Brown v Ministry of Defence

This is the judgment of the court.

The matter comes before us by way of an appeal with the permission of this court against the order of His Honour John Townend sitting as a Deputy Circuit Judge in the Lancaster County Court. By his order the judge allowed in part an appeal against the order of District Judge James made on a disposal hearing in the Carlisle County Court at which he assessed the damages payable to the claimant in respect of injuries she sustained while undergoing basic military training.

The claimant, Jennifer Brown, comes from an Army family. Her father served for a full term of 22 years leaving with the rank of Staff Sergeant and her sister enlisted a few years before the events which gave rise to these proceedings. Although she had the Army in mind as a career from quite an early age, on leaving school Miss Brown took a job with Cumbria County Council for whom she worked for several years, during which time she also studied to obtain additional academic qualifications. It was not until September 1997, when she was 24 years of age, that she felt she was ready to take the important step of committing herself to a life in the forces. She obtained strong personal references in support of her application and did very well in the examination that all prospective recruits are obliged to take. As a result she was accepted and formally enlisted in February 1998.

Unfortunately, Miss Brown’s hopes were soon to be dashed. Eight weeks into her service she suffered a serious fracture of her left ankle in the course of basic training. Although she did her best to regain her fitness, it became clear that she would be unable to complete her training and she was eventually discharged on 16^th October 1999. After a period of convalescence and a variety of temporary jobs she began training as a physiotherapist in September 2003.

In April 2001 Miss Brown began proceedings against the Ministry of Defence claiming damages for personal injury resulting from its negligent failure properly to manage and supervise her training. She claimed among other things compensation for loss of pension rights in the sum of £148,856.31 calculated on the assumption that she would have remained in the Army for the full service term of 22 years that would have qualified her for an immediate pension, compensation for disadvantage in the labour market in the sum of £107,028 and compensation for loss of congenial employment in the sum of £12,000.

The defendant admitted liability but contested the amount of her claim. In particular it argued that since at the time of her enlistment the average length of service of female recruits was a little over 6 years, a claim for loss of pension rights based on 22 years’ service could not be sustained. It contested her claims for compensation for disadvantage in the labour market and for loss of congenial employment in their entirety.

In May 2004 the matter came before District Judge James on a disposal hearing for the assessment of damages. The only witnesses to give evidence in person at that hearing were the orthopaedic surgeons called by the parties to give evidence about the injury Miss Brown had sustained and the likelihood of osteoarthritis affecting her ankle in the future. However, the District Judge also had before him written statements from other witnesses in support of the parties’ cases.

The District Judge was very impressed by Miss Brown’s commitment to the Army and the level of her determination to make it her long term career. He was confident that she would have remained in service for the full 22 years and would have reached the rank of Staff Sergeant. He expressed his conclusion in this way:

On the basis of those findings the parties were able to agree that Miss Brown was entitled to receive damages of £144,119.34 in respect of her loss of pension rights. As far as her claim for disadvantage in the labour market was concerned, the District Judge accepted that towards the end of her working career as a physiotherapist it might become necessary for her to move, as he put it, from the physical aspects of the work to a more sedentary based environment and that in those circumstances she was likely to suffer some loss of earnings. He awarded her £18,383, being one year’s earnings based on her loss of earnings in the Army, there being no evidence before him of the earnings of physiotherapists. He awarded her £10,000 in respect of loss of congenial employment.

The District Judge gave the Ministry permission to appeal against his award and in May 2005 the matter came before His Honour John Townend sitting as a Deputy Circuit Judge at Lancaster. He was similarly impressed with Miss Brown’s determination to make a career in the Army and he too was satisfied that she would have served for the full period of 22 years. He said this:

When considering the rank that Miss Brown would have achieved he made the following finding in paragraph 26:

On the basis of those findings the judge varied the order of the District Judge so as to award Miss Brown damages for the loss of the full pension entitlement on the basis that she would have left the Army after 22 years’ service having attained the rank of Staff Sergeant. He upheld the District Judge’s award of £10,000 in respect of loss of congenial employment, but he set aside the award in respect of disadvantage in the labour market because he found no evidence that if osteoarthritis were to develop Miss Brown would be likely to find herself on the labour market. Accordingly, he was of the view that an award under this head could not be sustained.

The matter comes to this court by way of a second appeal. The court gave the defendant permission to appeal against the judge’s decision in relation to the loss of pension rights because it was doubtful whether he had applied the correct test and because it considered that there was a compelling reason to do so in view of the amount of money involved. At the hearing itself we gave Miss Brown permission to cross-appeal in relation to the chance of promotion to the rank of WO1 and of suffering a disadvantage in the labour market in the future.

The primary issue in relation to the claim for loss of pension rights is the assessment of the lost period of service. This is of particular importance in the present case because if Miss Brown had completed 22 years of service she would have become entitled to a pension on discharge payable immediately, rather than at the age of 60. The difference between the value of a pension payable (in her case) at the age of 46 and one payable at the age of 60 is obviously substantial.

The District Judge began his consideration of the claim for special damages by referring to three decisions of this court, Doyle v Wallace [1998] P.I.Q.R. Q146, Langford v Hebran[2001] EWCA Civ 361 [2001] P.I.Q.R. Q160 and Herring v Ministry of Defence[2003] EWCA Civ 528, [2004] 1 All E.R. 44. He expressed the view that his task was not made easier by the wide divergence of mechanisms for assessing damages for loss of future earnings that appeared to have been endorsed by the court. In the end, however, he considered that Herring v Ministry of Defence provided the most suitable guidance in this particular case, possibly because of the similarities between her situation and that of the claimant in that case, although he did not say so expressly. Having considered the evidence, he reached the conclusion that Miss Brown would have served a full 22 years in the Army and awarded her damages for loss of pension rights on that basis. When giving the defendant permission to appeal he referred to “the differing opinions of the Court of Appeal as to how such [loss of pension] should be calculated”.

The Deputy Circuit Judge also considered that Herring v Ministry of Defence was the appropriate decision to apply in this case. He did not refer to any conflict between the authorities, although he expressed himself in such a way as to suggest that he was not altogether unsympathetic to the District Judge’s view that the reported cases were difficult to reconcile. Having considered the matter afresh, he reached the conclusion that Miss Brown would probably have served a full term and awarded her damages based on a loss of full pension rights.

Mr. Roussak submitted that the District Judge and the Deputy Circuit Judge both went wrong in this case because they failed to apply the fundamental principle that when dealing with events that may happen in the future, or which might have happened, whether in the future or the past, if circumstances had not intervened to prevent them, the court cannot decide the matter on a simple balance of probabilities but must assess the chances of their happening. The classic statements of this principle are to be found in the speeches of Lord Diplock in Mallet v McMonagle[1970] A.C. 166, 176 and of Lord Reid in Davies v Taylor[1974] A.C. 207, 212H-213A. Lord Diplock put the matter in this way:

Lord Reid said at pages 212H-213A

In our view Mr. Roussak’s criticisms of the decisions below are well-founded. The District Judge dealt with the matter succinctly in the manner we have already described. He considered it to be an “inevitable conclusion” that Miss Brown would have served for the full period of 22 years, applying, as he understood it, the approach of this court in Herring v Ministry of Defence. However, it is not at all clear that he had in mind the principle in Davies v Taylor or that he intended to find that there was no significant chance that she would not have served for a full term. The way in which the Deputy Circuit Judge expressed himself in paragraphs 24 and 26 of his judgment makes it clear that he was quite consciously making findings about the way in which Miss Brown’s military career would have developed by reference to the balance of probabilities, rather than by assessing the chances of its developing in one way rather than another. The effect of his doing so was to assess the chances of her serving for 22 years and of attaining the rank of Staff Sergeant at 100% in each case.

Mr. Hinchliffe Q.C. submitted that, although the Deputy Circuit Judge may have expressed himself infelicitously, in the light of the judgment as a whole he should be understood as having found that the chances of Miss Brown’s serving for less than the full 22 years and of not reaching the rank of Staff Sergeant were in each case so insignificant that they could be wholly discounted. If he or the District Judge had explicitly approached the matter in that way, it would have been necessary to consider whether this court could properly interfere with such a finding having regard to the evidence before them, but we are satisfied that in reaching his conclusion neither of them in fact took proper account of the principle in Davies v Taylor. One reason for that appears to have been a degree of misunderstanding about the effect of the decisions to which we referred earlier, in particular the decision in Herring v Ministry of Defence.

In that case the claimant had suffered serious injury in a parachuting accident which deprived him of the opportunity of pursuing his chosen career in the police force. The judge found “to the extent of virtual certainty” that he would have applied to join the police when the time was right, probably when he was aged 30, and that there was a strong likelihood that his application would have been successful. The judge thought it likely that he would have been promoted to the rank of sergeant within seven years, but that his chances of promotion beyond that were too speculative to call for evaluation. On that basis he calculated the claimant’s loss of future earnings on the basis that he would have become a police officer and would have risen to the rank of sergeant, using the appropriate multiplier from the Ogden tables, but he then made a reduction of 25% for the chances of his not being accepted in to the police force and of leaving before he had completed a full term of service. He awarded the claimant a sum in respect of the loss of the pension to which he would have been entitled immediately on retirement from the police force at the age of 55 calculated on a similar basis, that is, on a full valuation subject to a reduction of 25%.

In this court Potter L.J., with whom Tuckey and Wall LJJ. agreed, held that when assessing the claimant’s loss of future earnings the judge was wrong to make a reduction for the chances of his not being accepted into the police force or of leaving before he reached the age of 55. He pointed out that in order to assess loss of future earnings it is necessary in most cases to adopt what he called a “career model” for the claimant in question which fairly reflects his earning capability. In many cases that will be the job in which the claimant is currently employed since it can usually be inferred that he would have continued in the same or similar employment. The chances of promotion can then be taken into account by adjusting the multiplicand at appropriate points along the multiplier. In a case where the claimant has yet to enter employment, it is necessary to adopt a career model by reference to his abilities and reasonable aspirations. That may not be an easy task, but provided the career model that is selected does fairly reflect the claimant’s earning capability, the chances of his actually obtaining the particular form of employment used as the model or of his leaving it before the normal retirement age will usually be irrelevant, since it can be assumed that, if he does so, he will take up some alternative employment at a broadly comparable rate of pay. The chances of a career change need only be separately assessed if it is one that would significantly alter his earning capability one way or the other. That is the explanation for the decisions in Doyle v Wallace and Langford v Hebran, in each of which the court had to consider the chance that the claimant’s career would take an unusual turn that would have significantly affected the amount that he or she could otherwise have been expected to earn.

The judge’s award in respect of loss of pension rights in Herring v Ministry of Defence received rather less attention in this court, but the outcome is of interest in the context of the present case. The judge had adopted the same approach to this head of claim, again reducing the award by 25% to reflect the chance that the claimant would not enter the police force at all or, if he did, that he might not remain for a full period of service. As in the case of members of the armed services, completion of a full term of service would have had a marked effect on the value of the claimant’s pension rights because he would have been entitled to receive his pension immediately. That was an unusual factor which called for specific evaluation, but since the judge had already discounted his award for loss of pension rights for the reasons mentioned earlier, it was accepted that the award did not call for further adjustment.

It can be seen from this that the decision in Herring v Ministry of Defence is not in any sense inconsistent with the principle in Davies v Taylor which continues to be of general application. Nor is there any inconsistency between the decisions in Doyle v Wallace, Langford v Hebran and Herring v Ministry of Defence, each of which simply provides an example of the application of the same principles to different factual situations. In each case the court was seeking to assess by the most appropriate means having regard to the particular circumstances of the case the chances that the claimant would have enjoyed a particular level of economic benefits had his or her working career not been interrupted or prevented by the injury in question. The most appropriate way of making that assessment may vary from case to case, but the underlying principles remain the same. Provided a fair career model is chosen as the basis for the assessment of loss of future earnings and pension entitlement, the prospects of enhanced or reduced earnings resulting from the ordinary chances of life can be allowed for by adjustments to the multiplicand and multiplier as appropriate. It is only when the court has to consider the possible effects of an unusual turn of events that would have a significant effect on earnings or pension rights that it is necessary to assess the chances of such events occurring and to assess their financial consequences. Thus in Doyle v Wallace the court had to assess the chances of the claimant’s having a well-paid career as a drama teacher and in Langford v Hebran it was necessary to assess the claimant’s chances of becoming a highly successful professional sportsman. In each case the development in question would have had a significant effect on the claimant’s earning capability. These decisions were both cited with approval in Gregg v Scott[2005] A.C. 176 as examples of the application of the principle in Davies v Taylor.

Both the District Judge and the Deputy Circuit Judge appear to have understood Herring v Ministry of Defence to be authority for the proposition that since it was more likely than not that the claimant in that case would have become a policeman, it was appropriate to assess damages on that basis generally without making any allowance for any special factors. As a result they were led into thinking that if Miss Brown was more likely than not to remain in the Army for 22 years, her loss of future earnings and pension should be assessed without needing to make any separate assessment (in the case of her loss of pension rights) of her chances of serving for the full 22 years that would qualify her for an immediate pension.

Since Miss Brown had chosen a career in the Army, that can properly be taken to provide a fair reflection of her earning capability. Accordingly, for the reasons explained in Herring v Ministry of Defence, it was right to adopt that as the basis for assessing loss of future earnings without making any reduction for the chances of her failing to complete a full term of service. The chances of promotion to Staff Sergeant could for that purpose be adequately reflected by an adjustment to the multiplicand at an appropriate point. In fact, however, since Miss Brown was able to obtain a comparable income as a physiotherapist, loss of future earnings did not represent a large part of her claim.

The position in relation to the loss of pension rights was different, however, because, as in the case of the claimant in Herring v Ministry of Defence, if she left after serving a full term of 22 years she would have become entitled to an immediate pension instead of having to wait until the age of 60. That was an unusual factor which would have had a significant effect on the value of her pension rights. The chances of her completing 22 years’ service therefore called for assessment in accordance with the principle in Davies v Taylor. The evidence of promotion patterns among female recruits does not suggest that promotion beyond the rank of Staff Sergeant is sufficiently common to be reflected in an adjustment to the multiplicand. In our view, therefore, both of the judges below were right to assess it separately.

Since both judges failed to apply the correct principles to the assessment of Miss Brown’s claim for loss of pension rights, it is necessary to consider the matter afresh. Mr. Roussak was prepared to accept that Miss Brown would have served for the average period of 6 years and 1 month, but he submitted that without some clear evidential basis for doing so the court could not find that there was any significant chance that she would have served for any longer period. Mr. Hinchliffe submitted that there was plenty of evidence to support the conclusion that she would have served much longer, probably even for a full term.

In our view to find that Miss Brown would not have served beyond the average period of 6 years and 1 month would not do justice to her enthusiasm, determination and ability, all of which are well demonstrated by the evidence, or to the fact that her decision to join the Army was a mature one taken after some years of employment in civilian life. In the light of that evidence we are satisfied that there are certainly good grounds for thinking that she would be likely to have served for longer than average. On the other hand, since there is also evidence to suggest that many of those who remain in service for several years do not complete the full term of 22 years, we are unable to accept that the chances of her leaving within that period were negligible. No doubt the incentives to remain in or leave the services, as the case may be, vary continuously over the years, but it would be unnecessarily complicated and inappropriate to assess the chances of her continuing in service year by year throughout the remainder of the 22 year term which is critical for pension purposes. We think Mr. Roussak was right in suggesting that the position can fairly be determined by reference to three periods which the statistics suggest reflect two common points of departure, namely, at the end of 6 years’ and 12 years’ service respectively.

Having regard to the evidence of her enthusiasm and commitment, we think that the chances that Miss Brown would have left the Army of her own volition after only 6 years’ service are negligible. After that the position becomes more difficult to assess because over the next few years other factors might well have begun to play a more important part in her thinking. The period between the ages of 30 and 36 is one that could well see significant changes in her personal and family situation of a kind that could have a profound effect on her approach to continuing a full-time military career. In our view the chances of her completing 12 years’ service cannot be put at higher than 50%. The next ten years are even more difficult to assess, partly because they lie farther in the future, but as she began to approach the end of her 22 years’ service the incentive to complete them would obviously increase. Taking everything into consideration we would assess the chances of her completing that further period of 10 years at 60%. On that basis we would assess the chances of her obtaining the additional benefit represented by the right to an immediate pension on completing 22 years’ service at 30%.

As far as promotion is concerned, Miss Brown certainly scored well on her entrance examination, but the reports on her early training do not suggest that her potential was markedly above average. Mr. Roussak did not challenge the conclusion that she would have reached the rank of Staff Sergeant and in our view the fairest course is to assume that she would have achieved promotion to that rank after the average period of service at which that is achieved, namely 14 years and 6 months.

The District Judge was of the view that Miss Brown had a 30% chance of further promotion to WO1, but on appeal the Deputy Circuit Judge reversed his finding on the grounds that there was insufficient evidence to enable him to make a sensible assessment of any kind. On a matter of this kind the court is inevitably in some difficulty. It is particularly difficult at the outset of a person’s career in whatever walk of life to make an informed assessment of his or her likely progress over a period of twenty years because chance and personal development each play a large part. In our view there is a more than negligible chance that Miss Brown would have risen to the rank of WO1 if she had remained in the Army for 22 years, but we do not think there was sufficient evidence before the District Judge to support an assessment as high as 30%. In our view the highest it can be put is 15%.

On previous occasions the parties have been able to calculate with the help of their expert advisers the correct amount of the award based on the court’s findings. We are confident that they will be able to do so on this occasion as well, but we think it may be of assistance to the parties if we set out, in a little more detail, the method which we would expect them and their advisers to adopt in calculating the amount to be paid in respect of this claim.

There are, in our view, three factors to be taken into account in calculating the claim for loss of pension rights: (i) the right to what may be described as the ‘normal’ pension, payable at age 60 in the event of retirement before completing the full 22 years’ service; (ii) the right to an ‘accelerated’ pension, payable immediately on retirement in the event of completing 22 years’ service; and (iii) the rank and actual years of service on retirement. It would, no doubt, be possible to construct a sophisticated model which took account of each of those factors as the period of service increased year by year; and to make a calculation based on the aggregation of each incremental increase, discounted to reflect the statistical probability of the claimant’s actual retirement date falling within each successive year, but that would be an unnecessarily complex exercise in the circumstances of this case. A fair evaluation can be achieved by a more simple calculation based on the three periods which reflect the two most common points of departure, namely, (i) the first six years’ service, (ii) the next six years’ service and (iii) the final ten (or more) years of service.

The effect of our assessment of the probability that the claimant would have remained in service in respect of each of those three periods is that the value to be attributed to the claimant’s lost pension rights is the aggregate of (i) 100% of the value of the pension rights to which she would have been entitled if she had retired at the end of six years’ service, (ii) 50% of the additional value of the rights to which she would have been entitled if she had retired at the end of twelve years’ service and (iii) 30% of the further additional value of the rights to which she would have been entitled if she had retired at the end of a full 22 years’ service. In calculating the first two elements the rights are to a ‘normal’ pension payable at age 60; in calculating the third element the right is to an ‘accelerated’ pension payable immediately on retirement.

In respect of each of those elements the value of the pension rights should be calculated on the basis of the rank which the claimant would have reached had she remained in service until the postulated retirement date. We doubt whether that will give rise to any difficulty in relation to retirement after six or twelve years’ service. As indicated earlier, we think that the fairest course is to assume that the claimant would not have reached the rank of Staff Sergeant within twelve years, but that she would have done so if she had remained in service thereafter. The starting point, therefore, for the calculation of the third element is that the claimant would have retired as a Staff Sergeant.

However, that does not give recognition to the possibility that, had the claimant remained in service for the full 22 years, she would have been promoted to warrant officer and, perhaps, would have achieved the rank of WO1. To take account of that possibility there should be an uplift in the calculation of the third element by increasing the value of the pension rights to which the claimant would have been entitled if she had retired in the rank of Staff Sergeant by an amount equal to 15% of the additional value of the rights to which she would have been entitled if she had retired in the rank of WO1.

We are conscious that, although we were invited to assess damages ourselves (if we allowed the appeal) rather than remitting that matter for further consideration in the County Court, we received little assistance in argument as to the basis upon which that assessment should be made. We have set out the method which in our view the parties should adopt in giving effect to our decision, but we will permit the parties to make further representations on that approach and on the form of the order which the court should make if they think it necessary to do so.

The Deputy Circuit Judge allowed the defendant’s appeal against the District Judge’s award under this head on the grounds that there was no evidence to support his finding that there was a significant chance that Miss Brown would suffer a handicap in the labour market at some time in the future as a result of the deterioration of her injured ankle. There was, as the judge himself acknowledged, evidence before the District Judge that there was a 25% chance of osteoarthritis developing to such an extent as to require her to undertake a more sedentary type of work. However, in the absence of evidence of career patterns among physiotherapists he did not accept that there was a significant chance that she would in fact find herself on the labour market competing for a job.

In the light of the medical evidence we think there was sufficient material before the District Judge to enable him to find that there was a more than insignificant risk that Miss Brown would develop osteoarthritis in her injured ankle of sufficient severity to force her to give up practice as an active physiotherapist and require her to accept a more sedentary type of employment. If that happens she could well find herself looking for a new job in about twenty-five years’ time when she will be in her early fifties and would be likely to suffer some degree of disadvantage in comparison with those whose capabilities are not limited in the same way. However, in common with the Deputy Circuit Judge we find it difficult to accept that the District Judge’s assessment of her loss can be sustained. He awarded her £18,383 which was one full year’s pay at the current Army rate. Something approaching four months’ earnings is in our view all that is appropriate in this case where the degree of disadvantage is unlikely to be very great. We would therefore restore the award, but reduce it to £5,000.

For these reasons the appeal and the cross-appeal will be allowed to the extent indicated in each case.