Loss of Earnings in UK Law

In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded.

How should living expenses be assessed and deducted in such a case? It is a simpler, more realistic, calculation and accords more closely with the general principle of the law that the courts in assessing compensation for loss are not concerned either with how the plaintiff would have used the moneys lost or how she (or he) will use the compensation received.

The principle must be that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. As such, it must be shown, on the facts found, to be at least capable of being estimated. If sufficient facts are established to enable the court to avoid the fancies of speculation, even though not enabling it to reach mathematical certainty, the court must make the best estimate it can.

If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants.

The judgments, further, bring out an important ingredient, which I would accept, namely that the amount to be recovered in respect of earnings in the "lost" years should be after deduction of an estimated sum to represent the victim's probable living expenses during those years. I think that this is right because the basis, in principle, for recovery lies in the interest which he has in making provision for dependants and others, and this he would do out of his surplus.

Damages for the loss of earnings during the "lost years" should be assessed justly and with moderation. There can be no question of these damages being fixed at any conventional figure because damages for pecuniary loss, unlike damages for pain and suffering, can be naturally measured in money. In such a case, the lost earnings are so unpredictable and speculative that only a minimal sum could properly be awarded.

It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity isawarded as part of general damages. He will have diminished earning capacity, but he has not lost any future earnings.