AGE IS NO BAR TO A CLAIM FOR FUTURE LOSS OF EARNINGS: MILLER -v- IMPERIAL CONSIDERED

In Miller -v- Imperial College Healthcare NHS Trust [2014] EWHC 3772 (QB) an award for future loss of earnings was made to a 70 year old women. Despite the loss of a leg the claimant was continuing to work.

KEY POINTS OF JUDGMENT ON LOSS OF EARNINGS

• The judge accepted that the claimant would have continued working to age 75.
• At some stage she would have reduced her hours to four days a week.
• The claimant continued to work, however she was now likely to retire within a year or so of the trial.

THE JUDGMENT ON THE QUESTION OF LOSS OF EARNINGS

Past loss of earnings

1. Mrs Miller’s evidence in her witness statement was that when she first moved to London she worked as a home help for her local authority. In 1982, she started to do agency work as a cosmetics consultant in the West End and was then offered a full-time position as a cosmetics consultant with Yves Saint Laurent in John Lewis in the mid 1980s. In around 1990, she moved to Selfridges. She was an Account Manager for Kenneth Green in Dickens & Jones, and was then offered a job by Givenchy as Account Manager in John Lewis, Oxford Street, in 1995, where she has worked ever since.
2. Before the amputation, the Claimant was working full-time and had no immediate plans to retire. She loved her work, she said, and she could see herself working for as long as she was able. She did not see it coming to an end at all. She thinks she would not have sought promotion as she liked being on the shop floor. She was earning around £21,000 a year before tax, including commissions and a basic salary. There was no company pension scheme so, she said,

“I was only ever going to get a state pension and it would have made financial sense for me to carry on working.”

1. When she had the amputation, it became clear that she was not going to be able to work for a while. Givenchy paid her full pay for three months, then half pay for three months. She was then on Statutory Sick Pay until October 2008 when she was able to return to work on a part-time basis. She now works two days a week, for a total of 16 hours. She works on Thursdays and Sunday but this can occasionally change. She now earns a basic salary of £706.39 per month before tax, plus commission of on average £10 to £15 per month.
2. Givenchy and John Lewis have both taken a sympathetic view of her circumstances, although the Claimant says that it has been difficult because her role on the shop floor involves standing up for most of the day. She is able to stand up most of the time, but she is confident that if she needed to sit down more, she would be able to go to the medical team and her employers would accommodate her needs and make reasonable adjustments, as indeed they are required to do by statute.
3. In her witness statement made as recently as last month, the Claimant said

“I am still working two days a week at John Lewis in Oxford Circus. Usually I work Tuesdays and Sundays, but every six weeks or so I work a Saturday and a Sunday in a row. I still very much enjoy my job and I would like to work as long as I can still cope with it.”

1. In cross-examination she said:

“I had no plans to retire. I have no plans to retire now. I enjoy my 2 days at work and while I feel able I’ll go on working. I don’t think I’ll do a third day even though more comfortable.

Q Did you think that after you were 65 you might work fewer than 5 days?

A. I never thought I’d cut down on my work at all it was never on my radar. I felt fine.”

1. Counsel for the Claimant submits that it was her intention to work for as long as possible. Despite her disability, she has returned to work part-time. There is no pressure on her to leave from her employers. The claim is put forward on the basis that, without the disability, she would have continued to work full-time. Counsel submits that whilst the defendant Trust may argue that Mrs Miller would have reduced to part-time work in 2008, when she was 65, there is no evidence to support this.
2. I found the Claimant entirely truthful and reliable in all the evidence which she gave. I accept unreservedly her evidence that she loved her work, and that she would have worked for as long as she could. As she put it, retirement was simply not on her “radar”. Some people are anxious to retire at the first possible moment, others, such as the Claimant, take the polar opposite view of retirement, and have no wish ever to retire from work they enjoy. This is entirely understandable for an energetic single person such as the Claimant who lives alone and has few interests outside her work and family. Her evidence that she felt ten years younger than her true age before the amputation is also of significance here. The fact that her work is not pensionable is another important point. It would have made sense for her financially to stay at work as long as she felt able to do so. The fact that, despite her severe disability she still manages to do 2 days’ work per week, and proposes to continue to do so, in a job involving much standing, is further evidence of the fact that, had she not been injured, she would worked full time, or almost full time, for as long as she could. It is also relevant that she was fit and healthy, with only relatively minor back problems.
3. I have reached the conclusion that the Claimant would have been likely to have stayed at work full-time until age 72. Thereafter, I think that she would have been likely to work 4 days per week until 75, when she would probably have retired completely.
4. I think that it is entirely possible that, given the success of the latest prosthesis, the Claimant may continue to work for at least another year. She has, however, at various stages in the litigation said that she may feel she should retire in the near future. It seems to me that whilst it is possible that the conclusion of the litigation may cause her to take the decision then, it is probable that she will continue for a year or so doing work she enjoys so much. I therefore consider that the claim should be assessed upon the basis that all earnings are likely to cease on or about 1^st August 2015.

OTHER POSTS ON THIS CASE

See the post on Zenith PI blog on the issue of age and general damages considered in this judgment.

 

Tags: Age, Earnings, Loss of earnings