Traditionally, with the exception of special circumstances, the assessment of future loss of earnings had not necessitated the application of percentage assessment techniques for "loss of a chance" based on the likely actions of third parties. Where the career model adopted by the judge had been chosen because it had in itself been the appropriate baseline and/or was one of a number of alternatives likely to give similar results, it was neither necessary nor appropriate to adopt the "percentage chance" approach in respect of the possibility that the particular career identified would not have been followed after all.Appeal from the decision of HH Judge Masterman, sitting as a Deputy High Court Judge, on 12 August 2002, assessing the damages payable by the defendant ('MOD') to the claimant, ('H'), in respect of serious spinal and other injuries suffered by H in a parachuting accident in September 1994. The effect of H's accident upon him had been that he had been changed from being a supremely fit young man who had worked as a sports coach, been in the Territorial Army Special Air Service and contemplated an eventual career with the police, into someone who could not walk more than 500 metres without the aid of a stick and frequent rests. General damages had been agreed but the judge had had to assess the effect of H's accident and disability on his employment prospects on the basis that he was capable of full-time sedentary or semi-sedentary work. The judge had found that H would have applied to and been accepted by the local police force, and would have risen to the rank of sergeant within seven years. Failing that he would have found like employment. He assessed H's earning potential and loss of future earning capacity on that basis and calculated them in a conventional manner, applying to the multiplicand of H's notional police salary a multiplier of 15.54 taken from the Ogden tables, reduced to 11.7 for "uncertainty" (a reduction of 25%). The net award for future earnings loss was ?131,532.35 plus a sum of £50,000 for loss of pension on the basis of H's notional retirement from the police force as a sergeant at the age of 55. H appealed on the following grounds: (i) on the basis of the judge's findings, it had not been appropriate to have calculated H's future loss of earnings as a police officer upon a "loss of chance" basis and to make a consequent deduction for uncertainty, as his earning capacity would not have been reduced if he had not entered the police force; (ii) the judge had not given a sufficient discount when he had calculated residual earning capacity to take account of H's disability; and (iii) the judge was wrong not to take account of the effect of the disability when he had calculated H's residual loss after the age of 55.HELD: (1) The assessment of future loss of earnings had not traditionally been regarded as necessitating the application of the technique of percentage assessment for "loss of a chance" based on the likely actions of third parties, except in special circumstances. The traditional method was to adjust the multiplier or multiplicand within the career model appropriate to the particular claimant so as to reflect: (a) the likelihood of an increase in earnings at some point in the claimant's career and (b) those contingencies/vicissitudes in respect of which a discount appeared to be appropriate. (2) In a case where the career model adopted by the judge had been chosen because it was in itself the appropriate baseline and/or was one of a number of alternatives likely to give similar results, then it was neither necessary nor appropriate to adopt the percentage chance approach in respect of the possibility that the particular career identified would not be followed after all. That was the position in this case. (3) The 25 per cent discount applied by the judge to the future earnings loss figure was too great. Taking the Ogden Tables as a guide, and treating the police as a "more risky" occupation, the appropriate discount for H would be in the order of 3 per cent. In order to justify a substantially higher discount by reason of additional future contingencies, there should be tangible reasons relating to the personality or likely future circumstances of the claimant going beyond the purely speculative. (4) If and in so far as the judge had made any substantial discount for the chance that H would not have become a policeman at all, he was wrong to do so. (5) The appropriateness of any element of discount that the judge had applied in respect of possible non-promotion to sergeant was in question, given the firm finding of the judge that such promotion would have been obtained within seven years. Even if some discount had been appropriate, it should not have been substantial given that, on the undisputed figures, such a promotion would only have involved a salary increment of around 10 per cent. (6) There had been no evidence that the risk of injury or the likelihood of disenchantment with the police was higher than for comparable occupations. (7) There was no justification for contingencies substantially in excess of the figure to be obtained from the Notes to the Ogden Tables. (8) A discount of no more than 10 per cent would have been appropriate, but working on a broad brush basis, the multiplier would be reduced from 15.54 to 14 years, increasing the award for future earnings loss by £54,300. (9) There had been no good reason to disturb the judge's award in respect of residual earning capacity. (10) The judge should have made a modest award in respect of residual loss after the age of 55 in respect of a real risk of handicap in the labour market on Smith v Manchester principles. An additional award of £5,000 would be made.Appeal allowed. Judge's award in respect of future earnings loss increased by a total of £59,300.

[2003] EWCA Civ 528

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