LOSS OF EARNINGS IN THE CASE OF A CHILD INJURED AT BIRTH: AN EXAMPLE FROM THE HIGH COURT

It is always worthwhile looking at the way a trial judge has awarded damages for loss of earnings. This assists greatly in advising clients as to the likely approach at trial. In Robshaw -v- United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB) Mr Justice Foskett awarded damages for loss of earnings to a 12 year old boy who had been seriously injured at birth.

THE CASE

This was an action for clinical negligence where the defendant admitted liability. The claimant suffered from cerebral palsy which affected all four limbs. He would never be able to work.

KEY POINTS

  • The judge heard evidence in relation to the pattern of employment in the claimant’s family and awarded earnings based on similar earnings at £42,000 a year.
  • A minimal reduction (£300 a year) was made for expenses of employment.
  • Retirement age was held to be 70.
  • A modest award of £7,500 was made for likely earnings between 16 and 22.

THE JUDGMENT ON THE ISSUE OF LOSS OF EARNINGS

James’ likely work pattern but for his disabilities

    1. It is agreed in this context that I must make findings that will enable an assessment to be made of James’ net annual loss of earnings at various stages of his working life had he been able to enjoy such a life, to include the issue of whether any deduction should be made for the costs of travelling to and from work and of work clothing. I will deal with the longer term first.

(a) earnings from age 22

    1. Issues such as this are always difficult. James is only 12 and making realistic assessments for the future that might have been is yet another uncertain process. However, it is a familiar exercise where agreement between the parties cannot be reached.
    2. In terms of the expert evidence on the issue, the assessments of the psychologists are relevant. In this case David Johnson, a clinical psychologist, and Albert Reid, an educational psychologist, were instructed on behalf of James. The Defendant instructed Anthony Baldwin, a consultant psychologist. Mr Baldwin discussed issues with Mr Johnson and Mr Reid separately and separate joint statements were produced. In the event, Mr Baldwin was not called by the Defendant to give evidence.
    3. Mr Johnson (‘DAJ’) and Mr Baldwin agreed as follows:

“But for his injuries, what would James’ level of cognitive ability probably have been? We agree that James would probably have been of at least Average ability and capable of achieving success in at least further education level. DAJ considers that, given James has been able to perform within the Average range on some tests now … in the context of permanent brain damage and multiple impairments, it is likely that he would have been more able in the absence of injury. DAJ considers it reasonable to suggest the potential for High Average level ability, given an undamaged brain.

But for his injuries, what kind of employment would you have expected James to have been capable of? We agree that James would have probably continued his education to at least further education level. We agree his area of study/employment would probably have been vocational, rather than professional. We agree James could have worked in a skilled occupation, with the potential to progress to managerial levels.”

    1. Mr Reid and Mr Baldwin agreed as follows:

“We agree but for his injuries James could have been a young man whose general level of cognitive function would have most probably fallen within the normal average range.

In Mr Baldwin’s view he would have been capable of independent living and been capable of continuing his education at a college of further education, most probably undertaking vocational qualifications. In drawing this conclusion Mr Baldwin has reviewed the family background including the social and economic resources available to them. On balance he would have obtained vocational qualifications up to NVQ level.

In Mr Reid’s view it is likely that James would have achieved at least 5 GCSE subjects at grades A* – C including Maths and English; he could then have undertaken tertiary qualifications including a Degree leading to a vocational qualification.”

    1. As I have said, Mr Baldwin was not called to give evidence which means that, subject to any concessions made by Mr Johnson and Mr Reid, their evidence was not controverted by any other evidence.
    2. Mr Block and Miss Greaney accept that the consensus of the expert evidence is that James would probably have qualified for and obtained vocational employment and they also accept that there is a strong family history on Mrs Adams’ side of the family of the men working for a local engineering company originally called Ruston’s but which eventually became Siemens, having at one stage been Alsthom. Indeed that was the very clear evidence given by James’ grandfather, in particular, to whom I have previously referred (see paragraph 20 above), of that connection. He said that seven of the family had worked for Ruston’s, including his grandparents on each side, his father, his father’s brother, himself, his brother and his son who had all worked there, several as engineers. When he retired in December 1998 he was Design Group Manager for Alsthom Development Department (having been promoted over the years) and was responsible for the design and manufacture of multi-million pound projects. His brother rose through the ranks and became the chief engineer of Hawker Siddeley Power Engineering.
    3. Darren Chafer, Mrs Adams’ brother, is now 46 and studied mechanical engineering at college. He has been a senior planning engineer with Siemans in their project management team since November 2012 having been promoted over the years. His current pay including bonuses is just under £40,000 per annum gross. If he was to be promoted into the next salary band he could anticipate an annual salary increase of between £6,000 and £9,000. He gave evidence that a starting salary for an apprentice was £24,000 and for a graduate it would be £27,000.
    4. There is undoubtedly a very strong tradition on Mrs Adams’ side of the family to work in the engineering world and, if I may say so, of an obvious commitment to hard work that brings its rewards in terms of promotion. Although the evidence I have summarised in the last few paragraphs was necessarily focused on the male cohort within the family, Mrs Adams’ own approach to work (as summarised in paragraph 31 above) mirrors that ethic. As I have said, I have not seen nor heard from Mr Robshaw. It is, of course, impossible to say, but for reasons upon which I need not dwell, it is possible that, but for James’ disabilities, that the relationship between Mrs Adams and Mr Robshaw would have survived. If that was so, James would have been subject to the regular influences of his natural father as well as any that might have come from Mrs Adams and her family. So far as Mr Robshaw is concerned, it is to be noted that, whilst he started life as a lorry driver, he decided to train as a plumber and apparently has been running a successful business since then.
    5. I rather think, from everything that has been said about James at his present age, that he would have been very much his own man, but it would be surprising if he had not shown the kind of determination to succeed in whatever career he chose that he is presently showing to overcome his disabilities. Had he done so, he would, I am quite confident, have had the backing of all sides of his family. Equally, of course, it is a common experience that, whilst some children will be happily content to fall into the pattern of the working life of their parents, many will want to forge their own future and feel that they have moved on. Putting together all the pieces, I sense that James would have been in that latter category.
    6. Mr Johnson said that a career in engineering would have fitted perfectly well with James’ cognitive abilities and I see no reason not to accept that assessment. Whether James would actually have gone into an engineering occupation is, of course, impossible to say, but my assessment is that he would not have gone into anything less than that and that, accordingly, the broad level of earnings achievable in that sphere will represent a good measure of what he would have been likely to earn over his adult working life. It is, of course, impossible to say whether James would have remained in the area of Lincoln or would have moved away. I am sure that the strong family from which he came would have operated as a magnet to draw him to remain near to what has always been his home. On the other hand, if it was necessary to move some distance away in order to better himself, I am sure he would have taken that course, particularly given all the modern means of maintaining regular contact with loved ones. If he had moved away it is possible that his earnings would have been higher than if he stayed in the relatively restricted area near to Lincoln simply because the choice of potential employers would be greater.
    7. I think the suggestion of the Defendant (which has moved up from the wholly unrealistic assertion in the counter-schedule that he would have earned no more than £18,000 per annum over his lifetime) that he should be seen as earning in the medium range of the male skilled trade occupations (approximately £25,000 per annum gross) or “all male employees” (approximately £28,700 per annum gross) reflects too pessimistic an assessment of his future but for his disabilities, but the figures help inform the general picture.
    8. I have been told that the 2014 ASHE average annual gross earnings for science, research, engineering and technological professionals is £44,406 (SOC 21), for mechanical engineers the average was £44,436 (SOC 2122), for electrical engineers the figure was a little higher at £47,934 and for electronics engineers the average was £44,075. The average for engineering professionals generally (SOC 2112) was £42,718 gross. In order to put these figures into context, the national average for all employees is £37,028, for plumbers and heating and ventilation engineers (SOC 5314) it is £28,317 and for large goods vehicle drivers (SOC 8211) it is £26,619.
    9. Looking across that range in the light of my assessment of the likely future for James but for his disabilities, I consider that a realistic figure for his average annual gross earnings over his working life from the age of 22 would be £42,000. Counsel will doubtless agree the net effect of that. I will probably follow the example of Swift J in Whiten (see [124]) and make a modest deduction (measured in a few hundred pounds) to reflect the likelihood that he would have incurred some expenses in connection with his employment. However, I do not see the suggested deduction advanced by the Defendant of £3,000 per annum as “modest” in the context of this case. If James had stayed in the Lincoln area, the costs associated with his employment would undoubtedly have been small. If he had left that area they could have been larger, but in my view that would have been counter-balanced by higher earnings generally.

(b) pension benefits

    1. There is a dispute about the percentage to be applied to the gross earnings to determine the amount of the claim for loss of pension benefits to which, in principle, it is agreed James is entitled. I will revisit that dispute if agreement cannot be reached in the light of my conclusions as to his future earnings prospects.

(c) earnings from 16 to 22

    1. A claim is advanced on James’ behalf for the part-time earnings at weekends and holidays that it is said he would have earned. Such a claim is not disputed in principle, but there is a difference between what is claimed, namely, just over £15,000 (based upon £3,250 per annum) and the round-figure suggestion of the Defendant of £5,000 (which I am told works out at just over £1,000 per annum).
    2. This claim would not have arisen, in the normal course of events, for another 4 years or so. It is common knowledge that finding reasonably well-paid part-time employment for young people is not very easy in current conditions. I have not received any evidence of what the position is in and around Lincoln. That position may, of course, have changed in 4 years’ time, but I consider some caution needs to be shown here.
    3. A round-figure sum of £7,500 is, in my view, reasonable under this head of loss.

Retirement age if not disabled

  1. It is said on James’ behalf that, but for his disabilities, he would not have retired until the age of 70. The Defendant submits that the age should be 67.
  2. One is looking now (in 2015) at what would be the likely position some 50 years hence. Given the current climate, in which many people work longer than hitherto, it is difficult to believe that at least the same climate will not exist then. On my assessment of James’ likely future but for his disabilities, he would not have been working in heavy, manual work or work with very considerable stresses beyond the normal stresses of everyday working life. To that extent it is, in my judgment, much more likely that he would have worked until 70 rather than 67.

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