LOSS OF EARNINGS IN A CASE WHERE THE CLAIMANT WAS A CHILD WHEN INJURED

A claim made for loss of earnings when the claimant is a child is always problematic.  There were several issues considered by Mr Justice Kenneth Parker  in Tate -v- Ryder Holdings [2014] EWHC 4256(QB). Here we look at how the court approached the claim for loss of earnings.

THE CASE

The claimant was seriously injured when aged 11. He suffered brain injury.  The defendant argued that his home background meant that he was never likely to be in paid employment. The judge summarised the position:-

  1. . Little was known about the Claimant’s grandparents and aunts. The family was a relatively tight, cross-involved network. None of the family group was called to give evidence, and I accept Mr Featherby’s point that, if any of them had appeared, it is very unlikely, given what was known about them, that the family picture that would have emerged would have had any attractive features.
  2. As to material circumstances, there was no evidence that any living, adult relative of the Claimant had been in paid employment, and his childhood was impoverished and benefits-dependent. As to intelligence and personality, the assessments in respect of special educational needs, even taking account of their role in securing funding, revealed a boy who had significant learning difficulties, delayed language skills, poor concentration, weak memory and who was easily led. His attendance record at school until the year before the accident had been very unsatisfactory. In the light of this evidence it was submitted that the Claimant as an adult in any event would have had no qualifications, would have had great difficulty in obtaining and retaining employment (and then only at a minimum-wage), and would have been vulnerable, especially to alcohol and drugs.

THE JUDGE’S VIEW

  1. Although I see considerable force in the above points, I cannot in the final analysis accept Mr Featherby’s basic submission, for the following reasons.
  2. First, it is clear from the expert evidence in this case that, by reason of the organic brain injury the Claimant lacks capacity, within the meaning of the Mental Capacity Act 2005, in important respects. He lacks capacity to decide for himself where to live, how to choose what care, support and rehabilitation he appropriately needs, and whether to take alcohol or drugs. The Claimant’s condition, resulting from the organic brain injury, can only reasonably be treated by a regime of 24-hour personalised care. The experts agree on that issue. It will be necessary to reinforce consistently and constantly appropriate responses, boundaries and behaviour in the hope that he might eventually internalise some of the controls on his behaviour. Furthermore, there is no dispute that such a regime will need to be continued indefinitely, even if there might be some attenuation of his personality disorder in middle age. In my judgment, the need for such 24-hour personalised care arises directly only by reason of the organic brain injury. It would, therefore, be wrong in principle to discount the amount of damages required to provide such care in the light of an alleged risk as to how his life might have turned out if he had not suffered the organic brain injury.
  3. Secondly, it seems to me extraordinarily difficult in any event to evaluate in any acceptable or convincing way how this particular Claimant, aged only 11 at the time that he sustained this devastating organic brain injury, would have developed, and what the nature and quality of his life might have been. I accept that he faced formidable difficulties, but Mr Featherby’s scenario is exceptionally bleak and pessimistic, and his submission invites me to speculate on a highly sensitive issue, where my speculation could be quite wrong and seriously unfair to his Claimant. This problem is not unique to me, for the experts also struggled to come to any reasonably firm conclusions. For example, Professor Maden considered that the Claimant’s problems would have required assistance in the areas of literacy and dealing with bureaucracy, and he was unwilling to speculate further. Dr Schady considered that if the injury had not occurred, his behaviour might have led to “altercations and problems with the law”. If he had misused alcohol and drugs, as was likely, the substance misuse services might have become involved. He might have seen a psychologist or psychiatrist with a view to assessing and correcting the sources of his offending conduct. However, all this seems to me highly speculative and, as I have already noted, is very far from the 24-hour support and care that the Claimant now requires by reason of the organic brain injury.

THE APPROACH TO LOSS OF EARNINGS

The judge’s approach was, necessarily, quite broad brush.  He took the figure for average earnings and, because of possible pre-existing difficulties, discounted that figure by 33%. He then made a minor reduction for potential residual earning capacity.

Loss of Earnings

  1. The Claimant accepts that his likely career path and earnings but for the accident involves consideration of the choices of others and needs to be addressed on a “loss of chance basis” (Doyle v Wallace). Both parties are content that a multiplier/multiplicand approach is applied.
  2. The Claimant proposes that it would be appropriate to take an average of the Annual Survey of Hours and Earnings median earnings in the Yorkshire and the Humber region (male full time workers) for the following occupational classifications: refuse & salvage occupations £18,866; shelf filler £16,071; hospital porter £14,903; average for elementary occupations £18,504. The average of the above classifications is £17,086 gross or £14,437 net per annum. That average is only about £2,500 per annum greater than the current minimum wage. The Defendant, consistent with its position already adumbrated but rejected, submitted that the Claimant would never have earned more than he in fact (after the injuries) earned at Tesco (that is, £8,190 per annum). I accept that the figure of £14,437 is appropriate and, given the Claimant’s disabilities and vulnerability, I discount that figure by 33 per cent. This falls to be allowed from January 2010. I am unwilling to speculate as to possible future retirement ages, and I take a multiplier of 26.49 to reflect retirement at 68. Credit for residual earnings is most uncertain in this case, because it is unclear whether the Claimant will ever succeed in obtaining steady remunerative employment in the open labour market. I believe that it is unrealistic to assume lifetime net earnings greater than £35,000, to which £2000 for occasional work after January 2010 should be added.
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