Description
The Claimant, a former Lance Corporal in the Royal Logistics Corps, sustained a non-freezing cold injury to his feet whilst on military exercise in February 2009. As a result of the injury, his feet were permanently sensitised to the effects of cold weather. His personal injury claim against the MOD included a substantial future loss of earnings' claim. The Defendant admitted liability on a 75:25 apportionment basis, and proceedings were heard before Andrew Edis QC (as he then was; now Edis J) sitting as a High Court Judge in July 2014.
The Claimant left the Army in October 2011. He claimed in part that this was because of the injury which had allegedly damaged his military career prospects. Within a week of his departure, he started civilian employment as an HGV driver.
Principally, the Claimant contended that but for the injury he would have remained in the Army until retirement. In the alternative, he sought an award of damages to reflect the impact of his residual disability (the permanent sensitivity of his feet to the effects of cold weather) on his capacity in the civilian labour market, which it was submitted, should be assessed either using the reduction factors (RFs) from Tables A and B of Ogden 7, or on the traditional Smith v Manchester [1993] PIQR basis.
Andrew Edis QC rejected the Claimant's principal argument on future loss of earnings, holding that it could not be established on the balance of probabilities that but for the injury he would have remained in the Army. However, he accepted that owing to the impact of his minor physical impairment on the choices of jobs available to him, the Claimant was entitled to award of damages to reflect the potential difficulty of finding alternative work in the event of future unemployment. The material question was how such an award should be assessed.
It was held that an award of damages on a lump sum basis was inappropriate given that the Claimant would have moved into the transport/logistics industry in the absence of his injury, and that as he met the test for disability under Ogden 7, his award of damages should be assessed using the RFs from Tables A and B. In arriving at this conclusion, the Judge highlighted that there was no statutory obligation to apply Tables A and B in a particular way (paragraph 44) and that the Court could depart from a mechanistic application of the Tables in appropriate cases (paragraph 47). Broad reference was made in the Judgment to the commentary of Dr Victoria Wass, an actuary and member of the Ogden 7 Working Party.
The significant feature of the Claimant's case was that while he could be medically classified as disabled, he was, at the time of leaving the Army medically fully deployable. The Judge considered "it hard to conceive of very many people who could be classified as "disabled" who are as fit and able as the Claimant....[When he left the Army] he could be deployed anywhere in the world to do anything".
Accordingly, the Judge held that the relevant Ogden RF should be adjusted to reflect the minor effects of the Claimant's residual disability as presented in his expert medical and employment evidence. At paragraph 59, he stated that "If I apply the RFs without deduction, he will clearly be one of those whose award will be wrong, because he will be compensated as any other disabled person would be compensated when in reality his disability is, by the standards of disability quite minor. His condition qualifies as a disability under the test I have applied, but only just".
In view of this, the Judge adjusted the RF by taking the mid-point figure between the not-disabled RF from Table A and the disabled RF from Table B. He stated at paragraph 61, in respect of reaching this conclusion that:
"There is little logic in this approach, except that it gives a figure which appears to me to fully reflect the loss sustained by the Claimant, but to do so in a way which does not obviously overstate that loss. A judicial approach to the assessment of damages involves an exercise of judgment in the individual case being considered. Sometimes statistics give an answer which appears obviously too high, given the picture which emerges in the particular case. Where that happens, the Judge has to make an apparently arbitrary adjustment to that result, or to decline to use the statistical material at all. It appears to me that it is preferable to make some use of the Tables and thus to give weight to the data from which they are derived. This means that the Tables have resulted in a higher award than the traditional approach".
