavioural disorder due to harmful use of alcohol resulting from the abuse. He contended that the personality change caused by the abuse had a seriously detrimental effect on his ability to work as a solicitor. In particular, it adversely affected his ability to relate to people in positions of authority and to exercise appropriate judgment and self-control in his dealings with them. It was claimed that the personality change resulted in the loss of his employment and his inability to obtain alternative employment as a lawyer.
His past and future claim for loss of earnings was based on the contention that, if it had not been for the abuse, he would have been an equity partner for the remainder of his working life, with a commensurate pension thereafter. The court had already found in favour of R on liability and it was now necessary to determine causation and quantum.
- Although the abuse had had an effect on R’s attitude to his school work and, therefore, on his examination results, it made no quantifiable difference to his subsequent career.
- The evidence of his suffering a conduct disorder, albeit of a mild form, was not convincing. R displayed many of the traits identified in the diagnostic criteria for narcissistic personality disorder, but the traits would have been a feature of his personality even had the abuse not occurred.
- The psychological effects of the sexual abuse were confined to a period of eight years from the start of the abuse and would have been most acute during the four years when the abuse was continuing.
- Thereafter, R’s problems were caused mainly by his harmful use of alcohol, coupled with his abnormal personality traits. The abuse had not played any significant role in his performance at work, the loss of his legal career, his excessive drinking, his drug-taking or his difficulties with relationships.
- Given the finding of lack of causation, there would be no award for past or future loss of earnings, for handicap on the open labour market or for pension loss.
REMEMBER THE IMPORTANCE OF PROVING CAUSATION
Both of these cases highlight the need for a claimant to prove causation. The claimant must establish that the loss of a job/change of career/ failure to earn derives from the injuries.