Herring v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,Lord Justice Tuckey,Mr Justice Wall |
| Judgment Date | 10 April 2003 |
| Neutral Citation | [2003] EWCA Civ 528 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2002/1823 |
| Date | 10 April 2003 |
[2003] EWCA Civ 528
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF DISTRICT REGISTRY
(His Honour Judge Masterman)
Lord Justice Potter
Lord Justice Tuckey and
Mr Justice Wall
Case No: B3/2002/1823
Mr T Huckle (instructed by Hugh James) for the appellant
Mr Paul Kilcoyne (instructed by Treasury Solicitors) for the respondent
Introduction
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 Basis of the Damages awarded
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:
"15. I find, to the extent of virtual certainty, that when the time was right the Claimant would have applied to the police. That could not have been before June 1996. Depending on recruitment opportunities at the time, I believe he would have applied fairly soon after that but undoubtedly waiting until he had completed his degree in 1997, had he embarked on that in 1995. The probability is therefore that he would have applied by autumn 1997 at the age of 30.
16. I further find, on a wealth of evidence, that there is a strong likelihood that his application would have been successful. How far he would then have progressed is inevitably less certain although my impression of the Claimant, shared by Mr Pask and Mr Ames [who were employment experts], is that his expectation could not reasonably run higher than attaining the rank of Sergeant, which I find he would have attained within 7 years. Of course one cannot entirely rule out the possibility that he might have gone further, but on statistical grounds, as well as considering his academic background and all the information about him, and my assessment of his character and personality, I think that progress beyond Sergeant is too speculative and therefore sufficiently unlikely not to call for evaluation in percentage terms."
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.
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:
"32. As for the basis for assessing the Claimant's future loss, Mr Huckle recognised that there cannot be certainty that the Claimant would have joined the police but he submitted that if that is a strong probability, effect should be given to it in the following way. Firstly, that the police career is a reasonable model for the loss of career earnings which the Claimant has suffered. If the aim is to put the Claimant so far as possible into the position he would have been but for the accident, then the police career is a reasonable basis for compensation. Secondly, he points out that if, for example, there is a 75% likelihood of joining the police, then there is a corresponding 25% likelihood of some other career in the alternative, which might be similarly remunerated. So one way or the other, he submits, the Claimant should be assessed as losing career earnings in that bracket because he was the sort of man to set himself goals and then to achieve them. He had demonstrated that when he had wanted to become a life guard, when he wanted to qualify as a sports coach, when he wanted to get into an elite branch of the TA and when he wanted to gain an HND, he was able to achieve all of these. He might well have gone on to obtain a law degree. Furthermore, former colleagues had gone on to achieve good earnings so why not the Claimant?
33. Mr Huckle therefore submitted that the Claimant should be compensated as if he would have become a police officer and that this case is not about the loss of a chance."
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:
"34. … The authorities show that provided a chance is substantial, rather than a speculative one, a Claimant will receive compensation even if he cannot show that it is more probable than not that the chance would have fallen in his favour. That plainly does justice to a Claimant who would otherwise received nothing because he could not show a loss on the balance of probabilities. Does that still apply where the Claimant can show a loss on the balance of probabilities, more so if there is a strong likelihood?
35. This seems to me to be a common enough situation. An employee is injured in the course of his employment. His loss is based on the probability that he would have continued to work for that employer or in that industry or profession but it ignores the fact that the...
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