Herring v Ministry of Defence

This is an appeal from the judgment dated 12 August 2002 of His Honour Judge Masterman sitting as a Deputy High Court Judge, whereby he assessed the damages payable by the defendants, the Ministry of Defence, to the claimant, Mr Herring, in respect of serious spinal and other injuries suffered by him in a parachuting accident in September 1994. The effect on the claimant was that, from being a supremely fit young man in the Territorial Army Special Air Service, contemplating an eventual career in the police, he was, by trial, someone who could walk no more than 500 metres with the aid of a stick and frequent rests.

The general damages were agreed at £28,000. The principal problem for the judge was to assess the effect of the claimant’s accident and disability on his employment prospects on the basis that the orthopaedic experts on both sides were agreed that, while unemployed at the time of the trial, he was capable of full-time sedentary or semi-sedentary work, provided it was in conditions where he could get up and walk about whenever he felt the need.

Prior to the accident, the claimant had worked as a qualified sports coach and lifeguard in a leisure centre. He was an SAS standard physical training instructor. In 1993, he was earning £16,000 per annum gross from that employment with an additional £4,000 gross from casual coaching work with the Welsh Sports Council. He also had earnings from the Territorial Army (“TA”). He was pursuing an HND course in law (which he completed despite the intervention of the accident) with a view to joining the police force which had for some time been his ambition. There was employment evidence on his behalf that, whilst selection for the police in South Wales where he lived was very competitive, he was well-suited to the job and a very strong candidate, likely to be selected. His case was advanced on the basis that he would have started in the police force on a salary of £15,438 per annum gross i.e. £11,500 a year net and would have expected to become a sergeant with earnings of around £26,242 gross i.e. £19,030 net within 5 years. Retirement in that rank was at 55 and the post was pensionable.

Having reviewed the evidence, the judge concluded as follows:

Having so found, the judge went on first to assess the claimant’s earning potential and loss of future earning capacity on the basis of a career in the police force which would have permitted him for a further 3 years from 1997 to continue his TA activities, but that thereafter such activity would have been likely to have ceased as an additional source of income by reason of his interests and activity in the police force. The judge calculated the future loss of earnings in a conventional manner, applying to the multiplicand of the claimant’s notional police salary a multiplier of 15.54 taken from the Ogden tables, reduced to 11.7 for ‘uncertainty’ (a reduction of 25%). This yielded a figure of £269,532.34.

The judge then calculated the claimant’s residual earning capacity in a clerical role as a result of the accident. He assessed it at £15,000 per annum gross i.e. £11,500 net, and adopted a multiplier of 12 (reduced from 15.54), so as to produce a total of £138,000. Deduction of that total from the sum previously calculated for gross earnings loss yielded a net award for future earnings loss of £131,532.34.

The judge made no award for loss of earnings beyond the police retirement age of 55 because he was not satisfied that by then the claimant’s residual earning capacity would be more (at today’s values) than his residual earning capacity as above assessed but deemed to continue to age 65.

Finally, the judge awarded a sum of £50,000 for loss of pension on the basis of the claimant’s notional retirement from the police force as a sergeant at the age of 55.

Issues arise upon this appeal in relation to each stage of the judge’s calculation of loss. I turn first to the question of future earnings loss.

There was no substantial issue at trial as to the figures for police earnings to be used for the purpose of arriving at a multiplicand. However there was an issue as to how far there was room for assessment of the gross loss by application of a conventional (Ogden) multiplier (discounted for contingencies) and applied to a multiplicand based on the claimant’s putative earnings in a police career.

The judge accurately summarised the submissions for the claimant as follows:

The judge went on to summarise the contention for the defendants, namely that so far as a career in the police was concerned, there was no certainty of selection in a competitive field, nor that the claimant would be promoted to sergeant and that therefore any calculation of loss on the basis of a career in the police fell to be assessed only upon the basis of ‘loss of a chance’. No particular percentage figure was put forward but, on this appeal, Mr Kilcoyne for the defendants indicates that, in the light of the judge’s view of the probabilities, a 75% award would have been appropriate.

In this connection the judge was referred, as we have been, to the speech of Lord Diplock in Mallett v McMonagle [1970] AC 166 at 176, to the judgment of Stuart-Smith LJ in Allied Maple Group v Simmons & Simmons [1995] 1 WLR 1602 at 1611 and that of Otton LJ in Doyle v Wallace (1998) PIQR Q 146 at 149-151 as considered and applied in Langford v Hebran [2001] EWCA Civ 361: [2001] PIQR Q 160.

The judge dealt with the rival arguments in this way. He said:

Having indicated that he would deal with the matter in the light of those observations, later in his judgment the judge stated his findings as to the appropriate calculations on the basis put forward by the claimant. He said at paragraph 38 of his judgment:

The gross future earnings loss calculated upon that basis was £269,532.34.

Upon this appeal Mr Huckle approves and adopts the refusal of the judge to accept the invitation of the defendant to treat the sum for earnings loss based on a police career as a claim for loss of a chance, assessed on the basis set out in the Allied Maples case. He does so because of the basis on which that career model was put before the judge and apparently accepted by him as appropriate. As appears from paragraph 32 of the judgment (see paragraph 14 above) the police career was advanced as a reasonable model for the claimant’s loss of future earnings in the circumstances peculiar to his case. It was not advanced on the basis that it was likely to yield more to the claimant than the general level of earnings of which he was capable and likely to achieve in the future, but simply as the sensible method of putting specific figures upon the injury to his earning capacity. Put another way, it was advanced as typical of, rather than an improvement on, the level of earnings he might reasonably achieve by reason of his record, application, intentions and abilities. This the judge appeared to accept in those passages where he quoted without demur the submissions for the claimant that, if he did not achieve his ambition of joining the police, the likelihood was that he would be similarly remunerated because he was the sort of man to set himself goals and to achieve them. Elsewhere in his judgment the judge had stated that, assuming the claimant was accepted by the police, of which there was a ‘strong likelihood’, he would certainly have become a sergeant within 7 years. He also observed as follows in respect of evidence called from a former colleague of the claimant as to his opportunities to make money abroad as a result of his skills acquired in the SAS:

In those circumstances, submits Mr Huckle, it was not appropriate to calculate the claimant’s future loss of earnings as a police officer upon a ‘loss of chance’ basis. The claimant’s position, unlike the situations dealt with in the ‘loss of chance’ authorities quoted to the judge, was not such that, if he lost the chance to become a police officer, his earning capacity was reduced. In such a case the conventional approach to the calculation of earnings loss, adopted whenever the court is satisfied as to the rate and/or likely level of future earnings (i.e. by application of a multiplier based on the Ogden tables to a selected multiplicand) was appropriate.

That being so, submits Mr Huckle, the judge was in error in discounting the normal (i.e. Ogden) multiplier of 15.54 by as large an amount as 3.84. He points out that this reflected a period of earning capacity of 6 years within the period to age 55 and had the effect of reducing the value of the claimant’s claim for the relevant loss of earnings by as much as 25%. Mr Huckle submits that, given the ability and opportunity of the claimant to earn equivalent money elsewhere, a nominal discount (if any) was appropriate on the basis that he might never have become a policeman at all. Further, such conventional discount for contingencies or the ‘vicissitudes of life’ as is customarily applied should have been far less than 25%.

On this aspect of the appeal, Mr Kilcoyne for the defendants, submits as follows. First, he makes clear that there is no dispute as to the calculation of the value of the potential police career had it been embarked upon, the figures for future earnings, first as a constable then as a sergeant, and for the value of the pension all being accepted. Second, he asserts that the judge erred in law by failing to assess the value of the claimant’s potential police career on the basis of a percentage chance applied so as to reduce the total putative loss by an appropriate amount. He submits that the correct way of reflecting the ‘lack of certainty’ referred to by the judge was by a finding that there was only a 75% chance of the claimant’s pursuing a police career which would have produced the same level of award by a more correct method.

Mr Kilcoyne’s interest in this point is not just academic, however; its significance lies so far as he is concerned in its effect upon the award in respect of the claimant’s lost pension (see further below).

In the particular circumstances of this case, I do not accept Mr Kilcoyne’s strictures as to the method adopted by the judge in relation to the claim for future loss of earnings, though for reasons to which I turn below I would have made a lesser reduction for uncertainty than did the judge.

In any claim for injury to earning capacity based on long-term disability, the task of the court in assessing a fair figure for future earnings loss can only be effected by forming a view as to the most likely future working career (‘the career model’) of the claimant had he not been injured. Where, at the time of the accident, a claimant is in an established job or field of work in which he was likely to have remained but for the accident, the working assumption is that he would have done so and the conventional multiplier/multiplicand method of calculation is adopted, the court taking into account any reasonable prospects of promotion and/or movement to a higher salary scale or into a better remunerated field of work, by adjusting the multiplicand at an appropriate point along the scale of the multiplier. However, if a move of job or change of career at some stage is probable, it need only be allowed for so far as it is likely to increase or decrease the level of the claimant’s earnings at the stage of his career at which it is regarded as likely to happen. If such a move or change is unlikely significantly to affect the future level of earnings, it may be ignored in the multiplicand/multiplier exercise, save that it will generally be appropriate to make a (moderate) discount in the multiplier in respect of contingencies or ‘the vicissitudes of life’.

In the situation of a young claimant who has not yet been in employment at the time of injury but is still in education or has otherwise not embarked on his career, or (as in this case) one who has taken time out from employment in order to acquire a further qualification for a desired change of direction, it may or may not be appropriate to select a specific career model in his chosen field. In this connection the court will have regard to the claimant’s previous performance, expressed intentions and ambitions, the opportunities reasonably open to him and any steps he has already taken to pursue a particular path. In many cases it will not be possible to identify a specific career model and it may be necessary simply to resort to national average earnings figures for persons of the claimant’s ability and qualifications in his likely field(s) of activity. In other cases, however, it may be possible with confidence to select a career model appropriate to be used as the multiplicand for calculating loss. In either case, the purpose and function of the exercise is simply to select an appropriate ‘baseline’ for calculation of the claimant’s probable future earnings whatever his future occupation may in fact turn out to be. Thus if the career model chosen is based upon a specific occupation (such as the police force in this case), the chance or possibility that the claimant will not in the event enter that occupation or, having done so, may leave it, will not be significant if the likelihood is that he will find alternative employment at a similar level of remuneration.

These are truisms so far as the conventional approach to the assessment of injury to earning capacity is concerned. Similarly, it is a truism that the assessment of future loss in this field is in a broad sense the assessment of a chance or, more accurately, a series of chances as to the likely future progress of the claimant in obtaining, retaining or changing his employment, obtaining promotion, or otherwise increasing his remuneration. Nonetheless, such assessment has not traditionally been regarded as necessitating application of the technique of percentage assessment for ‘loss of a chance’ based on the likely actions of third parties, as articulated by Stuart-Smith LJ in the Allied Maples case. In cases such as Doyle v Wallace and Langford v Hebran the court has in special circumstances felt obliged to adopt such a method in order to calculate particular aspects of the claimant’s future loss claim. However, those decisions have not purported generally to replace the traditional method of adjusting the multiplier or multiplicand within the career model appropriate to the particular claimant so as to reflect (a) the likelihood of an increase in earnings at some point in the claimant’s career and (b) those contingencies/vicissitudes in respect of which a discount appears to be appropriate.

The cases in which the percentage ‘loss of a chance’ approach has been adopted appear to me to be those where the chance to be assessed has been the chance that the career of the claimant will take a particular course leading to significantly higher overall earnings than those which it is otherwise reasonable to take as the baseline for calculation. Thus, it was appropriate in Doyle v Wallace to assess on a percentage basis the chance that the claimant might have a remunerative career as a drama teacher rather than the more prosaic baseline activity of clerical or administrative work. Similarly, in Langford v Hebran the same technique was applied to the chance that the appellant might become a highly successful full-time kick-boxing champion, rather than a bricklayer with 5 fights a year at what might be called ‘journeyman level’. In a case where the career model adopted by the judge has been chosen because it is itself the appropriate baseline and/or is one of a number of alternatives likely to give more or less similar results, then it is neither necessary nor appropriate to adopt the percentage chance approach in respect of the possibility that the particular career identified will not be followed after all. That seems to be me to be the position in this case.

On that basis, was the 25% discount applied by the judge to the future earnings loss figure too great as Mr Huckle submits? I consider that it was. By way of preliminary, I would observe that, whereas the judge’s starting point was, rightly, to select of the appropriate multiplier from the Ogden Tables for loss of earnings, that multiplier takes no account of risks other than mortality. Section B of the Explanatory Notes to the Ogden Tables 2002 presents a helpful discussion and guide in relation to the further discount likely to be appropriate for other contingencies/vicissitudes. It makes the point that these contingencies are principally illness and periods of unemployment, but that specific factors in individual cases may necessitate larger reductions. Tables of percentage figures are then set out, based on research conducted for the Institute of Actuaries, under the heading ‘The Basis of Deduction for Contingencies Other Than Mortality’. Table A shows ‘Loss of Earnings to Pension Age 65 (Males) and Table B to Pension Age 60 (Males). The deductions set out are notably low compared with the level of discount traditionally applied over the years.

The ‘Medium’ column in Tables A and B shows the level of discount appropriate to be made if it is anticipated that economic activity is likely to correspond to that in the 1970’s and 1980’s ignoring periods of high and low unemployment. A discount of 2% is shown under Table B for a man aged 35 at date of trial. In the case of the claimant the Pension Age of 55 merits a smaller discount. Under the heading ‘Variations by Occupation’ the point is made that the risks of illness, injury and disability are less for persons in clerical or similar jobs and greater for those in manual jobs such as construction, mining, quarrying and ship-building. However, what matters is the size and nature of the work undertaken by the person in question rather than the industry as such. It is suggested that in more risky occupations the figures given in the tables should be reduced by a maximum of the order of 1% at age 25, 2% at age 40 and 5% at age 55. Taking the Tables as a guide, and treating the police as a ‘more risky’ occupation, the appropriate discount for this claimant would thus be in the order of 3%.

It is perhaps no surprise that the figures based on general research reveal low appropriate discounts when averaged across the board. The observations of Windeyer J in Bresatz v Przibilla (1962) 36 ALJR 212 have for long been quoted but perhaps insufficiently recognised so far as deductions for contingencies are concerned. In this connection he stated:

In relation to a suggestion that it was common practice to subtract 25% ‘for contingencies’ he continued:

I would only add in respect of the last passage quoted that statistics, or at any rate guidance based upon research, are now available in the Notes to the Ogden Tables which demonstrate that so far as the level of any ‘arbitrary’ or generally applied level of discount is concerned, a figure of 25% is a gross departure from that appropriate simply in respect of future illness and unemployment. In order to justify a substantially higher discount by reason of additional future contingencies, there should in my view be tangible reasons relating to the personality or likely future circumstances of the claimant going beyond the purely speculative.

The principal difficulty in approaching this case is to identify the contingencies to which the judge had regard when applying the discount which he did. His reference to the “uncertainties on which I have touched” plainly included the lack of “certainty that the claimant would have been a police officer”. On the other hand, in making his award of special damages based on the claimant’s notional loss of wages as a policeman since 1997 he had made no discount whatsoever. The judge also referred to lack of certainty that the claimant would have been promoted to sergeant. Yet he had earlier expressed himself satisfied that, following a successful application to join the police, the claimant would have attained the rank of sergeant (see paragraph 16 of the judgment), the doubt expressed being whether he would have progressed further to inspector (the possibility of which had been advanced and taken into account in the claimant’s schedule of loss). The other matters to which the judge referred were his suggestions that the claimant might have been disenchanted, or been injured, or have found his police career incompatible with family life.

If and in so far as the judge made any substantial discount for the chance that the claimant would not have become a policeman at all, I consider he was wrong to do so, for the reasons advanced by Mr Huckle. The judge appears to have accepted that the police career model was appropriate on the assumption that, if it was not followed, the claimant (whose abilities and determination he assessed highly) was capable of ‘good earnings’ elsewhere if disappointed in his ambition to become a policeman. He did not put figures upon the ‘good earnings’ which he was satisfied the claimant could have made elsewhere. However, there was good reason to assume that such earnings would be comparable with those earned in the police. As pointed out by Mr Huckle, the claimant’s earnings of £20,000 per annum gross in 1993 updated to the date of trial represented an income of £29,000-odd gross or £21,700 net, as against the net earnings of a police constable at time of trial of £20,009. There was also evidence before the judge from a former TA colleague that there would be work available for the claimant as a security adviser in the oil industry in North Africa at a salary level of around £40,000 per annum tax free, which it appears that the judge accepted (see paragraph 17 above).

On that basis, as it seems to me, and given the assessment by the judge of the claimant’s qualities, there was no reason to adopt a baseline for the claimant’s earnings from an occupation or career outside the police force which was substantially lower than that within it and it is clear that the judge did not do so. There was thus no proper basis for a discount to be applied simply because of the risk that the claimant would not become a policeman in the first place.

So far as concerns any element of discount which the judge applied in respect of possible non-promotion to sergeant, the appropriateness of such discount is again in question, given the firm finding of the judge that such promotion would have been obtained within 7 years. The doubts which he expressed as to the claimant’s promotion prospects were related to promotion beyond the position of sergeant. Even if some discount were appropriate it should not have been substantial given that, on the undisputed figures, such promotion would only have involved a salary increment of around 10%.

That leaves the ‘contingencies’ of injury, disenchantment, and incompatibility with family life. Plainly, while a policeman remains active upon the beat, rather than employed in the police station or behind a desk, his occupation involves the possibility of injury in the course of law enforcement. However, there was no evidence before the judge, nor am I aware of statistics, which indicate that the risk of injury leading to loss of employment in the police is any higher than in the band of more active or hazardous occupations referred to in the notes to the Ogden Tables above. While the chance of injury was clearly one of the range of considerations to be taken into account, it would only be so if the injury was sufficiently disabling to require the claimant to retire from the force (rather than be ‘off sick’) and, in this respect, there is no reason to suppose that the figures applicable to policemen are out of line with those in the band of more hazardous occupations mentioned.

So far as disenchantment and the strains of family life are concerned, while undoubtedly these are possibilities which could lead to an early exit from the police force, they were entirely speculative and there were no general statistics before the judge or particular reasons in relation to the claimant which indicated that a substantial discount was called for in this regard. Finally, the fact remains that, in relation to all the contingencies mentioned save injury, the claimant was a man whom the judge found well capable and adapted to finding another door to open if the first door closed against him.

Thus, upon analysis, the justification for a discount for contingencies substantially in excess of the figure to be obtained from the Notes to the Ogden Tables is not apparent. While I recognise that this court should be hesitant about interfering with a discount considered appropriate by the trial judge, I am concerned from the form of the judgment that, in concentrating upon the question of the inevitable lack of certainty (as opposed to high probability) in the police career model and the assumed need for a discount in this regard, the judge overlooked the effect of the evidence as to the claimant’s earning capacity elsewhere which he had apparently accepted and which meant that, if the police model were abandoned or interrupted, damage in the form of earnings loss would at best be slight, and thus that the judge’s reduction of the appropriate multiplier by 25% unjustly diminished the claim. The Tables in the Notes to the Ogden Tables make plain that on an ‘average’ basis the discount appropriate to be allowed for the possibility that illness and unemployment will interrupt a claimant’s earning career is a small one as compared with levels which have been traditionally applied. In my view that is a matter which should be borne in mind by judges when considering the level of discount to be made for contingencies generally. In this case, the contingencies over and above illness and unemployment which were anticipated by the judge were not said to be based on any particular feature of the claimant’s character or a higher ‘drop-out’ rate from the police force than any other occupation. There was thus no apparent reason for a reduction in the assessment of the claimant’s future earnings of anything like 25%. In my view a figure of no more than 10% would have been appropriate. However, working on a broad brush basis I would reduce the multiplier from 15.54 to 14 years (rather than 11.7). This has the effect of increasing the judge’s award for future earnings loss by 2.3 x £23,608.99 i.e. £54,300.

When dealing with the question of the claimant’s residual earning capacity to be set against his future loss of earnings claim to age 55 on retirement from the police, the judge accepted medical evidence that it would be reasonable to suppose that the claimant would achieve a residual earnings capacity within a year from the date of judgment. The full multiplier for the period to age 55 was 15.54. That required immediate reduction of 1 to allow for the delay of one year in the start of earnings. Thus the net full multiplier was 14.54. The judge discounted that figure down to 12 on the basis of the claimant’s disability. Mr Huckle submits that that was an insufficient discount bearing in mind the degree of the claimant’s disablement. It was the unchallenged evidence of the claimant’s employment consultant Mr Pask that it was “always possible” that the claimant’s physical and mental difficulties would form a barrier to his becoming permanently employed in reasonably well paid employment. He observed that statistics from the Labour Force Survey, from which he quoted extracts suggested that people with problems like the claimant’s were likely to be economically inactive or unemployed and when unemployed to be so for a considerable time. In the conclusion to his final report Mr Pask observed that, since his injury, the claimant had been employed in temporary administrative work using his general skills and academic background being currently in a short-term training job using his sporting and military experience. He stated that while he might be able to find further administrative jobs he might take some time to establish himself in a permanent post and set out what he believed to be the claimant’s residual earnings potential. He added finally that the claimant would, however, remain more vulnerable than he would have done as a police officer. The reference to the psychological state of the claimant was a reference to the agreed medical evidence that:

Mr Huckle submits that as a formerly extremely fit and physically-orientated ‘outdoor type’, the difficulties the claimant had experienced in motivation for the kind of clerical and administrative work which he could now expect to obtain were bound to continue. Mr Huckle submits that in the circumstances the multiplier for the residual earning capacity should have been substantially further discounted from the full working life multiplier and suggests an appropriate net multiplier of 8.

Mr Kilcoyne however supports the figure adopted by the judge. He submits that the matter was peculiarly one for the judge to form having seen the claimant give evidence at length and having had an opportunity of assessing his qualities and resolution favourably in the way which he did. He submits that an alternative method of dealing with the claimant’s difficulties and vulnerability in the labour market would have been to make a very substantial Smith v Manchester award. On that basis he points out that the deduction of the appropriate multiplier, even when the ‘delayed start’ of 12 months is taken into account equates to an award of almost £30,000 (2.54 x £11,500 = £29,210). I accept the submissions of Mr Kilcoyne in this respect and see no good reason to disturb the judge’s award under this head.

The evidence before the judge was to the effect that, on a broad assessment, a police sergeant retiring at age 55 would have earning capacity of around half his level of pay at retirement which would be a basic £31,590 gross without allowance for overtime and that ex-military personnel with the right skills could find lucrative posts in the oil and communications industry provided they remained fit. The judge held that the position was necessarily speculative and that there was no sufficient evidence that the claimant’s earnings post-retirement would be more than the judge’s assessment of his current residual earning capacity, which the judge deemed to continue to age 65.

Mr Huckle criticises this finding on the basis that there was unchallenged evidence before the judge from the employment expert Mr Pask based on the DfEE Research Report RR133 ‘Earning and Employment Opportunities for Disabled People’ that pay for disabled males of all ages is 21% below that for their able-bodied counterparts. He also submits that common sense itself dictates that the earning capacity of an able-bodied 55-year old on retirement from the police must be greater than that of a person of the same age with a disability which precludes any possibility of other than a sedentary job in particular conditions. Further it is inevitable that such a person must be handicapped in the labour market, presenting a far less impressive appearance and history at interview to a prospective employer than an able-bodied former policeman of the claimant’s accepted drive and fitness. In particular, security or other active work of the kind for which policemen may be peculiarly fitted on retirement would be precluded. Mr Huckle submits that rather than treating the matter as too speculative to be the subject of any compensatory award, the position was classically one deserving of a modest award in respect of a real risk of handicap in the labour market on Smith v Manchester principles. I am bound to say that I am in agreement with that submission and would make an additional award to the claimant of £5,000 under that head.

Under a respondent’s notice, Mr Kilcoyne, following the logic of his argument in relation to future earnings loss (see paragraph 20 above) submitted that the judge should have reduced the figure of £50,000 for pension loss to a figure of £37,500 on the basis of a 75% recovery. However, in the course of the appeal, it became apparent by reference to the claimant’s schedule of loss at trial (as to the arithmetic of which there was no argument) that the judge’s figure of £50,000 involved a discount of almost precisely 25% from the figure of £66,601.96 put forward as the total pension loss at today’s values on the assumption that the claimant retired from the police with the rank of sergeant. Mr Kilcoyne therefore did not press the point further and this aspect of the judge’s award remains intact.

I would allow this appeal and increase the judge’s award in respect of future earnings loss by a total of £59,300 (see under paragraphs 38 and 43 above).

I agree.

I also agree.