Andrew Edis QC sitting as a High Court Judge:
This Judgment is in sections:-
A. SUMMARY OF FACTS, paragraphs 1-6
B. PRINCIPAL ISSUES, paragraph 7
C. FINDINGS ON DISPUTED FACTS, paragraphs 8-17
D. GENERAL DAMAGES ASSESSMENT, paragraphs 18-24
E. OTHER ITEMS OF PAST LOSS, paragraphs 25-32
F. LOSS OF FUTURE EARNING CAPACITY, paragraphs 33-62
G. OTHER PAST LOSSES, paragraphs 63-72
H. TOTALS TABLE final page
A. SUMMARY OF FACTS
- The Claimant is 29 years old. The Defendant has admitted liability to pay 75% of the damages caused by a non-freezing cold injury (NFCI) which he suffered when engaging in exercises in cold weather near Aldershot camp in February 2009. That agreement is reflected in a consent order dated 30th June 2014. These exercises were part of a Potential Non-Commissioned Officer (PNCO) course. At the time of the injury he was an acting Lance Corporal in the Royal Logistic Corps. He passed the course and was subsequently promoted to Lance Corporal. My task is to assess those damages.
- As a result of his injury the Claimant was medically downgraded. Although he was later medically upgraded, he left the Army in October 2011. He claims that this was at least in part because of his injury, as he considered that his career prospects had been damaged and he was unhappy about the way that he had been treated. He arranged new employment as an HGV driver at about the same time as he left the Army and has continued in that employment to date.
- The Claimant's NFCI is described in the skeleton argument submitted on his behalf as "a minor non-freezing cold injury to his feet, with symptoms in his hands of a much less severe nature: see the report of Mr Craig of 15th March 2012". Mr. Craig is the expert medical witness instructed on behalf of the Claimant. Mr. Craig's evidence is not disputed by the Defendant and he was not called to give evidence before me. He described the onset of the NFCI in February 2010 and gives a history of events thereafter. The medical position is summarised in paragraphs 4-6 below.
- When the Claimant was seen at the Institute of Naval Medicine on 29th June 2010, Dr Oakley thought that he had made a full recovery [B/177]. However this proved not to be correct, as at the date of Mr. Craig's report there was considerable clinical evidence that a total recovery had not yet taken place, see paragraph 13.7 [A/165]. The difference between these opinions is really less stark than it may seem.
- The Claimant suffers from ongoing symptoms as set out in his witness statement at paragraph 86 [A/113]. He states that they "…can get much worse in cold conditions." His appointment at the INM in 2010 was in the middle of the summer, when one would expect symptoms of a cold injury to be very much improved or absent even if there was an ongoing condition. Dr. Oakley did say that in June 2010 the Claimant would need to continue to look after his feet, and this is because of the increased vulnerability to cold weather which is a consequence of this condition. He was not therefore saying that the Claimant was completely cured.
- Mr. Craig also advised that the Claimant would have to continue to be very careful with his hands as well as with his feet, because he was more vulnerable to adverse environmental cold than anyone not so previously injured (see report at paragraph 13.14 [A/166]). Dr Oakley did not mention the Claimant's hands because the Claimant did not complain of any injury to his hands until he saw Mr. Craig in 2012. He accepted this in evidence, and told me that this was because it was his feet which were the main problem.
B: THE PRINCPAL ISSUES
- The principal issues are as follows:-
i) Whether the Claimant sustained any injury to his hands.
ii) Whether the Claimant left the Army because of his injury or for other reasons.
iii) The amount of general damages for pain suffering and loss of amenity, and for loss of congenial employment.
iv) Whether I should value future loss of earning capacity by reference to Ogden 7, Tables A-B. This issue involves deciding whether the Claimant has a "disability" for the purposes of those Tables. I have to consider the reduction factors in Tables A and B and decide how to reflect my findings of fact about the Claimant in this part of the award, or if I should not do that, but simply apply the Tables.
C: THE DISPUTED FACTS
THE HAND INJURY
- The alleged injury to the Claimant's hands is controversial because although the Claimant remained in the Army for 2½ years after sustaining his NFCI, he did not tell anyone that his hands were affected. He now says that he has had one occasion since he left the Army when he was unable to deal properly with the curtain around the trailer of the wagon he was driving, and that on one occasion when playing golf he had to stop early and try to warm his hands in his brother's armpits because of the cold and pain. He says that he is "clumsy" with hands in his witness statement. Mr. Craig is less convinced about the existence of a hand injury than he is of an injury to both feet. He says that there is "possibly" such an injury. Mr. Craig also said that any injury to the hands had recovered (see paragraph 13.3 at [A/164]), with the caveat that he noted a recurrence of symptoms two weeks prior to preparation of the report when the Claimant's hands had been exposed to rainy, windy weather (paragraph 8.0 at [A/158]). He warned that the Claimant would need to be very careful with his hands as well as with his feet in future (paragraph 13.14 at [A/166]):
"13.14 Going somewhat further than just suggesting that he is not cured, all the evidence would predict that he is, for the future, more vulnerable to adverse environmental cold than anybody not so previously injured. I would actually extend this to his hands, which may well have been sensitised to the cold as a result of what is described above, and he continues to need to be very careful with these as well as his feet." [Emphasis added].
- In these circumstances, I am unable to find that the NFCI sustained in February 2009 extended to the Claimant's hands. Mr. Craig's diagnosis of the injury to the feet is based on objective findings and the medical records. In the absence of these pieces of evidence in respect of the hands, he is right to express his conclusions tentatively. My principal reason for this finding is that the Claimant did not mention any problem with his hands at the time of injury or for years afterwards. I cannot accept, in these circumstances, that he sustained any injury to them. This makes only a limited difference to the value of the claim, because the Claimant, when asked about this, made it quite clear that it was really his feet which were the problem, even if the NFCI did extend to the hands.
THE REASON WHY THE CLAIMANT LEFT THE ARMY
- A significant issue is whether the Claimant left the Army as a consequence of his injury. He says that he felt that there was no future in his role as a training NCO, and that it was clear that he was not going to be promoted further because of his condition.
- The Claimant's employment expert Ms Fox is relied upon for her opinion on the reasons why the Claimant left the Army, but this seems to me to be a matter of fact about which I have to make a judgment and I do not consider that expert evidence on the issue is admissible.
- The Claimant's decision to leave the Armed Forces is said to have been a combination of (i) concern that his prospects for promotion were damaged because of his injury; and (ii) general unhappiness about his injury and the way that he had been treated subsequently. His family situation at the time was also relevant, but he claims that he would not have applied for voluntary discharge had it not been for the situation resulting from his injury. He says he felt unhappy and wanted to leave, given that the Army had caused him to suffer a foreseeable and preventable injury which would be likely to cause him long term problems. His expert Mr. Craig has told him that he is still more vulnerable to the cold because of his NFCI and there is no guarantee that he will ever recover (see Claimant's witness statement at paragraph 99).
- When he applied for early release from his service, the Claimant was required to give a reason. He did not mention his injury although he quite well could have done, since it was on his records and everyone knew about it already. He said that he did not want to be thought of as a "whinger". However, being a "whinger" might be thought to make it more rather than less likely that the Army would grant him the early release he was seeking. I find it hard to accept that his injury was a real motivating factor in causing him to leave the Army, because if it was, he would have said so.
- What he did say in that application was that he had a concern about his child's education, he had a firm offer of a job in civilian life, and he relied on compassionate grounds. He said he had recently been awarded custody of his daughter and wanted initially a posting to Somerset, near where she was living with his mother. No such posting was available, and the Army actually wanted to send him to Germany. In fact, as he told me, his former wife had been unable to cope with their child and their daughter was being looked after by the Claimant's mother in Somerset. This was not an ideal arrangement for either the Claimant's mother or for his daughter. He felt that his mother had brought up her own family and that it was really his responsibility to bring up his own daughter. He was also in a relationship with Miss Knight which has recently ended. Her father was able to provide this family with a home and the Claimant wanted to be there to live in it.
- The Claimant was able to get a job with Framptons a haulage business, and he started within a week of his leaving the Army. No doubt it was also important to seize this chance. Family responsibilities and employment prospects appeared to be pulling him in the same direction.
- Against that, he says that he greatly enjoyed the Army and it is plain from his Confidential Reports and Soldier Annual Appraisal Forms that he was doing quite well in his rank as Lance Corporal. He had been appointed Training Junior Non-Commissioned Officer, which was a largely office based job, and enjoyed it. His Section Commander, former Staff Sergeant Cooper, gave evidence and said that the Claimant was good at this job. There were other issues about his attitude and fitness which are referred to obliquely in the Confidential Reports and Soldier Annual Appraisal Forms and much less obliquely in Mr. Cooper's witness statement. The Employment Experts are agreed that he was an average performer before the injury and have examined the Reports after the injury to determine what, if anything, was going wrong in his service which might have contributed to his decision to leave the Army. There is no reference to any injury in these reports, but I have been referred to the Guidance which prohibits any such reference. This is designed to prevent inappropriate observations which reveal discrimination on the grounds of disability. No doubt this Guidance does achieve that objective, but it does make the documents less valuable when trying to assess how a soldier's performance may be suffering because of an injury, or whether there may be other factors affecting it adversely. What I think I can safely find from this documentary material, which is relevant, is that the Claimant was receiving positive encouragement about his promotion prospects and advice on how to achieve promotion. The picture was not as bleak as he suggested to his employment expert, Ms. Fox, to whom he said that there was no point staying in the Army because he was "already knackered" by which she understood him to mean that his prospects had gone. That is not what he was being told by his superiors in this structured annual appraisal system. But for his family commitments, I see no reason why he would not have stayed in the Army beyond October 2011. I shall return to the length of that service later in this judgment. He had been upgraded to MFD (medically fit for deployment) with an L2 medical marker. This means he was medically fit for deployment but that the past history of NFCI would be apparent to anyone checking on his medical grading. He had actually served a tour in Afghanistan in the Winter of 2009/10 while he was downgraded, and he was now fit for any deployment anywhere. This upgrade happened in September 2010, nearly a year before he decided to leave the Army.
- Conclusion:- I am unable to find that but for the injury the Claimant would have stayed in the Army beyond October 2011. I believe that the real reason was his family commitments, and plans for civilian life, and the he would therefore have left the Army when he did even if he had not suffered his NFCI. There is no reason to suppose that his promotion prospects had diminished, and I consider that Staff Sergeant Cooper was right to detect, in the latter stages of the Claimant's service, that he no longer saw himself as a career soldier. In order to be promoted, he would have had to undertake different deployments in his rank as Lance Corporal, but given his status as MFD, there was no reason why he should not do so. He was required to take care of his feet, but was able to do that, which is why he was medically upgraded. Therefore, those parts of the claim which depend on proof that the injury caused him to leave the Army fail.
D. GENERAL DAMAGES ASSESSMENT
- GENERAL DAMAGES:- I have been shown two previous decisions about this condition, although they are much worse cases[1]:
i) Hope v Ministry of Defence [2003] 1 QR 11: The male claimant, aged 22 at the date of injury, sustained a moderate to severe non-freezing cold injury to his hands and feet when stranded in heavy snow in the mountains on active duty in Bosnia. The claimant intermittently lost substantial use of his hands and feet and in addition suffered marked pain and parathesiae. In warmer conditions his feet and hands sweated profusely. His condition was permanent but would not deteriorate. He was medically discharged from the Army but was unable to pursue a career as a carpenter in civilian life to full capacity because he could not work outside or in cold conditions. General damages agreed and approved at £25,000 in November 2001, updating to £36,909 as at June 2014.
ii) Leeson v Siemens Plc [2008] CLY 2902: The male claimant, aged 50 at trial, sustained non-freezing cold injuries to his hands and feet when working in a large industrial freezer. He initially developed symptoms including severe pain to his hands and feet. When he ceased work in the freezer environment there was some improvement in his symptoms but he would continue to experience discomfort and pain in his hands and especially his feet. He should be able to enjoy a relatively normal life during the warmer months but even then early mornings and cooler wet weather were likely to be challenging. The claimant had been certified as unfit for work in May 2005 but had then found work and had worked continuously since August 2005. He worked outside as a maintenance engineer, which was aggravating his symptoms. The judge accepted that indoor maintenance jobs were in short supply. He would need special clothing for his hands and feet, and would heat his house to a higher temperature and for longer periods each year. General damages of £20,000 were awarded in September 2007, updating to £24,644 as at June 2014.
- Although the Judicial College Guidelines do not contain guidance for this specific type of injury, my attention has been drawn to the following:-
Orthopaedic injuries (J) Vibration White Finger (c) Moderate £6,350 to £12,300:
"This bracket will include claimants in their middle years where employment has been maintained or varied only to remove excess vibration. Attacks will occur mostly in cold weather."
- The Claimant has found employment where he can largely avoid exposure to cold and wet weather: see his witness statement at paragraph 91 [A/115]:
"I am lucky because my employer sympathises with my condition. I spend most of the day driving up and down the country and, because I stay in a heated cab, I have very little exposure to the elements."
This is not dissimilar to a situation involving a claimant with Vibration White Finger who avoids excess vibration at work. There is a further similarity in that the Claimant's symptoms are worse in cold weather.
- I have also been shown this from the Guidelines
Orthopaedic injuries (P) Foot Injuries (f) Moderate (£10,100 to £18,350) and (e) Modest (up to £10,100):
"(e) Moderate
Displaced metatarsal fractures resulting in permanent deformity and continuing symptoms. There may be a risk of long-term osteoarthritis and/or future surgery.
(f) Modest
Simple metatarsal fractures, ruptured ligaments, puncture wounds and the like. Where there are continuing symptoms, such as a permanent limp, pain or aching, awards between £5,150 and £10,100 would be appropriate. Straightforward foot injuries such as fractures, lacerations, contusions etc. from which complete or near complete recovery is made would justify awards of £5,150. Modest injuries that resolve within a short space of time will attract lower awards."
- Although the injury is of a different nature it is suggested that to the extent these brackets are relevant the Claimant falls either at the lower end of Moderate, or the upper end of Modest, in relation to the injuries to his feet. I derive very little assistance from this comparison.
- The Claimant submits that the appropriate level of general damages for pain, suffering and loss of amenity is £17,500, bearing in mind the following factors:
i) The Claimant's injury is less serious than the injuries sustained in the two NFCI cases mentioned above.
ii) The Claimant has not made a full recovery. He has some ongoing symptoms and both his feet remain vulnerable to future cold exposure.
iii) The Claimant is much younger than Mr Leeson. The Claimant is now aged 29 whereas Mr Leeson was aged 50 at trial. The Claimant will thus have to live with his condition for a significantly longer period of time. By way of comparison, an award of £17,500 for PSLA would be just under half the general damages award in Hope and would be just over two-thirds the award in Leeson.
- My figure for general damages in this much less serious case of NCFI where there was a substantial period of initial pain, but substantial symptomatic recovery by the Summer of 2010, is £12,500. This reflects the fact that the Claimant was able to complete a tour in Afghanistan in the Winter of 2010/11 while suffering from the after effects of the injury to a greater extent than he is now. This was not purely office based work, because one of his reports refers to contact between his vehicle and an Improvised Explosive Device and the fact that he had the courage to take a vehicle out on the day after that happened. His performance won praise. I fully accept that he has to avoid being outside in cold weather and that he has days when his feet are symptomatic. He is permanently sensitised to the effects of cold on his feet. However, he told me that he goes fishing and clay pigeon shooting all year round. He is able to work, and obviously has become a valued employee of Framptons.
E: OTHER ITEMS OF PAST LOSS
- Loss of Congenial Employment. This claim fails because he gave up his career for other reasons than the injury. The Claimant had previously hoped to reach the rank of Staff Sergeant, which he thought was a realistic expectation, and had certainly hoped to complete 22 years of service. I shall return to this important issue below. He says that he misses the camaraderie of the Armed Forces, and I have no doubt that this is so.
- Additional housing costs resulting from decision to leave Armed Forces: The Claimant also claims £11,782.69 for additional housing costs caused by his leaving the Army. This claim also fails on my finding of fact.
- Additional heating costs. The Claimant claims additional heating costs in any event. These have been calculated by reference to the fact that the monthly payments made for electricity no longer return the account to credit, and the debit balance is said therefore to be caused by the greater use of electricity by the Claimant.
i) Mr.Craig noted that the Claimant kept his house warm and that although he did not know whether he was paying more in energy bills than his neighbours, "…the description he gave to me about the excess heat in his house would rather suggest this is the case." (report paragraphs 8.3 and 13.11 at [A/158 and 166]).
ii) The Claimant states that one of the ways in which he manages his symptoms is by switching on the heating, even when it is warm outside, see his witness statement at paragraph 87(g) [A/114 to 115]. His former partner Ms Knight states that "John does a lot of things to help manage his symptoms…He always has the heating on at home, which can be expensive."
iii) Based on the bills for the property before and after 3rd October 2011 (the Claimant's discharge date), the increased heating costs are around £74 pcm. In addition to paying off the existing balance, the increased payments of £322 pcm predicted that the Claimant would use £1,013.53 between 12th September 2013 and the annual review in February 2014, a period of, say, five months [B/278]. This is equivalent to £202.71 pcm, an increase of £73.71 pcm on the previous payments of £129 pcm. 33.23 months x £74 = £2,459.02.
iv) It seems to me that it is impossible to find that all the increase in electricity costs is attributable to the injury. Electricity is more expensive than it was, and some providers are more expensive than others. The extra electricity may be required for various reasons. The Claimant told me that he can cope with his job as long as he does not have to work outside. This means that he can manage in his heated cab, and also in the business premises which he has to visit. There is no evidence that he can only work in places which are heated to a greater extent than normal, and I see no reason why his home should require permanent extra heating if his work place does not. The evidence is that the restriction on his ability to work relates only to work which is outside, and not to work in normally heated premises. If he can work in normally heated premises, he can also live in them. It is also the case that the Claimant has changed addresses recently, and now lives with his parents after the end of his relationship with Miss Knight. The evidence on which this calculation of his claim is based therefore relates to premises in which he no longer lives. Although I do not accept that this loss can be measured simply by comparing pre-accident bills with post-accident bills and attributing all the increase to the accident, I do accept that there may be some additional cost incurred by having the heating on for longer periods or at higher temperatures than would otherwise be the case. I decline to attempt a precise calculation of this loss for the reasons given, and award a lump sum of £425, being £150 per year for a little less than 3 years.
- Health Fitness and other Benefits. These are losses flowing from the Claimant's decision to leave the Army and this claim fails on my finding of fact.
- Painkillers. The Claimant takes paracetamol and ibuprofen regularly to help to control his symptoms. He also uses foot powder every day. See his witness statement at paragraph 87(a) and (d) [A/114]. The total sum claimed is £370.40, and I allow this sum.
- Warm Clothing. The Claimant has purchased additional clothing as set out in the schedule [A/54] at a total cost of £554, including warm weather boots for work, a hot water bottle, a thick duvet, three thermal tops, two pairs of thermal trousers, 20 pairs of socks and some slippers. Mr. Craig has advised that the Claimant should continue to protect his hands and feet with appropriate socks, footwear and gloves, see report at paragraph 13.8 [A/165]. The Claimant explains in his statement at paragraphs 86(f) and 87(d) that because he sweats, he goes through clothes more quickly than other people, and that he wears a lot of layers of clothes and carries spare socks with him [A/114]. Although the Defendant points out that only one receipt has been produced, I would be surprised if a man working as a Heavy Goods Vehicle driver after suffering a NFCI did not need additional warm clothing, and the availability of warm clothing is an important reason why he can work. This claim seems entirely reasonable to me and I allow it.
- Travel expenses are claimed in the sum of £284.17 being expenses incurred travelling to appointments with experts and a conference with counsel. The Defendant does not dispute the amounts claimed but suggests that two of the three items should be claimed as part of the costs of litigation. See counter-schedule at [A/79]. I think that this is right. This claim is disallowed on that basis. Having resisted it on that basis, the Defendant will be estopped from refusing to pay that sum as costs. The third item, travel costs of £44, is allowed by agreement as part of the judgment sum.
- Miscellaneous expenses (schedule item 6) [A/54 to 55]. These are agreed by the Defendant in the sum of £14, see counter-schedule at [A/79].
FUTURE FINANCIAL LOSS
F: LOSS OF EARNING CAPACITY
- The Claimant submits that I should assess future loss of earnings on the basis set out in the updated schedule of loss at [A/55 to 61] in the sum of £427,151. This calculation is based on the proposition that he would have stayed in the Army and been promoted but for the NFCI, which I have rejected above. I am approaching this case on the basis that he left the Army for the reasons he gave at the time and this claim therefore fails.
- In the alternative, the Claimant submits that loss of earnings should be assessed using the uninjured and injured multipliers in the schedule at [A/56] to reflect the impact of the Claimant's disability on his earning capacity in the civilian labour market.
- If I decline to assess damages for future loss of earnings on the basis set out above, the Claimant seeks an award for handicap on the labour market.
- The employment experts accept in their joint statement that the Claimant:
"Has a disadvantage on the labour market for some occupations due to his injuries. He will have to avoid jobs that require him to work outside and therefore will be more limited in terms of choice. He lacks the skills, experience and qualifications that he would have had by virtue of a longer Army career."
See joint statement at paragraph 5.2 [A/247].
- It is to be observed that part of the handicap therefore results from the loss of a longer Army career, which I have held he gave up for reasons other than the injury. That element is to be disregarded therefore in my assessment. I do accept that if he loses his work at Framptons, he will have more difficulty finding other work than he would have done if he was medically free to take any job.
- I am asked to bear in mind the following factors, and I do:
(a) It is suggested that the Claimant has very little experience of applying for jobs on the open labour market. He has applied for one job in this life, at Framptons, and was successful. He has worked well for that company ever since. This is reassuring about his ability to apply for jobs, and also to do well in them. I formed the view that the Claimant is a hard-working and capable man who is likely to be sought after by employers. This was confirmed by the evidence of Mr. Cameron, the Defendant's employment expert. There was a limited amount of dispute between the employment experts and it is not necessary to resolve it in the light of the finding of fact about the Claimant's reason for leaving the Army. However, I did accept Mr. Cameron's evidence on this point.
(b) The Claimant's skills and experience tend towards the practical and away from roles requiring much in the way of academic qualifications. This is true, but it was made clear to me during the hearing that his work as a Lance Corporal involved office based work. He also acquired GCSE equivalent qualifications while in the Army in English and Maths. I do not view him as a man who would be entirely limited to manual work.
(c) The Claimant is at a relatively early stage in his working life. Uninjured he would probably have expected to work to the age of 70, another 41 years. He is likely to be looking for work on the open labour market on several occasions throughout his working life. This is a consideration which requires evaluation on the evidence. I was not persuaded that his job at Framptons is any more risky than any other job. It is a family company and the brothers who now run it are approaching retirement, which creates an uncertainty about how it might fare in the future. It may be operated as a family company in the future, or it may be bought either by a larger transport business or by a management buy-out. All businesses are subject to change and all jobs subject to risks. This is a profitable company which has grown in recent years and appears to have a continuing need for drivers. Nevertheless, there is clearly a risk that for one or other of a variety of reasons the Claimant may find himself looking for work in the future and this is a risk for which he is entitled to be compensated.
(d) Technological advances may alter the market for driving jobs during the Claimant's working life.
- The Claimant submits that if damages were assessed on an Ogden Tables A and B reduction factor basis, the difference between the uninjured and the injured multipliers would be 10.41, in effect over ten lost (multiplier) years. Alternatively, it was submitted that an award for handicap on the labour market should be for at least three years' net loss of earnings. This is a very substantial difference and represents a substantial issue which I have to resolve. The multiplicand is based on these figures with which I was supplied after the hearing by counsel for both parties:-
Agreed net pay calculations
These are taken from the P60s, with the exception of the most recent, which is based on the payslip for 1st July 2014. The discrepancy between the net pay figure calculated from the P60s and from adding up the "net pay" on the payslips is due to the reimbursement of expenses shown on the payslips and included in the payments made to the Claimant.
| Gross pay: |
£9,956.04 |
| Tax: |
£1,298.40 |
| Employee's national insurance contributions: |
£794.39 |
| This equates to net pay of: |
£7,863.25 |
| |
|
| Tax year to 5 April 2013 |
|
| |
|
| Gross pay: |
£25,093.76 |
| Tax: |
£3,365.60 |
| Employee's national insurance contributions: |
£2,082.68 |
| This equates to net pay of: |
£19,645.48 |
| |
|
| Tax year to 5 April 2014 |
|
| |
|
| Gross pay: |
£27,179.25 |
| Tax: |
£3,433.80 |
| Employee's national insurance contributions: |
£2,303.82 |
| This equates to net pay of: |
£21,441.63 |
| |
|
| Current tax year (14 weeks to 1st July 2014) |
|
| |
|
| Gross pay: |
£7,203.20 |
| Tax: |
£901.60 |
Employee's national insurance contributions:
(assumed based on contribution of £38.04 in week 14) |
£532.56 |
| This equates to net pay of: |
£5,769.04 |
- I am going to use £21,442 as the net annual loss for each full year when Mr. Billett is not in employment because of his restricted ability to work. This is the annual net pay to 5th April 2014, and is also very close to the figure for the year to 1st July 2014 if it is annualised. Therefore, if I use Ogden Tables A and B reduction factors (RF) the loss is 21,442 x 10.41 = 223,211. If I use a traditional method, it is suggested it should be 21,442 x 3 = £64,326.
- The traditional method was based on a judicial assessment of the chances of a particular Claimant failing to find work quickly when necessary, and of the chances of that Claimant becoming unemployed and thus needing to look for other work. If he has another 41 years of working life, there is obviously a substantial chance that he will need to find other work, but the traditional method did not offer any formula for assessing that chance, or of the extent to which his actual difficulty may cause him longer periods of unemployment than otherwise would have been the case. In such a case the traditional method would also take into account the fact that the Claimant would always be employed in a job which he could actually do, and would therefore offer employers skills and experience in work for which he was medically fit which would assist him in any job search.
- The Ogden Tables A and B first appeared in Ogden 6, published in 2007. They now appear in Ogden 7, published in 2011. They constitute an attempt to provide and apply statistical information to assess the likely different career paths of a Claimant who is injured, as against one who is not. The concept used to define "injured" is that of disability as defined in the Disability Discrimination Act 1995, and in the Equality Act 2010, to which I shall return below.
- The Civil Evidence Act 1995 provided as follows:-
10.— Admissibility and proof of Ogden Tables.
(1) The actuarial tables (together with explanatory notes) for use in personal injury and fatal accident cases issued from time to time by the Government Actuary's Department are admissible in evidence for the purpose of assessing, in an action for personal injury, the sum to be awarded as general damages for future pecuniary loss.
(2) They may be proved by the production of a copy published by Her Majesty's Stationery Office.
- Making them admissible does not, of course, require the Court to follow them, but the invariable practice is to do so if the other evidence permits. It is worth making the observation that there is no statutory obligation to apply them in any particular way. Further, it is the Explanatory Notes and Tables which are admissible and not the Introduction or any academic commentary by members of the Working Party. This material is not to be ignored where it is helpful, but the Explanatory Notes are the primary evidence.
- The Introduction to the Ogden Tables, 7th Edition, published 2011 contains the following:-
Contingencies other than mortality
17. We have persuaded Dr Victoria Wass to join the Working Party. She has suggested changes to the definition of 'disabled' and also clarified some of the language in the Explanatory Notes. We anticipate some further suggestions for amendment in the eighth Edition.
18. The Working Party notes that there have been a number of cases in which judges have made significant adjustments to the suggested discount factors. In particular the approach of the trial judges to the calculation of future loss of earnings in Conner v Bradman [2007] EWHC 2789 (QB) and Clarke v Maltby [2010] EWHC 1201 (QB) has generated some debate. These issues will be discussed in detail when drafting the eighth Edition and consideration given to whether or not the Explanatory Notes need amendment, especially as regards the circumstances in which it might be appropriate to depart from the suggested non-mortality reduction factors and the size of any adjustments that are made. In the meantime, practitioners performing such calculations are referred to the helpful article by Dr Wass, "Discretion in the Application of the New Ogden Six Multipliers: The Case of Conner v Bradman and Company", published in JPIL Issue 2/2008 pp 154- 163 which highlights some of the relevant issues.
- Paragraphs 31 and 32 in Section B of The Explanatory Notes, replicated in this respect unchanged from Ogden 6, say (with some words underlined by me):
31. The methodology proposed in paragraphs 33 to 42 describes one method for dealing with contingencies other than mortality. If this methodology is followed, in many cases it will be appropriate to increase or reduce the discount in the tables to take account of the nature of a particular claimant's disabilities. It should be noted that the methodology does not take into account the pre-accident employment history. The methodology also provides for the possibility of valuing more appropriately the possible mitigation of loss of earnings in cases where the claimant is employed after the accident or is considered capable of being employed. This will in many cases enable a more accurate assessment to be made of the mitigation of loss. However, there may be some cases when the Smith v Manchester Corporation or Blamire approach remains applicable or otherwise where a precise mathematical approach is inapplicable.
32. The suggestions which follow are intended as a 'ready reckoner' which provides an initial adjustment to the multipliers according to the employment status, disability status and educational attainment of the claimant when calculating awards for loss of earnings and for any mitigation of this loss in respect of potential future post-injury earnings. Such a ready reckoner cannot take into account all circumstances and it may be appropriate to argue for higher or lower adjustments in particular cases. In particular, it can be difficult to place a value on the possible mitigating income when considering the potential range of disabilities and their effect on post work capability, even within the interpretation of disability set out in paragraph 35. However, the methodology does offer a framework for consideration of a range of possible figures with the maximum being effectively provided by the post injury multiplier assuming the claimant was not disabled and the minimum being the case where there is no realistic prospect of post injury employment.
- The Explanatory Notes, which are the evidence in this respect, as I have pointed out above, therefore expressly permit the Court to depart from a mechanistic application of the Tables in appropriate cases. I have heard submissions in this case concerning the RF, and whether Judges ought to depart from them. I was supplied with two papers written by Dr. Wass since the 7th Edition was published, Ogden Reduction Factor adjustments since Conner v. Bradman [2012] JPIL 219 and Ask the Expert: William Latimer-Sayer Asks Victoria Wass Some Questions about the Practical Application of the Ogden Reduction Factors [2013] JPIL 36. The first of these papers identifies a series of cases where judges at first instance in the High Court have altered the RF so as to reduce the size of the award which would otherwise have followed. This is described on page 219 as "judicial interference" and it is apparent that there is a real divergence of view between Dr. Wass and the judiciary about the way in which the Tables should be used. The second article is extremely informative about the RF and contains the following:-
The RFs provide the best available measure of the employment prospects for a typical member of each group. They are accurate as a measure of the group average but they are not likely to be accurate for any individual within that group. Imprecision is an inevitable consequence of scheduled damages. The alternative is an individual assessment by expert in each case.
And
We should assume that the RF will be wrong for any individual claimant but that the error is random, in terms of direction, and normally distributed in terms of magnitude (as the magnitude increases the chances of it reduces).
On this basis, discretion is justified where the claimant is idiosyncratic in some way that we haven't already measured and we can predict the direction in which this will affect the claimant's employment prospects. This adjustment can be to increase the RF, for example because the impairment is unusually mild, or it is mild in its disabling effects due to the maintenance of core skills. It can also be to reduce the RF, for example due to particularly severe impairment, multiple impairments, mental impairment, or a particularly disabling effect due to the impairment of core skills.
…..
I have provided advice in a number of cases though none have then gone to trial. It is my view that a strict application of the RFs should be the default position.
She was asked why she called the practice of discounting the RFs "unfortunate" and said
Apart from the likely injustice associated with under-compensating the claimant (most adjustments have raised the RF), there is the issue of uncertainty. The purpose of the Ogden Tables, the multiplier/multiplicand formula and the setting of a fixed discount rate is to provide a degree of certainty and predictability to the damages calculation and to avoid the need for expert evidence in each case. The approach of judges making routine adjustments without reference to expert evidence in relation to the size of the adjustment, means that it is now difficult to predict the outcome in a given case….."
- The citations from Dr. Wass's 2013 article above seem to me to demonstrate exactly the reasons why a court is unlikely to apply unadjusted RFs to the multiplier, without evaluating the result and adjusting it if it appears necessary to do so. The court is required to fix a figure for compensation in the individual case before it, and the fact that following a Table will produce a figure which is known to be wrong is not answered by the observation that the error is random. This means that if the Tables are applied without adjustment, the right overall figure of damages across all cases will be awarded, but no Claimant will get the correct sum in damages and no Defendant will pay the right sum. If I have misunderstood the passages which I set out above, I apologise but I have not heard from Dr. Wass or any other expert in her field and I must interpret the material before me as best I can.
- The alternative to a strict application of the RFs may be "an individual assessment by expert in each case", but that is exactly what I have conducted here. Having heard expert medical and employment evidence and having heard from and assessed the Claimant I would be acting perversely simply to ignore that material. Everyone agrees it is relevant and that I should decide the case on the relevant evidence. The fact of the matter is that this Claimant is employable, and experienced, and suffers from a very mild physical impairment which has some impact on the choice of jobs available to him, but allows him to work as a Heavy Goods Vehicle Driver which is what he wants to do. I accept that it might be significantly harder for him to find such work if he became unemployed and declared his condition on an application form. These facts must be properly reflected.
- The Court is therefore presented with a problem to which there are three suggested solutions
i) A traditional award of a lump sum as in Smith v. Manchester Corporation, Blamire v. South Cumbria Health Authority [1993] PIQR , and Ward v Allies & Morrison Architects, [2012] EWCA Civ 1287; [2013] P.I.Q.R. Q1.
ii) An award based on Ogden tables A and B without adjustment.
iii) An award using Ogden tables A and B as suggested in paragraph 32 of the Explanatory Notes.
- I do not consider that this is an appropriate case for a traditional lump sum award. It seems to me that the cases where that approach was properly to be applied are cases where there is a great deal of uncertainty about what the Claimant would have done if uninjured. In the present case I have no doubt what he would have done: he would have left the Army at the time when he did, he would have worked for Framptons unless or until he got a better job. I think he would eventually have wanted to take a job which he could do without being away from home as often as he now is. I cannot say when that would have happened or what other job he would have moved to, but I consider it likely he would have stayed in the transport or logistics industries. That has been his Army experience, his civilian experience and also a job which he has always wanted to do. I find that he would have pursued a career in that industry which would have earned him income at least at his present level of earnings had he not been injured. I find that his career path with his injury will be different only to the extent that if he has to change jobs, this will involve a longer search for work than otherwise would have been the case. For as much of his future career as he can arrange, he will be earning exactly the same as he would have been if uninjured. What I have to do is to value that risk.
- This is therefore a different kind of case from Ward v Allies & Morrison Architects in which the uninjured career path contended for was work as a theatrical model maker. The evidence was that there is very little of this work available and it was very competitive, see paragraph 10. The only witness who spoke of it was the Claimant's university teacher who had had to give it up because he could not make a living. Therefore the Court of Appeal held at paragraphs 25 and 26 that the Trial Judge had been driven to adopting the Blamire approach by the existence of the many imponderables. There is a distinct hint in paragraph 26 of the Court of Appeal judgment that the Blamire award had been unduly generous because the Claimant had actually failed to prove any loss at all. This is plainly not such a case. There is a recognised form of loss, and the dispute concerns the different methods of valuing it: the Smith v. Manchester approach and the Ogden Tables approach.
- The principal concern about the use of Tables A and B unadjusted is that the three factors identified as relevant to the job path of an injured or disabled Claimant are very broad categories. They are (1) is the Claimant actually in employment or not- employment status; (2) what is the Claimant's level of education – educational attainment; and (3) is the Claimant disabled as defined in the Explanatory Notes: disability status? Of these, (3) is far and away the most important. However, the definition of disabled in the Notes is very broad and captures people such as the Claimant with very mild conditions, and others with very severe ones. Obviously, as is pointed out, those who are in work, or able to work, will tend towards the lower levels of disability and the statistical results of analysing their career paths will tend therefore to concern predominantly those towards the milder end of the disability spectrum. Therefore, there is a level of self-correction in the statistics. Dr. Wass makes these three points in her 2012 article:-
i) There are two separate and distinct effects caused by disability: (i) lower annual earnings due to occupational downgrading and/or lower hours both of which are a common response to disability ("the wage effect") and (ii) increased employment risks due to restricted capabilities ("the employment effect"). The larger effect is the increased risk of non-employment, and it is this effect that the disability adjusted reduction factors seek to capture.
ii) Most people who are disabled are not severely disabled. Severity of impairment is measured in the Health and Disability Survey of 1996-7 on a scale of 1-10 where 10 denotes the greatest severity. The distribution of severity indicates that the first three least severe categories (1-3) account for 42.9% of the disabled. The middle four categories (4-10) account for a further 43.9% of the disabled. The three most severe categories (8-10) account for 13.3% of the disabled population. The distribution is concentrated towards the mild end of the spectrum such that most people suffer from a relatively mild degree of impairment. The reduction factors reflect this distribution.
iii) There is a judicial tendency to conflate the "wage effect" and the "employment effect" such that the assessment of the claimant's loss of earnings is significantly under-estimated. This risk is somewhat lessened in a case where I am awarding damages for the risk of unemployment, and working on the basis that there will be a total loss of wages in that period. I am attempting to assess what the period should be. This only requires consideration of "the employment effect".
- Paragraph 35 of the Explanatory Notes to the Seventh Edition of the Ogden Tables, as follows:
"Disabled
A person is classified as being disabled if all three of the following conditions in relation to the ill-health or disability are met:
(i) the person has an illness or disability which has lasted or is expected to last for over a year or is a progressive illness,
(ii) the person satisfies the Equality Act 2010 definition that the impact of the disability substantially limits the person's ability to carry out normal day to day activities, and
(iii) their condition affects either the kind or the amount of paid work they can do."
- There is a list of ways in which a disability or health problem may affect a person's day-to-day activities at paragraph 35 of the Explanatory Notes (starting with mobility). This list previously formed part of the definition of disability under the Disability Discrimination Act 1995 but has been removed from the definition in the Equality Act 2010.
- The data which has been used to create these tables is the result of the Labour Force Survey (LFS) over a number of years, and it is important to know what definition that Survey used in categorising respondents to its questionnaires as either being disabled or not. The data used to define disability is gathered from the questions below. I am informed by counsel that that the wording of these questions did not change between 1998 and 2013. The questionnaires for 2007 to 2013 are to be found at http://www.ons.gov.uk/ons/guide-method/method-quality/specific/labour-market/labour-market-statistics/index.html. The numbering of the questions varies but within the 2007 questionnaire the relevant questions are 455, 456, 457, and 461.
455. Do you have any health problems or disabilities that you expect will last for more than a year?
456. Does this health problem affect the kind of paid work that you might do?
457. Does this health problem affect the amount of paid work that you might do?
461. Do these health problems or disabilities, when taken singly or together, substantially limit your ability to carry out normal day to day activities? If you are receiving medication or treatment, please consider what the situation would be without the medication or treatment?
- Therefore, it appears that the Ogden tables A & B reflect the experience in the labour market of people who answered "Yes" to the above questions. This means that the courts will be applying the right definition of "disabled" to obtain value from the LFS data and the Ogden Tables derived from it if they use the definition of "disabled" in the Explanatory Notes.
- I therefore move to decide whether the Claimant is "disabled" by the Ogden test. In doing so, I use the ordinary legal meaning of the word "substantially" which means "more than minimal". I find
i) That he has a physical impairment resulting from his NFCI which has lasted and is expected to last for over a year. There is an issue as to whether the continuing problems from which he suffers amount to a disability, but however they are to be described, and however significant they may be, they are certainly going to last longer than 12 months. I have made my findings about the nature of his physical symptoms above. His feet are permanently sensitised to cold and give him pain when they become cold.
ii) That he satisfies the Equality Act 2010 definition that the impact of the disability substantially limits the person's ability to carry out normal day to day activities. His ability to carry out normal day to day activities is limited because he cannot work or do anything else outside in cold conditions for any appreciable period of time. A number of normal day to day activities involve being outside and it is not necessary to list them. Work is one day to day activity and that is addressed at (iii) below. To this extent there is a degree of overlap between the three parts of the test.
iii) His condition affects either the kind or the amount of paid work he can do. This is because the employment experts are agreed, on the medical evidence, that he must avoid working outside in cold conditions and that this is a relevant handicap on the labour market. This affects the kind of paid work he can do.
- Having found that this is not a lump sum case, and that the Claimant is disabled, it seems to me that I should use the Ogden tables A and B method, because there is evidence to support it, particularly in the Explanatory Notes. Just as I should not ignore the evidence of the witnesses in the case, so I should not ignore the Explanatory Tables either. In using the tables, I am entitled to take into account the fact that I find it hard to conceive of very many people who could be classified as "disabled" who are as fit and able as is this Claimant. It must be remembered that when he left the Army he was medically fully deployable. He could be deployed anywhere in the world to do anything. If I apply the RFs without deduction, he will clearly be one of those whose award will be wrong, because he will be compensated as any other disabled person would be compensated when in reality his disability is, by the standards of disability, quite minor. His condition qualifies as a disability under the test I have applied, but only just.
- How then, am I to apply the RFs in this case? I have no expert evidence or guidance as to what adjustment I might make from the Explanatory Notes, although on my findings about this case there is, in my judgment, a very clear indication from paragraphs 31 and 32 of the Notes that I should do something. Dr. Wass in her article Ask the Expert: William Latimer-Sayer Asks Victoria Wass Some Questions about the Practical Application of the Ogden Reduction Factors [2013] JPIL 36 at page 39 suggests I should "stick with the disabled RFs and instead make a comparison within the disabled RFs with RFs which are associated with a higher education qualification a younger age or a better employment status". In the case of Mr. Billett this means adjusting the RF from 0.54 either to 0.6 or 0.61 if I assume he is better educated, or 0.55 if I assume only that he is younger. His employment status cannot be improved. This approach allows only four options and the maximum discount from the unadjusted RF which I could make would be about 16-18% in the reduction of the value of the award. This would involve a finding that this Claimant will be out of work, because of the injury, for over 9 years of his working life. I find this extremely hard to accept given the very low level of disability from which he suffers and his excellent work record. The Tables make no allowance for experience and a good work record. "Employment status" is simply either employed at the date of assessment or not employed at the date of the assessment. Mr. Cameron, the Defendant's employment expert, described him as "very employable" and I agree. If I use RFs which are not adjusted significantly I will be giving that finding no weight at all, and equating this Claimant with someone who had worked very little but happened to have some work at the time of assessment.
- For these reasons, and given that my function is to do the best I can to put this Claimant (and not a notional other person) in the position in which he would have been had he not suffered a minor NFCI, I have concluded that I should use the multiplier/multiplicand method but that my multiplier will be substantially reduced for contingencies other than mortality to reflect the minor nature of the disability. I consider that in the absence of any other evidence or guidance I should take a mid-point between the not disabled RF of 0.92 and the disabled RF of 0.54, which is 0.73. There is little logic in this approach, except that it gives a figure which appears to me to reflect fully the loss sustained by the Claimant, but to do so in a way which does not obviously overstate that loss. A judicial approach to the assessment of damages involves an exercise of judgment in the individual case being considered. Sometimes statistics give an answer which appears obviously too high, given the picture which emerges in the particular case. Where that happens, the Judge has to make an apparently arbitrary adjustment to that result, or to decline to use the statistical material at all. It appears to me that it is preferable to make some use of the Tables and thus to give weight to the data from which they are derived. This means that the Tables have resulted in a higher award than a traditional approach.
- I next need to make a finding as to the Claimant's likely retirement age which is not affected by his NFCI. The Claimant is now 29 years old. As things stand, he will qualify for a State Pension when he is 68. The reform to the State Pension system is premised on the fact that people nowadays are able to work longer than formerly because of better health and longer life expectancy. There is reason to assume that the Claimant will retire before he is entitled to his pension, and no reason to think that he will continue to work after that time. Of course, either of those things may happen, but it appears to me that I should work on the one clear piece of evidence I have about the likely date of retirement, which is that he will receive his pension at age 68. I therefore find that the appropriate multiplier for future loss of earnings in this case (before adjustment) is 24.29. This produces an uninjured multiplier of 24.29 x 0.92 = 22.35. The adjustment factor I have decided to apply is 0.73. Therefore on this basis this aspect of the award is:
24.29 x 0.73 = 17.73; 22.35 – 17.73 = 4.62; 21, 442 x 4.62 = £99,062.04.
On my findings there is very little risk that this sum will under-compensate this Claimant.
G: OTHER FUTURE LOSSES
Loss of pension attributable to decision to leave Armed Forces
- The total future loss of pension claimed is £136,371. This claim fails on my findings of fact
Loss of pension in any event (in the alternative)
- I am unpersuaded that the Claimant will suffer any loss of pension because of his likely periods of unemployment. I have no sufficient evidence on which I could calculate any such loss.
Additional housing costs attributable to decision to leave Armed Forces
- The total future additional housing costs for the period during which the Claimant would have remained in the Armed Forces are claimed at £36,465, but this fails on my finding of fact
Additional housing costs incurred in any event
- I have made a round sum award for additional heating costs which I will repeat in a lifetime future award of 150 x 29.88 = 4,482.
- The Claimant also claimed to have planned to have underfloor heating installed which will assist him in managing his symptoms. The quotation on which this claim was based was for a property in which he no longer lives and I am not persuaded that he is entitled to recover under this head. There is no evidence that this form of heating would be any better than any other.
Home maintenance
- The Claimant is unable to do home maintenance tasks outside in cold weather. Although this claim is not covered by the employment experts it is indirectly supported by the finding in their joint statement that the Claimant "…will have to avoid jobs that require him to work outside." Just as the Claimant has to avoid jobs that require him to work outside, he has to avoid other activities that involve him being outside in cold weather. His former partner Ms Knight has been doing the outside jobs, see her statement at paragraph 9 [A/126], but as they have separated the Claimant is likely to have to engage professional help in the future. I consider that it will be possible for the Claimant to arrange to do external maintenance work, if any is required, in the Summer when the weather is not cold. I consider that any further loss beyond this is entirely speculative.
Health, fitness and medical benefits
- These flow from the decision to leave the Armed Forces and so fail on my finding of fact.
Medication
- I have allowed a claim for medication in the past because the Claimant takes paracetamol and ibuprofen regularly to help to control his symptoms. He also uses foot powder every day. See his witness statement at paragraph 87(a) and (d) [A/114]. His estimate of the future cost of this is £84 per annum, being £4 per month for paracetamol and ibuprofen, and £3 for foot powder. Over the course of his lifetime the total claim is £2,509.92. I allow this claim.
Clothing
- As set out in relation to past losses above at paragraphs 33 and 34, the Claimant needs additional warm clothing to protect his hands and feet, and also needs to replace clothing more frequently than he would have done previously because he sweats more. I will allow a modest annual sum to cover this head of £250 and the cost over the course of his lifetime is £7,470.
Aids and appliances
- This item, being the cost of a foot spa and replacement cost for life, is agreed by the Defendant in the sum of £167.
CONCLUSION
- I am extremely grateful to both counsel for the clear and helpful submissions I received in writing before the trial, during the trial, and, in particular, after receipt of this judgment in draft. They have saved me from at least some arithmetical and other errors and I am grateful to them both.
- The judgment sum is set out in the Table on the next page.
H: TOTALS
| |
ITEM |
AWARD |
| PAST LOSS |
GENERAL DAMAGES |
12,500 |
| |
ADDITIONAL HEATING |
425 |
| |
PAINKILLERS |
370.40 |
| |
WARM CLOTHING |
554 |
| |
TRAVEL |
44 |
| |
MISC EXPENSES |
14 |
| FUTURE LOSS |
EARNING CAPACITY |
99,062.04 |
| |
HEATING COSTS |
4,482 |
| |
PAINKILLERS |
2,509.92 |
| |
CLOTHING |
7,470 |
| |
AIDS AND APPLIANCES |
167 |
| |
TOTAL BEFORE INTEREST |
127,598.36 |
| |
INTEREST |
358.09 |
| |
JUDGMENT SUM |
£127,956.45 |
