Robert Clelland v. (1) Department for Business, Enterprise and Regulatory Reform & (2) The Scottish Coal (Deep Mine) Company Limited (in liquidation) [2011] CSOH 46

The pursuer had been employed as a power loader in the mining industry between about 1976 and 2002, when he was made redundant. He had developed Hand Arm Vibration Syndrome ("HAVS") and has been partially compensated for this by the defenders. In particular, he has received payments from the defenders for solatium, disadvantage on the labour market and necessary services, and this proof was in relation to an outstanding issue of dispute between the parties: whether the pursuer had a valid claim for loss of earnings during the period from 12 August 2003 to 1 May 2007.

Having heard evidence, the court concluded that the pursuer had been offered the opportunity to work in the wheelie bin cleaning business in January 2003, but had been unable to take up this opportunity due to his HAVS. The court found that had the pursuer been able to take up this opportunity, he would have been put in charge of a new van operating the business, and his income would have entirely depended on how many new customers he was able to obtain from operating the new van. The court found that any indication of wages from this enterprise could only have been an estimate, and not a guarantee of earnings. The court found that the pursuer had accordingly lost an opportunity to work in and expand the business, and had also lost an opportunity to earn an income that would have been paid to him, in the event that the expansion of the business was successful.

Accepting the pursuer's submissions that the court should take a broad approach to the assessment of loss of earnings in the whole circumstances, the court accepted that the pursuer would have been likely to take up the job, and would probably have made a success of it (or there was a reasonable chance of success). Noting however that the pursuer's earnings would have likely fluctuated, the court awarded one third of the figure of £22,500 viz £7,500 to cover loss of earnings over the relevant period. In doing so, the court rejected the defender's submission that to make such an award would be unduly speculative.