A CHILD’S EARNING POTENTIAL CANNOT BE “WRITTEN OFF”: HIGH COURT DECISION ON EARNINGS WHERE CLAIMANT ALREADY HAD PRE-EXISTING PROBLEMS

In Tate -v- Ryder Holdings [2014] EWHC 4256 (QB) Mr Justice Parker considered issues relating to loss of earnings of a young child from a disadvantaged background. He dismissed the argument that a relatively nominal award should be made for future loss of earnings.

THE CASE

The claimant was seriously injured in 1990 when he was 11 years old. Damages were assessed following approval of a 70:30 offer.

KEY POINTS

  • The court did not accept an argument that the claimant’s prospects of employment would never have obtained or retained employment.
  • Damages were awarded on a multiplier/multiplicand basis with a minor deduction for a (small) residual earning capacity and a discount given reflecting the claimant’s pre-existing disabilities and vulnerability

“Background

  1. The Claimant and his extended family are from West Yorkshire and he has lived there for most of his life. He and his sister were placed on the child protection register at a very early age because of parental inadequacy. He had problems with his educational development. In 1998, he was placed in a long-term foster placement with his aunt. As a young child, he was referred for formal assessment, and psychological and medical reports were obtained with a view to preparing a Statement of Special Educational Needs. He was described variously in the pre-accident records as having been happy, friendly, engaging, popular and keen to please. However, his language and problem solving skills were poor. His test results were consistently within the range of pupils with moderate learning difficulties. He was working towards Level 1 whereas the national average for a 7 year old child would be level 2. He was provided with ten hours of additional support. A review in May 2001, when he was 10, nearly 11, noted problems with concentration, vulnerability, the acquisition of new skills and memory, although treatment for his epilepsy may have contributed to the last of these. His SATS results showed that he was now attaining level 2 in English, Maths and Science, which was below the expected attainment for his age. He still got on well with his teachers and his peers. He was about 3-5 years academically behind his peers.

THE DEFENDANT’S ARGUMENTS: THE CLAIMANT WOULD HAVE HAD A “BLEAK LIFE” IN ANY EVENT

27.William Featherby QC, on behalf of the Defendant, had a secondary, or alternative, line of defence. This can perhaps be best summarised in terms of paragraph 7 of his closing submissions:

“The Claimant would have lived a life of irregular, menial employment and unstable, probably chaotic, relationships. He would not have sought recreation or relaxation other than with family and friends, and those he mixed with would all have been (as they are) bad, substance-abusing influences. His “pro-sociality”, or anxiety to please, compounded by vulnerability and poor resistance to temptation would have overlaid an already challenged life with substance abuse and petty criminality.”

  1. If, Mr Featherby submitted, the Court believed that there was a significant risk that the 11 year-old boy in this case would have gone on in any event to lead the life depicted in this bleak portrait, it would be right in law to discount appropriately any award of compensation: as to the past, because the nature and quality of the Claimant’s life would depend “in large measure on the actions of others, namely his friends and family” (cf Doyle v Wallace [1998] PIQR Q146; Gregg v Scott [2005] 2 AC 176, particularly [83], by Lord Hoffmann); as to the future, the balance of probabilities played no part in assessing future risks and chances, and the prospect of the Claimant’s life being “on the straight and narrow should be discounted for the risks and chances that it would not”.
  2. In support of this contention Mr Featherby marshalled a formidable case, focussing on the Claimant’s family, his material circumstances and his innate intelligence and personality. The Claimant’s father was a violent and serious sexual offender, who had spent long periods in prison. His mother was an alcoholic, who did not work, had committed petty crimes and had attempted suicide. There was evidence that his sister (or half sister) was feckless and possibly dishonest. A cousin (Ben S) was referred to sporadically throughout the trial, as a heavy drinker and somewhat unsavoury individual, to whom the Claimant was attracted and whose influence appears to have been in no way beneficial. Other cousins had similar problems with drink and prohibited drugs. 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.
  3. 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

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.

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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