Billett –v– Ministry of Defence (2015)

The Court of Appeal considered the correct approach to determining damages for future loss of earning capacity in circumstances where a Claimant had suffered an injury resulting in only a minor disability and was in steady employment earning at his pre-accident rate.

The Claimant had been employed by the Ministry of Defence as a Lance Corporal and suffered the injury in February 2009. Following treatment he was assessed as medically fit for deployment but he left the army in October 2011. He immediately found new employment as a lorry driver but maintained that he continued to suffer various symptoms in cold weather. The trial judge accepted his evidence that he had suffered difficulty in doing various household tasks and stayed inside in cold weather which limited his ability to do various things.

His earnings as a lorry driver were the same as his earnings before the injury but the experts agreed that if he lost his job he would be at a disadvantage in finding new employment. The trial judge assessed the Claimant as “disabled” and by reference to the Ogden Tables assessed his future loss of earning capacity at over £99,000. In addition the Claimant was awarded general damages for pain and suffering of £12,500.

The Ministry of Defence submitted on appeal that the award of £12,500 for general damages was outside the range for the nature of the injury and that the Claimant was not “disabled” within the definition of the Ogden Tables but that, if he was, damages would be more appropriately assessed using the Smith –v– Manchester method.

Held:

  1. The award of general damages was appropriate.
  2. The explanatory notes to the Ogden Tables stated that a person was disabled if his condition substantially limited his ability to carry out normal day to day activities within the meaning of the Equality Act 2010. While the Ogden Tables provided an extremely wide and broad spectrum for assessing a “disability” the Claimant was at the outer fringe of that spectrum and his disability affected his ability to pursue his chosen career much less than it affected his activities outside work. There was no rational basis for determining how the reduction factor should be adjusted, rendering the application of the Ogden Tables unrealistic. This was a classic example of where a conventional Smith –v– Manchester award was appropriate and the appropriate award based on two years loss of earnings was assessed at £45,000.

Wilson v Al-Khader (2015)

The defendant appealed against a master's order that it was inappropriate at that time to require the claimant's expert to expand on medical evidence in an expert report.

The claimant had suffered catastrophic brain damage due to a medical accident, as a consequence of which she remained in a persistent vegetative state. The claimant served a medical report which, on the issue of her life expectancy, simply said that she could survive for many years and that it was premature to conclude anything else at that stage. The claimant's provisional schedule of loss did not contain a single figure with regard to the size of the claim. The defendant admitted liability and causation and so the case proceeded on quantum only. When the matter came before the master for case management the defendant applied, under CPR Part 35, for clarification as to the claimant's life expectancy. The expert informed the judge as to the difficulties in assessing life expectancy in the absence of old medical records, and said that determining the matter at that time might not be accurate and would not be in the claimant's best interests. The master found that, in the absence of any evidence from the defendant contradicting that evidence, he would not make the order.

The defendant submitted that it was impossible to value the case without the information sought. He further submitted that the master had failed to take into account the overriding objective and the need to promote expedition and proportionality.

HELD:

Under CPR Part 35 questions to an expert had to be for the purpose of "clarification" only. The questions asked had been, however, not clarifications but invitations to express an opinion that the expert had conspicuously not previously expressed.

The master had been entitled to take the view that absent any evidence to the contrary, it was not appropriate to go behind a professional expert's unwillingness to answer a question. The defendant had sought to force a professional to express an opinion that he had declared himself uncomfortable in giving.

In any event, any opinion given by the expert would have been valueless because the annual costs of the claim had not yet been evidenced, and so the life expectancy figure did not yet have core significance.

Some masters might have met that by directing that the claimant should provide the outstanding evidence in accordance with a timetable, and to provide a better particularised schedule of loss, thus allowing the defendant to know the case they had to meet. However, simply because there were other ways that the matter could have been addressed did not make the decision wrong.

It was legitimate to seek the information, but the preferable way was through case management directions and the claimant properly particularising the claim.