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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brown v Ministry of Defence  EWCA Civ 546 (10 May 2006)
Cite as:  EWCA Civ 546
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LANCASTER COUNTY COURT
HIS HONOUR JOHN TOWNEND
(On appeal from District Judge James)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
MR. JUSTICE LAWRENCE COLLINS
| JENNIFER ANNE BROWN
|- and -
|MINISTRY OF DEFENCE
Mr. P.N. Hinchliffe Q.C. and Mr. Michael Morwood (instructed by Hough Halton & Soal) for the respondent
Hearing date : 8th March 2006
Crown Copyright ©
Lord Justice Moore-Bick:
"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").
"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.)
"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.
(a) Loss of pension rights
"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."
"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.
(b) Disadvantage in the labour market