Claims for compensation arising from personal injury often incorporate many different types of loss. One of the main heads of claim, and often that which increases a claimant’s overall compensation award, relates to the impact of an injury on employment.
Compensation awards often include elements such as past and/or future loss of earnings and disadvantage on the open labour market (a ‘Smith v Manchester’ award).
Courts also recognise the loss of a job providing an individual with particular purpose or identity. In Scotland this forms part of an injured person’s solatium (pain and suffering) award. In England, this loss is recognised in its own right as ‘loss of congeniality of employment’.
This element of an injured person’s claim requires more than simply that an injured person enjoyed their job but has been unable to return to it because of their injuries. Acknowledgement of this loss is appropriate where the job was one which provided an injured individual with particular purpose and is often seen in those who view their work as a vocation. For example, we see impact on those in nursing, the emergency services or the military.
Whilst Scots law does not recognise loss of congeniality of employment as a head of claim in its own right (except in very exceptional circumstances), there is acknowledgement that it has a basis in the pursuer’s claim for solatium. The court in Stark v Lothian and Borders Fire Board 1993 SLT 652 considered the scope of solatium to be wider than a basic recognition of the impact of physical and/or psychological injury. This acknowledgment was the basis for the court’s refusal to award compensation to Mr Stark for loss of congenial employment specifically. Instead, the court recognised his loss of job satisfaction in his solatium award.
It is of interest to practitioners in Scotland to keep up to date with how English courts approach and value this aspect of a personal injury claim. The recent English case of Warren Constance v MOD and Portsmouth Hospitals University NHS Trust (2020) EWCA 3029 (QB) is an interesting example. As well as loss of congenial employment, Mr Constance’s altered employment path merited discussion of lost earnings in the context of what the defendants argued was a ‘lifestyle’ choice.
The claimant, a former Royal Artillery soldier, suffered loss of hearing. He raised an action in respect of the failures of two doctors to advise him that most of his hearing problems could be corrected by surgery. He submitted but for this failure, he would have been correctly diagnosed in 2005, received surgery in 2006 and continued to advance his career with the MOD as anticipated. As it was, he did not receive surgery until 2013. The court found there to be negligence on the part of both defendants.
The claimant sought compensation in relation to various heads of claim, including loss of earnings and loss of congenial employment.
Mr Constance was expected to have a successful military career, retiring in 2015 or 2017. As it was, the MOD incorrectly treated his hearing loss as noise induced and permanent and restricted his tasks. He developed an adjustment disorder relating to his ongoing hearing difficulties. In 2008 he moved to work in an unfulfilling role as a mess manager and was medically retired in 2011. He went on to secure employment as a postman. In 2019 he left that job and moved out of the area he lived in, taking on another role elsewhere.
The court disagreed with the defendant’s argument that the claimant had failed to mitigate his loss and his decision to work as a postman was a ‘lifestyle choice’ for which they should not be responsible. The court accepted the claimant’s evidence that this decision was taken at a time where he was suffering health problems caused by the defender’s negligence. In those circumstances it was reasonable for him to have taken on a less stressful job. He was awarded compensation for lost earnings but the court determined the move in 2019 was a lifestyle choice for which the defendants could not be held liable.
The court accepted the claimant’s claim for loss of congenial employment insofar as it related to the periods he was working in less fulfilling jobs. An award of £1500 per year(from 2008-2011) was made to reflect the extent to which his Army work would have been more congenial than his job as a postman. A lesser award of £500 per year was made in relation to the period from when the claimant began work as a postman to the point he would have left the MOD in any event (2011- 2017).
Also of interest in this case was that the defendants criticised the claimant’s pleadings in that he did not specifically plead what his alternative career paths would have been with the MOD, but for the negligence. The court did not consider this to be necessary as the MOD provides a wide variety of possible military careers, particularly to a motivated and skilled individual such as this claimant. This approach to the pleading of future wage loss claims for those with military service is of interest to legal practitioners across the UK.
The impact of loss of employment as a consequence of personal injury can be far reaching and seen in a number of different ways. It is useful to remember how this translates into heads of claim, whatever the jurisdiction.