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Neutral Citation Number: [2006] EWCA Civ 546 |
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Case No: B3/2005/1109 |
IN THE SUPREME COURT
OF
JUDICATURE
COURT
OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANCASTER COUNTY COURT
HIS HONOUR JOHN TOWNEND
(On appeal from District Judge James)
CA010952
|
|
Royal Courts of Justice Strand, London, WC2A 2LL |
|
|
10 May 2006 |
B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE MOORE-BICK
and
MR. JUSTICE LAWRENCE COLLINS
____________________
Between:
____________________
Mr. Jeremy Roussak (instructed by the Treasury Solicitor) for the appellant
Mr. P.N. Hinchliffe Q.C. and Mr. Michael Morwood (instructed by Hough Halton & Soal) for the respondent
Hearing date : 8th March 2006
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Lord Justice Moore-Bick:
- 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 16th 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:
"All the evidence put before the Court leads to one inevitable conclusion, that she would have continued for the full 22 years
of
service, and I so find as the first baseline for the claim.
. . . . . . . . I am satisfied that service over 22 years would conclude at the very least with promotion to the rank
of
Staff Sergeant. This will therefore be the second baseline for all calculations."
He thought there was a 30% chance that she would have reached the higher rank
of
Warrant Officer First Class ("WO1").
- 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:
"19. On the evidence in this case in its totality I find the claimant's decision to join the Army did represent a long held wish. It was a mature considered decision involving her leaving a secure job, albeit with limited prospects, a boyfriend
of
four years, her family home, and after discussions with persons who could be expected to know what Army service entailed. I find that she was determined to succeed and would have succeeded in making a successful career . . . . . . .
. . . . . . . . . . .
24. The inevitable conclusion, says District Judge James, is that she would have continued for the full 22 years
of
service. District Judge James was following the reasoning
of
the Court
of
Appeal in Herring. Certainly in my judgment the appropriate authority to consider is Herring. In my judgment it is probable that the claimant would have served for the appropriate full term.
Of
course the vagaries
of
life mean that no-one can be certain
of
something
of
that kind. Anyone in any career cannot be so certain but one is not looking at certainties, and the appropriate method
of
calculating damages takes those matters into account. I have no doubt that the likelihood is that the claimant would have pursued her career for its full term. Indeed, I find it is probable that she would have pursued her career for its full term." (Emphasis added.)
- When considering the rank that Miss
Brown
would have achieved he made the following finding in paragraph 26:
"I find that there is certainly a likelihood that she would have reached the rank
of
Staff Sergeant. Indeed, on the totality
of
the evidence I find that it is probable that she would have reached the rank
of
Staff Sergeant." (Emphasis added.)
However, he did not think that there was any evidence that would enable him to assess in any realistic way her prospects
of
promotion beyond the rank
of
Staff Sergeant. In those circumstances he held that for the purposes
of
assessing her claim for loss
of
pension rights the chance
of
her doing so should be ignored.
- 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.
(a) Loss
of
pension rights
- 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] PIQR 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 ER 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:
"The role
of
the court in making an assessment
of
damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions
of
determining what was. In determining what did happen in the past a court decides on the balance
of
probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount
of
damages which it awards."
- Lord Reid said at pages 212H-213A
"When the question is whether a certain thing is or is not true - whether a certain event did or did not happen - then the court must decide one way or the other. There is no question
of
chance or probability. Either it did or it did not happen. But the standard
of
civil proof is a balance
of
probabilities. If the evidence shows a balance in favour
of
it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent.: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability
of
51 per cent. and a probability
of
49 per cent."
For convenience we shall refer to this simply as the principle in Davies v Taylor.
- 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.
(b) Disadvantage in the labour market
- 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.
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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/546.html