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The Ogden Tables -v- Smith & Manchester: A Court of Appeal Decision on Loss of Earnings - Gordon Exall, Zenith Chambers

07/10/15. In Billett -v- Ministry of Defence [2015] EWCA Civ 773 the Court of Appeal overturned a decision that future loss of earnings should be determined by the “Ogden tables” approach and replaced it with the more traditional Smith -v- Manchester approach. Lord Justice Jackson sets out a detailed explanation of the “calculation” of a Smith award and  the “Ogden Tables” approach. The Court of Appeal  held that the “Ogden” approach should not be applied in the current case.


The claimant was a soldier who suffered a non-freezing cold injury to his feet. He subsequently left the army and found employment as a driver. Liability had been agreed at 75%. The trial judge awarded damages on the basis of the Ogden Tables A & B approach and awarded damages for future loss of earnings in the sum of £99,062.04.


The Court of Appeal upheld the award of damages for pain and suffering of £12,500.


Part 6. Damages for loss of future earning capacity

(i) loss of future earnings and future earning capacity

49.Where at the date of trial the effect of the claimant’s injury continues to inhibit his ability to work, the court needs to compensate him for the difference between his predicted future earnings and his notional future earnings if he were uninjured. The court does this by calculating the annual loss (the multiplicand) and then applying an appropriate multiplier. The court derives the multiplier by subtracting the claimant’s actual age from his retirement age, then making reductions to take account of accelerated receipt and contingencies. The contingencies are all the hazards of life which might have prevented the claimant from working continuously from the date of trial to retirement age, even if he had not sustained the injury for which he is now being compensated.

50. When I started at the Bar, judges derived the appropriate multiplier on the basis of judicial experience and citation of authority. As I will explain in the next section, that approach has been replaced by a more scientific method. Judgment

51. In addition to the difference between the claimant’s current rate of earnings and his notional (uninjured) rate of earnings, there is a separate head of loss to consider. That is the claimant’s handicap on the labour market on those future occasions when he may be seeking employment. He may be unemployed for a longer period or he may be forced to accept a less attractive job offer than would otherwise be the case.

52. Even if the claimant’s current rate of earnings is the same as his pre-accident rate, he may still have a claim for loss of future earning capacity. The claimant is entitled to a lump sum as compensation for the losses which he is likely to suffer in the future by reason of increased difficulty in obtaining or retaining employment.

53. In Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40 Lord Denning MR explained the difference between loss of earnings and loss of earning capacity in this way: “It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

54. In Smith v Manchester Corporation (1974) 17 KIR 1 the plaintiff developed a frozen shoulder as a result of an accident caused by her employer’s negligence. At the date of trial the plaintiff was undertaking work for the same employer and at the same rate of pay as before (£16.50 per week), so that she had no current loss of earnings. Her employer undertook to continue employing her as long as it could properly do so. The Court of Appeal increased the plaintiff’s award of damages so as to include £1,000 for future loss of earning capacity. The court explained that this sum was to compensate the plaintiff for the fact that, if she became unemployed, she would find it more difficult than uninjured persons to obtain employment. Both Edmund Davies LJ and Scarman LJ explained that they could not calculate this award using a multiplier and multiplicand. Instead they were looking at the matter in the round and making a general assessment. Stamp LJ agreed.

55. In Moeliker v A. Reyrolle & Co. Ltd [1977] 1WLR 132, Browne LJ said that a plaintiff’s loss of earning capacity arises where “as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by his injury”.

56. Browne LJ said that the first question to consider was whether there was a real or substantial risk that the claimant would lose his current job before the end of his working life. If the answer is yes, then Browne LJ gave the following guidance as to how the court should assess that head of damages: “Clearly no mathematical calculation is possible. Edmund Davies LJ and Scarman LJ said in Smith v Manchester Corporation, 17 K.I.R. 1, 6, 8, that the multiplier/multiplicand approach was impossible or “inappropriate,” but I do not think that they meant that the court should have no regard to the amount of earnings which a plaintiff may lose in the future, nor Judgment Approved by the court for handing down. Billett v MOD to the period during which he may lose them. What I think they meant was that the multiplier/multiplicand method cannot provide a complete answer to this problem because of the many uncertainties involved. The court must start somewhere, and I think the starting point should be the amount which a plaintiff is earning at the time of the trial and an estimate of the length of the rest of his working life. This stage of the assessment will not have been reached unless the court has already decided that there is a “substantial” or “real” risk that the plaintiff will lose his present job at some time before the end of his working life, but it will now be necessary to go on and consider–(a) how great this risk is; and (b) when it may materialise–remembering that he may lose a job and be thrown on the labour market more than once (for example, if he takes a job then finds he cannot manage it because of his disabilities). The next stage is to consider how far he would be handicapped by his disability if he was thrown on the labour market–that is, what would be his chances of getting a job, and an equally well paid job. Again, all sorts of variable factors will, or may, be relevant in particular cases–for example, a plaintiff’s age; his skills; the nature of his disability; whether he is only capable of one type of work, or whether he is, or could become, capable of others; whether he is tied to working in one particular area; the general employment situation in his trade or his area, or both. The court will have to make the usual discounts for the immediate receipt of a lump sum and for the general chances of life.”

57. As a matter of convention a claim for damages on this basis is commonly referred to as a Smith v Manchester claim. In practice such awards usually range between six months’ and two years’ earnings: see Court Awards of Damages for Loss of Future Earnings: an Empirical Study and an Alternative Method of Calculation by R Lewis and others, [2002] Journal of Law and Society, Vol.29, pages 406-435 at 414. (ii) The Ogden Tables

58. In the 1980s Sir Michael Ogden QC chaired a working party which developed the well known Ogden Tables. These tables enable the court to derive an appropriate multiplier, which takes into account the risk of certain contingencies and the benefit of accelerated receipt.

59. The Ogden Tables received the imprimatur of approval by the House of Lords in Wells v Wells [1999] 1 AC 345. Lord Lloyd observed at 379 that these tables should be regarded as a starting point; a judge should be slow to depart from them either on impressionistic grounds or by reference to the multipliers used in comparable cases.

60. Section 10 of the Civil Evidence Act 1995 provides that the Ogden Tables are admissible in evidence in personal injury litigation for the purpose of assessing damages for future pecuniary loss. However, contrary to paragraphs 43 to 44 of the judge’s judgment, that provision has never been bought into force. Judgment Approved by the court for handing down.

61. The main Ogden Tables fall into separate parts. The first part sets out whole-life multipliers. Judges and lawyers use these for calculating future care costs. The second part sets out multipliers for loss of earnings. These tables show the multipliers appropriate to different retirement ages. In each table a series of different multipliers are set out, to show the effect of taking different discount rates. For some years the discount rate fixed by the Lord Chancellor pursuant to section 1 of the Damages Act 1996 has been 2.5%.

62. The original Ogden Tables took into account two factors. The first factor was the benefit of early receipt. The claimant was receiving a lump sum (which he could invest if he wished) as compensation for losses which he would suffer in the future. The second factor was mortality. That was the risk that the claimant might die prematurely.

63. Later editions of the Ogden Tables have provided ways of taking into account risks and contingencies other than mortality.

64. In due course Sir Michael Ogden retired. He died in 2003. The working party which he had established remained in being. It continued to be known as the Ogden Working Party. Its membership changed over time, but it always included actuaries, lawyers, accountants and others with relevant expertise.

65. In the sixth edition of the Ogden Tables (2007) and the seventh edition (2011) the working party introduced four new tables known as Tables A, B, C and D (“Tables AD”). The purpose of these tables is to take into account contingencies other than mortality, which may reduce a claim for loss of earnings.

66. Tables A-D set out a series of reduction factors (“RFs”) which range between .93 at the highest and .06 at the lowest. The RF indicates the amount by which a multiplier for loss of earnings (derived from the main tables) should be reduced in order to take account of contingences other than mortality.

67. As Mr Poole explained during his submissions, the object of Tables A-D is to make the results of relevant research available for use by the courts. Amongst other things, Tables A-D attach numerical values to the general considerations which, according to Moeliker, the courts should consider when assessing loss of future earning capacity. 68. The operation of Tables A-D may be illustrated by taking examples at the two extremes. According to Table A, in the case of a fit man in employment aged 25-29 with high educational qualifications the RF is .93. So his multiplier for loss of future earnings is only reduced by 7% in order to allow for contingencies other than mortality. According to Tables B and D, in the case of an unemployed disabled person, aged 54, with low educational qualifications, his/her RF is .06. So the multiplier for loss of future earnings of such a person is reduced by 94% in order to allow for contingencies other than mortality.

69. The current members of the Ogden Working Party in their Explanatory Notes identify the research upon which Tables A-D are based. Some of the literature about that research is included in the authorities bundle. Judgment Approved by the court for handing down.

70. Neither party has suggested that Tables A-D are unreliable. Nevertheless, for the avoidance of doubt, I should place on record that there has been no argument in the present case as to the adequacy of the research base or as to the correctness of Tables A-D. Therefore I am in no position to endorse Tables A-D (in the same way that other courts have endorsed the main Ogden Tables)Nor am I in any position to criticise Tables A-D. I do not criticise them.

71. Argument in the present appeal has proceeded on the assumption that Ogden Tables A-D are properly derived from a sufficiently broad statistical base. I am content to proceed on that assumption.

72. The principal issue in this appeal is whether Tables A-D are applicable to Mr Billett and, if so, whether the judge applied them correctly.

73. The variables which Tables A-D take into account are the following: i) The claimant’s age at the date of trial; ii) Whether the claimant is male or female; iii) Whether the claimant is employed or unemployed at the date of trial; iv) The claimant’s educational attainment; v) Whether or not the claimant is disabled.

74. Factors (iv) and (v) involve considering broad bands of educational attainment and broad bands of disability. Therefore the user may need to adjust the RF in order to reflect where a particular individual falls within those bands.

75. The working party explains the need for adjustment of the RF in paragraph 32 of the Explanatory Notes as follows: “The suggestions which follow are intended as a ‘ready reckoner’ which provides an initial adjustment to the multipliers according to the employment status, disability status and educational attainment of the claimant when calculating awards for loss of earnings and for any mitigation of this loss in respect of potential future post-injury earnings. Such a ready reckoner cannot take into account all circumstances and it may be appropriate to argue for higher or lower adjustments in particular cases. In particular, it can be difficult to place a value on the possible mitigating income when considering the potential range of disabilities and their effect on post work capability, even within the interpretation of disability set out in paragraph 35. However, the methodology does offer a framework for consideration of a range of possible figures with the maximum being effectively provided by the post injury multiplier assuming the claimant was not disabled and the minimum being the case where there is no realistic prospect of post injury employment”. Judgment Approved by the court for handing down.

 76. For the purposes of Tables A-D the working party define disability as follows in paragraph 35 of the Explanatory Notes: “Disabled: A person is classified as being disabled if all three of the following conditions in relation to the ill-health or disability are met: i) has an illness or a disability which has or is expected to last for over a year or is a progressive illness ii) satisfies the Equality Act 2010 definition that the impact of the disability substantially limits the person’s ability to carry out normal day-to-day activities iii) their condition affects either the kind or the amount of paid work they can do Not disabled: All others Normal day-to-day activities are those which are carried out by most people on a daily basis, and we are interested in disabilities/health problems which have a substantial adverse effect on respondent’s ability to carry out these activities. There are several ways in which a disability or health problem may affect the respondent’s day to day activities: Mobility – for example, unable to travel short journeys as a passenger in a car, unable to walk other that at a slow pace or with jerky movements, difficulty negotiating stairs, unable to use one or more forms of public transport, unable to go out of doors unaccompanied. Manual Dexterity – for example, loss of functioning in one or both hands, inability to use a knife and fork at the same time, or difficulty in pressing buttons on a keyboard. Physical co-ordination – for example, the inability to feed or dress oneself; or to pour liquid from one vessel to another except with unusual slowness or concentration. Problems with bowel/bladder control – for example, frequent or regular loss of control of the bladder or bowel. Occasional bedwetting is not considered a disability Ability to list, carry or otherwise move everyday objects (for example, books, kettles, light furniture) – for example, Judgment Approved by the court for handing down. inability to pick up a weight with one hand but not the other, or to carry a tray steadily. Speech – for example, unable to communicate (clearly) orally with others, taking significantly longer to say things. A minor stutter, difficulty in speaking in front of an audience, inability to speak a foreign language would not be considered impairments. Hearing – for example, not being able to hear without the use of hearing aid, the inability to understand speech under normal conditions or over the telephone. Eyesight – for example, while wearing spectacles or contact lenses – being unable to pass the standard driving eyesight test, total inability to distinguish colours (excluding ordinary red/green colour blindness), or inability to read newsprint. Memory or ability to concentrate, learn or understand – for example, intermittent loss of consciousness or confused behaviour, inability to remember names of family or friends, unable to write a cheque without assistance, or an inability to follow a recipe. Perception of risk of physical danger – for example, reckless behaviour putting oneself or others at risk, mobility to cross the road safely. This excludes (significant) fear of heights or underestimating risk of dangerous hobbies.”

77. The reference in that passage to “the Equality Act 2010 definition” is a reference to the provisions of the Equality Act which I have set out in Part 1 above.

78. In paragraph 45 of the Explanatory Notes the working party states that Tables A-D provide one way of assessing damages for the claimant’s future handicap on the labour market. They add that “there may still be cases where a conventional Smith v Manchester award is appropriate”.

(iii) The present case

79. As noted in Part 3 above, the judge held that the claimant was “disabled” as that term is defined in paragraph 35 of the Explanatory Notes to the Ogden Tables. The judge rejected the submission that he should make a general assessment of damages for loss of future earning capacity in accordance with the Smith v Manchester guidance. Instead he used the Ogden Tables as a tool for calculating a precise award of damages under this head. The judge’s actual calculation was as follows:

i) At the date of trial the claimant is a man aged 25-29. He is in the middle range of educational attainment. He is employed. Therefore if uninjured his RF derived from Table A would be .

ii) Because he is disabled, his RF derived from Table B is .54. That should be adjusted to .73 because the claimant’s disability is minor.

iii) The claimant’s retirement age will be 68. Therefore his multiplier for loss of future earnings derived from the main Ogden Tables is 24.29. That figure only allows for accelerated receipt and mortality risk. An appropriate reduction factor must be applied to allow for other contingencies.

iv) Absent NFCI the claimant’s multiplier would be 24.29 x .92 = 22.35. Because of the claimant’s NFCI his multiplier is 24.29 x .73 = 17.73. Therefore the claimant’s multiplier is reduced by 4.62 (i.e. 22.35 – 17.73) as a result of his NFCI. v) 4.62 x £21,442 (the claimant’s current earnings) = £99,062.04. Therefore that is the proper quantification of the claimant’s loss of earning capacity.

80. Mr Browne for the defendant mounts three attacks on the judge’s assessment of damages under this head.

i) The claimant is not “disabled” within the definition set out in the Ogden Tables.

ii) Even if the claimant falls within the definition of “disabled”, Smith v Manchester provides a better method of assessing damages for loss of future earning capacity than the Ogden Tables in the particular circumstances of this case.

iii) Even if the judge was correct to use the Ogden Tables, he erred by taking too low a reduction factor.

81. I must first address the question whether the claimant was “disabled” within the definition in paragraph 35 of the Explanatory Notes to the Ogden Tables. The judge held that he was disabled and Mr Browne attacks that conclusion.

82. Mr Browne points out that before the claimant left the army he had been upgraded to MFD, which means Medically Fully Deployable. That is true, but Major General Craig in his agreed medical report is critical of the INM’s assessment of the claimant in June 2010 when the claimant was discharged from the clinic in respect of NFCI.

83. Referring to paragraph 35 of the Explanatory Notes, Mr Browne concedes that requirements (i) and (iii) are satisfied. The claimant’s NFCI has already lasted for more than a year. Also the claimant’s NFCI does affect the kind of paid work that he can do. This is because the claimant cannot spend long periods outside in cold weather.

84. Mr Browne focuses his attack on requirement (ii). He submits that the claimant’s NFCI does not substantially limit his ability to carry out normal day to day activities, within the meaning of the Equality Act.

85. I have looked at the Guidance Notes issued by the Secretary of State pursuant to section 6 (5) of the Act. The examples of disability and non-disability given in those notes are of limited assistance, because they tend towards the extreme on both sides. Judgment Approved by the court for handing down.

86. The issue of what constitutes a “substantial adverse effect” on a person’s “ability to carry out normal day to day activities” within the meaning of section 6 arose in Aderemi v London and South Eastern Railway Ltd [2013] ICR 591. Langstaff J, delivering the judgment of the appeal tribunal, stated at paragraph 14:

Because the effect is adverse, the focus of a tribunal must necessarily be upon that which a claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definitions of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”

87. That is an extremely helpful statement of how the test in section 6 (1) (b) should be applied. I propose to adopt the approach which Langstaff J set out in that paragraph.

88. Mr Browne points to all the activities which the claimant can still do. He can go fishing all the year round, provided the weather is good. He can go clay pigeon shooting all the year round, provided the weather is good. The claimant has no difficulty working full time as a lorry driver.

89. Those statements are all true. But, as Mr Poole points out, those submissions fall into the trap which Langstaff J identified in Aderemi. They are directed to what the claimant can do. The focus of the inquiry should be upon what he cannot do as a result of the injury to his feet.

90. The judge has accepted the claimant’s evidence as to the things which he cannot do. These include DIY and gardening in cold weather; playing rugby and swimming regularly; playing with his children outside when it is cold.

91. The judge concluded that the claimant’s NFCI had a substantial adverse effect on his ability to carry out normal activities. In view of the factual evidence which the claimant and Ms Knight gave and which the judge accepted, he was entitled to reach that conclusion.

92. The judge’s overall conclusion on the disability issue at paragraph 59 of the judgment was:

His condition qualifies as a disability…, but only just”. The judge was entitled to reach that conclusion. I therefore reject Mr Browne’s first argument.

93. I turn now to Mr Browne’s second argument. This is that the judge should have adopted the Smith v Manchester approach to assessing damages for loss of future earning capacity, rather than doing a mathematical calculation based upon the Ogden Tables.

94. Here I am bound to say that I see more force in the appellant’s arguments. Some of the bands used in Tables A-D are, of necessity, extremely wide. Disability, as defined in paragraph 35 of the Explanatory Notes, covers a very broad spectrum.In their article Ogden Reduction Factor adjustments since Conner v Bradman: Part 1 [2013] Journal of Personal Injury Law, pages 219-230, the authors point out that the Health and Disability Survey 1996-7 measured severity of disablement on a scale of 1 to 10, where 10 denotes the greatest severity. 42.9% of those classified as disabled fall within categories 1 to 3. 43.9% of those disabled fall within categories 4 to 7. 13.2 % of the disabled population fall within categories 8 to 10.

95. There is no evidence as to how the claimant would be classified within that scale. The natural inference, however, from the judge’s findings of fact is that the claimant would fall towards the bottom of category 1.

96. If one applied Ogden Tables A and B in the present case without any adjustment, the result would be an award of about £200,000 for future loss of earning capacity. That is hopelessly unrealistic for the claimant. He is pursuing his chosen career as lorry driver, with virtually no hindrance from his disability. He secured employment with Framptons within one week of leaving the army. He has strong qualifications for lorry driving and an excellent CV. Furthermore the judge held that the claimant was “a hard working and capable man, who is likely to be sought after by employers” (judgment paragraph 38 (a)). In order to bring a sense of reality to the present exercise, it is necessary to make a swingeing increase to the RF shown in Table B (.54). But what should that increase be? Determining an appropriate adjustment to the RF is a matter of broad judgment. In the present case that exercise is no more scientific than the broad brush judgment which the court makes when carrying out a Smith v Manchester assessment.

97. Mr Poole draws attention to a number of articles which argue the case for using Tables A-D, suitably adjusted, in preference to making a Smith v Manchester award. See Ogden Reduction Factor adjustments since Conner v Bradman: Part 1 by Latimer-Sayer and Wass [2012] Journal of Personal Injury Law, pages 219-230 and Ask the expert: William Latimer-Sawyer asks Victoria Wass some questions about the practical application of the Ogden Reduction Factors by Latimer-Sawyer and Wass [2015] Journal of Personal Injury Law, pages 36-45.

98. I accept that in many instances the use of Tables A-D will be a valuable aid to valuing the claimant’s loss of earning capacity. But the present is not such a case. I reach this conclusion for three reasons:

i) Disability covers a broad spectrum. The claimant is at the outer fringe of that spectrum. Judgment Approved by the court for handing down.

ii) The claimant’s disability affects his ability to pursue his chosen career much less than it affects his activities outside work.

iii) Because of (i) and (ii) in this case there is no rational basis for determining how the reduction factor should be adjusted.

99. The Ogden Working Party acknowledge in their Explanatory Notes that in some instances the Smith v Manchester approach remains appropriate. In my view this is a classic example of such a case. The best that the court can do is to make a broad assessment of the present value of the claimant’s likely future loss as a result of handicap on the labour market, following the guidance given in Smith v Manchester and Moeliker.

100. Reviewing all the factors which I have previously set out, I conclude that an appropriate award on that basis would be two years’ earnings. I would be prepared to round that up to £45,000. In my view £45,000 would be just and fair compensation for the claimant’s loss of future earning capacity.

101. In those circumstances, the appellant’s third line of attack on the judge’s decision does not arise. If I am wrong, however, on the previous issue, I would certainly accept that an RF of .73 is too low.

102. The claimant only just scrapes into Table B. That is the effect of the judge’s finding in paragraph 59 of his judgment. Therefore I do not think that the judge was correct to take an RF half way between that stated in Table A (.92) and that stated in Table B (.54). The judge should have taken an RF much closer to that in Table A. The result would be to produce an award in the region of two years’ loss of earnings. That is the same conclusion as I have reached by the Smith v Manchester route.

103. Let me now draw the threads together. For the reasons stated above, I would reduce the judge’s award of damages for future loss of earning capacity to £45,000.

104. Finally, I note that Dr Wass (a member of the Ogden Working Party and a co-author of all the articles referred to above) is critical of the judge’s decision in the present case. Dr Wass argues that Mr Billett was not “disabled”, so he does not fall within Table B at all. See Billett v MOD and the meaning of disability in the Ogden Tables by Victoria Wass [2015] Journal of Personal Injury Law, 37. Dr Wass’ article does not form any part of my reasoning. Nevertheless both she and I, by different routes, conclude that a direct application of the Ogden Tables is not appropriate for assessing loss of future earning capacity in the present case.


107. In my view the judge’s award of £12,500 as general damages for pain, suffering and loss of amenity should stand. In relation to loss of future earning capacity, I believe that the judge’s assessment of £99,062.04 based upon the Ogden Tables was incorrect. In the particular circumstances of this case the court cannot do better than carry out a general assessment in accordance with the guidance given in Smith v Manchester Corporation (1974) 17 KIR 1 and Moeliker v A. Reyrolle & Co Ltd [1977] 1 WLR 132. On that basis I would assess general damages for loss of future earning capacity at £45,000.

Gordon Exall
Zenith Chambers

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The Abolition of Civil Liability in Employer's Liability Claims: An Early Indication of the Courts' Approach? - Jack Harding, 1 Chancery Lane

06/10/15. Section 69 of the Enterprise and Regulatory Reform Act 2013 amended section 47 of the Health and Safety at Work etc. Act 1974 in so far as it relates to civil liability. The section now provides that breach of a duty imposed by a statutory instrument containing health and safety regulations shall not be actionable except so far as regulations made under the 2013 Act so provide. The Act applies came into force on 1st October 2013 and applies to all accidents arising after that date.

There was much debate amongst practitioners in the field of personal injury about what effect the repeal of civil liability would have in the context of employer's liability claims. The general consensus seemed to be that in order to reflect the statutory purpose behind the changes there must be some substantive difference in the way that the courts would approach these cases, otherwise the exercise was a futile one.

There are not, as far as this author is aware, any relevant reported decision of the English Courts which post-date the changes.

However, in the Scottish case of Gilchrist v ASDA (2015) Rep. L.R. 95 Lady Stacey, sitting in the Outer House, approved the following submissions made by Counsel for the Pursuer (the Claimant) about the effect of the changes:

"Counsel submitted that employers remain under a statutory duty to comply with health and safety regulations, as the duties set out in statutory instruments made prior to the 2013 Act inform and may define the scope of duties at common law. She made reference to a ministerial statement in the House of Lords in which a government spokesman stated that the Act did not undermine core health and safety standards and that employers' statutory duties would remain relevant as evidence of standards expected of employers in civil cases. She argued that an employer who breached a regulation and was thereby committing an offence could hardly argue that he was acting reasonably. She referred to Munkman, p.668, Charlesworth and Percy, para.12–73 and Robb v Salamis (M&I) Ltd . Counsel argued that the existence of a regulation demonstrates that harm is foreseeable, under reference to Boyle v Kodak in which Lord Reid said: “Employers are bound to know their statutory duty and to take all reasonable steps to prevent their men from committing breaches” ([1969] 1 W.L.R., p.668)."

It should be noted that Counsel for the Defender did not offer any alternative submissions and therefore it would appear that the Court did not hear any proper argument on the issue. Nonetheless, it is noteworthy that a Court at this level was willing to accept the pursuer's submissions so readily and it will be interesting to see how the case law develops in England and Wales in due course.

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Is It Strictly Illegal? - Simon Anderson, Park Square Barristers

06/10/15. It is with starry-eyed nostalgia that lawyers recall undergraduate law questions. I was recently presented with the following set of facts that resembled an examination paper on the topic of ex turpi causa non oritur actio.

Master Dennis sustained a significant subdural haematoma in a motorcycle accident when he was aged 16. He owned a trials bike, although it had no number plates, lights or road fund licence. Unsurprisingly, Dennis had not yet obtained his motorcycle licence, and was uninsured.

Whilst riding at about 20 mph on a public highway with his best friend, Gnasher, riding as pillion, Dennis was passed by two police officers on motorcycles. Dennis was wearing a crash helmet and goggles, which he removed as the police approached. Neither officer was sounding sirens, displaying lights or making hand gestures. Unfortunately for Dennis and Gnasher one of the police officers kicked the wheel of their motorcycle and they fell off. Dennis was knocked unconscious and immediately taken to hospital.

Dennis was later prosecuted for offences relating to his absent tax, licence and insurance. He was not, however, prosecuted in respect of any other driving offence. Discuss the liability of the police (15 marks). What if Dennis had been riding dangerously? (5 marks)

Assuming Dennis not to have been driving dangerously, then the present facts can be distinguished from the Court of Appeal judgment in Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218. There the claimant was injured in consequence of jumping from a second-floor window to escape from the custody of the police. He sued the police for damages, claiming that they had not taken reasonable care to prevent him from escaping. Attempting to escape from lawful custody is a criminal offence. The Court of Appeal held that, assuming the police to have been negligent, recovery was precluded because the injury was the consequence of his own unlawful act.

The facts of Dennis’ case have clear parallels with McCracken v Smith & Ors [2015] EWCA Civ 380. The claimant was a 16 year-old pillion passenger on a stolen trials bike ridden by his uninsured friend. The accident occurred when the bike collided with a minibus driven by Mr Bell. The bike was being ridden on a cycle path that crossed the entrance to a community centre and where there were double broken white lines informing cyclists that they had to give way to other traffic. The minibus was turning right into the community centre when the bike collided with its offside. At first instance Mr Bell was found 55% liable for the accident. In not wearing a helmet the claimant was held to have contributed to his own injuries by 15%. The MIB’s ex turpi causa defence was rejected, (although it escaped liability as the claimant knew the bike to be being used without insurance). The judge found that it was not the claimant’s presence on the bike that was the most proximate cause of his injuries, but the way in which it was driven.

Mr Bell appealed, arguing firstly that the MIB’s ex turpi causa defence should have succeeded, and secondly, had it done so then he would not have been held liable. The second argument was easily dismissed – the public interest did not require the court to abstain from affording the claimant a remedy on account of the carelessness of Mr Bell. The answer to the first point, however, requires closer scrutiny of the authorities.

In Gray v Thames Trains Ltd [2009] 1 AC 1339 Lord Hoffmann set down the following test:

“Can one say that, although the damage would not have happened but for the tortious act of the defendant, it was caused by the criminal act of the claimant? (Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218). Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant? (Revill v Newbery [1996] QB 567)."

In Revill v Newbery [1996] QB 567 the claim was brought by a man who was shot and injured by the occupier of land in the course of an attempted burglary on the property. The Court of Appeal held that the liability of the occupier depended on ordinary principles of negligence at common law and that he had been negligent in firing the shot.

Lord Hoffmann’s test was applied in Delaney v Pickett [2011] EWCA Civ 1532 where the claimant was injured in a collision while couriering cannabis - the damage suffered by the claimant was not caused by his or her criminal activity, which was regarded as incidental.

The contrary view was taken in Joyce v O'Brien [2013] EWCA Civ 546. The claimant stole a set of ladders, which were placed in the back of a van for the purposes of making a getaway. The driver of the vehicle sped off with the back doors of the van open and the claimant inside. The claimant fell out and suffered serious injury. The driver subsequently pleaded guilty to dangerous driving. Applying the causation test set out in Gray Elias J considered that:

“the injury will be caused by, rather than occasioned by, the criminal activity of the claimant where the joint criminal illegality affects the standard of care which the claimant is reasonably entitled to expect from his partner in crime;…where the character of the joint criminal enterprise is such that it is foreseeable that a party or parties may be subject to unusual or increased risks of harm as a consequence of the activities of the parties in pursuance of their criminal objectives, and the risk materialises, the injury can properly be said to be caused by the criminal act of the claimant even if it results from the negligent or intentional act of another party to the illegal enterprise.

The broad scope of the defence was tempered by the observation that the doctrine is one of public policy, and therefore inherently flexible. It does not apply, for example, to minor traffic offences; this also reflects the speech of Lord Rodger in Gray, where at paragraph 83 he suggested that some offences are too trivial to engage the defence.

The Supreme Court in Les Laboratoires Servier v Apotex Inc [2014] UKSC 55 was also alive to the possible draconian consequences of the widening of the application of the principle. Lord Sumption specifically cautioned against a discretionary fact sensitive approach, and called for the application of principles based on rules of law. He set about by stating that the ex turpi causa principle commonly raises three questions: (i) what acts constitute turpitude for the purposes of the defence? (ii) what relationship must the turpitude have to the claim? (iii) on what principles should the turpitude of an agent be attributed to his principal, especially when the principal is a corporation? The first two questions are relevant for present purposes.

As to the first question, Lord Sumption was clear that it requires acts which engage the public interest. The illegality defence, where it arises, arises in the public interest, irrespective of the interests or rights of the parities. He also pointed out that, although described as a defence, it is in reality a rule of judicial abstention. In effect, it is in the public interest that the state denies the individual a remedy. It is difficult to imagine how this is anything other than broadly discretionary and fact sensitive approach.

In his application of the law as set out above, Richards LJ has no difficulty in finding that the claimant in McCracken was guilty of an offence of dangerous driving on the basis of a joint enterprise. The second question posited by Lord Sumption in Les Laboratoires Servier v Apotex Inc could be answered by reference to the test set out by Elias J in Joyce v O’Brian: was it foreseeable that the claimant and his friend may be subject to unusual or increased risks of harm as a consequence of their dangerous driving? On this analysis the Court of Appeal was bound to conclude that it should abstain from providing Mr McCracken with a remedy against the rider of the motorbike.

Applying the law to the facts of Dennis’ possible claim against the police, it is necessary first to ask: what acts constitute turpitude for the purposes of the defence? The answer appears to be largely motoring document offences. Looking at these through the public policy prism, it is clear that his lack of motor insurance is a grave concern, especially given the fact that he was transporting Gnasher at the material time. There are overwhelming public policy reasons for society’s insistence that all motorist should be covered against third party risks. Indeed, the MIB would argue that there is a powerful moral obligation on society to be adequately insured while driving on the highway. Nevertheless, this category of strict liability minor offence appears to have been what Elias J in Joyce, Lord Rodger in Gray and Lord Sumption in Les Laboratoires Servier had in mind as being too trivial, and if caught by the rule, too draconian.

If the event of a finding of fact that Dennis’ driving fell far below that expected of a competent and careful driver then, applying Joyce and McCraken, the balance is tipped against him on the issue of whether his actions are sufficient to set up the defence. The second of Lord Sumption’s questions therefore falls to be determined.

What was the relationship of the turpitude to the claim? The answer to this question lies both in the motives of the police officer, and the details of Dennis’ riding. If, for example, the officer was demonstrating excessive zeal in kicking out at the front wheel of the motorbike, and had no reason to suppose that it would not be brought to a safe halt, then the fact of Dennis’ dangerous driving offence would appear to be incidental, as opposed to causative.

The police may wish to argue that it was foreseeable that the standard of Dennis’ riding would subject him to unusual or increased risks of harm. That the risk happened to materialised means that the injury can properly be said to have been caused by the criminal act of the claimant. Whilst this is the effect of Joyce, it is distinguishable on the obvious and possibly paradoxical basis that Dennis is in the position of principal offender, as distinguishable from his co-conspirator, Gnasher. Furthermore, Lord Hoffmann’s speech in Grey should be recalled: although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant. It is therefore submitted that unless there were clear and pressing reasons for kicking Dennis from his trials bike, for example he was riding on the pavement in the vicinity of pedestrians, or he was reasonably likely to evade lawful arrest, then the greater probability is that the defence of ex turpi causa will fail.

Simon Anderson
Park Square Barristers

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Damages Assessed on a Loss of Chance Basis: Interesting Court of Appeal Observations and a Round Up of the Relevant Cases - Gordon Exall, Zenith Chambers

05/10/15. In Lillington -v- Ministry of Defence [2015] EWCA Civ 775 the Court of Appeal made some interesting observations in relation to damages for loss of chance of career promotion.  The court was somewhat sceptical about the (joint) submissions that damages for future loss of earnings could not be considered on a “loss of chance” basis and pointed to several cases where the courts have done exactly that. Here we look at those observations and review several of the key cases relating to loss of chance.


The defendant was appealing a factual decision that the claimant was entitled to additional damages of £62,559 on the basis that he would have been promoted to Corporal. The judge found that, on the balance of probabilities, the claimant would ahve been promoted and awarded that additional sum on the basis of this finding.

THE OBSERVATIONS IN RELATION TO LOSS OF CHANCE Lord Justice Vos made some preliminary observations.

  1. At the beginning of the argument, Moore-Bick LJ asked Mr Yaqub Rahman, counsel for the MoD, whether the judge ought, instead of considering the matter on an “all or nothing” basis, to have considered awarding damages for the loss of the chance that the respondent would have passed the 2009 JCC and been promoted to Corporal. Mr Rahman dismissed this suggestion with great certainty and was supported in his approach by Mr Christopher Barnes, counsel for the respondent. They relied on the House of Lords’ majority decision in Gregg v. Scott [2005] 2 AC 176, where a patient had recovered no damages for the negligent delayed diagnosis of his cancer, because the delay had only reduced his survival chances from 42% to 25%, so he had not been able to show on a balance of probability that he would have been cured but for the negligence. That was a case where liability for medical negligence was in issue and in order to establish a cause of action the claimant had to prove (on a balance of probabilities) that he had in fact suffered harm as a result of the defendant’s negligence. It was not a case relating to the assessment of financial loss flowing from that harm which depended on the court’s view of whether or not a future event would have occurred. As it seems to me, there would have been grounds for thinking, in this case, that the judge ought to have awarded damages for loss of a chance (see Lord Diplock at page 176 inMallett v. McMonagle  [1970] AC 166, Lord Reid at page 213 in Davies v. Taylor  [1972] 3 All ER 836; Langford v. Hebran  [2001] EWCA Civ 361 , andBrown v. MOD  [2006] EWCA Civ 546 ). Since neither party asked us to consider this question, we can only proceed on the agreed basis, namely that the judge asked himself the correct question when determining whether special damages should be awarded for the loss of the respondent’s promotion to Corporal. I should not, however, be taken as accepting that the parties’ agreed approach was correct in law.


The Court of Appeal’s surprise is understandable. There are numerous cases where the courts have decided issues such as this on a “loss of chance” basis.

The approach taken is even more surprising when the decision of the House of Lords in

Gregg v. Scott [2005] 2 AC 176,

is read. In that judgment the House of Lords approved claims for loss of chance in relation to future prospects but stated that this approach could not be taken in relation to causation in clinical negligence cases. The judgment of Lord Nicholls of Birkenhead.

Loss of an opportunity or chance as actionable damage

  1. It is perhaps not surprising therefore that it is principally in the field of hypothetical past events that difficulties have arisen in practice. Sometimes, whether a claimant has suffered actionable damage cannot fairly be decided on an all-or-nothing basis by reference to what, on balance of probability, would have happened but for the defendant’s negligence. Sometimes this would be too crude an approach. What would have happened in the absence of the defendant’s negligence is altogether too uncertain for the all-or-nothing approach to be satisfactory. In some cases what the claimant lost by the negligence was the opportunity or chance to achieve a desired result whose achievement was outside his control and inherently uncertain. The defendant’s wrong consisted of depriving the claimant of a chance he would otherwise have had to achieve a desired outcome.

  2. Then, the greater the uncertainty surrounding the desired future outcome, the less attractive it becomes to define the claimant’s loss by whether or not, on balance of probability, he would have achieved the desired outcome but for the defendant’s negligence. This definition of the claimant’s loss becomes increasingly unattractive because, as the uncertainty of outcome increases, this way of defining the claimant’s loss accords ever less closely with what in practice the claimant had and what in practice he lost by the defendant’s negligence.

  3. In order to achieve a just result in such cases the law defines the claimant’s actionable damage more narrowly by reference to the opportunity the claimant lost, rather than by reference to the loss of the desired outcomewhich was never within his control. In adopting this approach the law does not depart from the principle that the claimant must prove actionable damage on the balance of probability. The law adheres to this principle but defines actionable damage in different, more appropriate terms. The law treats the claimant’s loss of his opportunity or chance as itself actionable damage. The claimant must prove this loss on balance of probability. The court will then measure this loss as best it may. The chance is to be ignored if it was merely speculative, but evaluated if it was substantial: see Davies v Taylor [1974] AC 207, 212, per Lord Reid.

  4. Some familiar examples will suffice. A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have happened if the claimant had been duly notified of her interview: Chaplin v Hicks [1911] 2 KB 786. When a solicitor’s failure to issue a writ in time deprived a claimant of the opportunity to pursue court proceedings damages were not assessed on an all-or-nothing basis by reference to what probably would have been the outcome if the proceedings had been commenced in time. The court assessed what would have been the claimant’s prospects of success in the proceedings which the solicitor’s negligence prevented him from pursuing: Kitchen v Royal Air Force Association [1958] 1 WLR 563. When an employer negligently supplied an inaccurate character reference, the employee did not need to prove that, but for the negligence, he would probably have been given the new job. The employee only had to prove he lost a reasonable chance of employment, which the court would evaluate: Spring v Guardian Assurance Plc [1995] 2 AC 296, 327.

  5. In Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 a solicitor’s negligence deprived the claimant of an opportunity to negotiate a better bargain. The Court of Appeal applied the ‘loss of chance’ approach. Stuart-Smith LJ, at page 1611, regarded the case as one of those where ‘the plaintiff’s loss depends on the hypothetical action of a third party, either in addition to action by the plaintiff … or independently of it.’ It is clear that Stuart-Smith LJ did not intend this to be a precise or exhaustive statement of the circumstances where loss of a chance may constitute actionable damage and his observation should not be so understood.”


In Herring v Ministry of Defence [2003] EWCA Civ 528, [2004] 1 All ER 44 the Court of Appeal stated loss of chance claims do not replace the conventional means of assessing future loss of earnings but are more appropriate in cases where the chance to be assessed is where the chance is that the career of the claimant would take a particular course leading to significantly higher overall earnings than those which it is otherwise reasonable to take as the baseline for calculation.


For example, in Moores v Co-operative Wholesale Society Ltd (1955) Times, 9 May, CA, the plaintiff, a police officer, had been injured in a previous accident, and as a result his prospects of continuing in the police force were very slight. The second accident rendered him unfit for police duty. The Court of Appeal held that the effect of the second accident was to deprive the plaintiff of a ‘poor chance’ of continuing in the police force, and they reduced the damages substantially from £3,000 to £1,000.


In Chaplin v Hicks [1911] 2 KB 786, 80 LJKB 1292, CA – which was not a case of personal injuries – damages were given for the loss of an opportunity to be considered (on a competitive basis) for a theatrical engagement.


The loss of an opportunity is certainly a valid head of damages, and cases may be conceived where a claimant is injured on the way to an interview where he has good prospects of being selected for an important post. Loss of an opportunity of starting or continuing an apprenticeship, or a career in the armed forces, may also be caused by an accident at the critical time; or an examination may be missed. Such opportunities may be lost if not taken promptly, and the damages might be substantial, for example, Comer v Bolton [1987] CLY 1159, CA where a girl lost the chance of attending a high-class secretarial course.

Doyle v Wallace – loss of chance to train as a teacher

In Doyle v Wallace [1998] 30 LS Gaz R 25, [1998] PIQR Q146, CA the claimant was a student when injured. Her case what if she had not been injured she would have qualified as a teacher. The Court of Appeal upheld the judge’s decision to base damages on the basis that she had a 50% chance of qualifying as a teacher.

Langford v Hebran – sporting career

In Langford v Hebran [2001] PIQR Q160, the claimant was a trainee bricklayer who had also just begun a promising career as a professional kickboxer. He suffered whiplash injuries and an injury to his shoulder in a road accident, which were sufficient to put an end to his professional kickboxing career.

In his claim for loss of earnings the claimant claimed loss of earnings and also presented four alternative scenarios reflecting various degrees of success in the fighting career, each more successful than the last.

The trial judge accepted the claimant’s argument that he should receive the basic claim, his kickboxing career to these levels. The Court of Appeal rejected the defendant’s argument for the defendant appellant that a Doyle-type approach was inappropriate where there were a number of different options to choose from. The claimant was entitled to a percentage of the increased earnings he could have expected in each of the predicted scenarios, had he had the chance to progress as a professional kickboxer, with a discount to take account of the possibility that his success may have been short

lived, and that he may not have realised any of the hypothetical scenarios suggested.

Professional Footballer: Appleton –v- Medhat Mohammed El Safty

In Appleton –v- Medhat Mohammed El Safty [2007] EWHC 631 (QB) the court considered the loss of chance of a professional footballer on the basis that he had 75 chance of playing at championship level and 25% chance of playing in division one.

Clarke –v- Maltby – loss of chance of advancement as a solicitor

In Clarke-v- Malty [2010] EWHC 1201 (QB) the claimant was a solicitor in private practice whose injuries meant she had a reduced earning capacity. She had lost the chance of partnership in large practices. Damages were assessed on the basis that she had a 100% chance of a fixed share equity in a regional law firm; an 85% chance of she would be a partner in a middle sized City firm and 30% chance of joining a city or central London firm as a partner.

XYZ –v- PORTSMOUTH HOSPITALS NHS TRUST – Loss of chance of running successful business

In XYZ –v- Portsmouth Hospitals NHS Trust [2011] EWHC 243 (QB) damages were awarded on the basis that the claimant would have set up and run a substantial business, there was a 50% chance that the business would reach £5 million and a 20% chance that his business would achieve a turnover of more than £10 million. The total award of damages was £6,740.646.

Chance of remaining in the army

The courts have also considered the issue of the “chance” of a soldier remaining in the army in order to properly assess the claim for loss of pension,see Brown –v- Ministry of Defence [2006] EWCA Civ 546.

Gordon Exall
Zenith Chambers

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What Is It About Driving? - Peter Harthan, 7 Harrington Street

01/10/15. Two people are walking down a busy High Street. They are reasonably well adjusted, unexceptional members of society. Use your imagination to attach further details as you think appropriate. Anyway, one of these people, perhaps glimpsing something in a shop window or distracted by their mobile phone, fails to spot the other and they bump into each other. No harm is done to either of them. Now, the outcome of this scenario, played out hundreds of times a day, is almost always both people apologising to the other, sentiments along the lines of “Sorry” or “oh don’t worry” and each eager to repair any upset caused.

Now contrast the above with what happens when essentially the same scenario occurs but with each person driving a car. Lets say one changes lanes at a roundabout without seeing the other. A collision results. No real harm is done to either, but there are some dents and scratches to the cars. Both drivers will pull over and each starts to blame the other for the collision “you changed lanes” - “but you were in the wrong lane”. What initially starts out as an exchange of views soon deteriorates into a shouting match with personal insults being thrown. One threatens to call the police. In due course insurance details are exchanged and the matter goes off to Insurers to sort out. If neither side concedes or no agreement can be reached as to an appropriate apportionment of blame, then the matter will eventually result in a court hearing many months, sometimes even years, later.

Why are people’s reactions so different to a momentary lapse in concentration when cars are involved? Of course partly this is explained by the fact that cars are expensive and cost money to repair, but that doesn’t go all the way. We ascribe the worst of motives to driving mistakes. Consciously or subconsciously the innocent driver thinks that the fault driver has deliberately done something to get him. The mechanical shield of the car is a barrier to the usual human emotions. But there is something more, something deep rooted, that for most people drowns any feelings of forgiveness or reconciliation.

I am not suggesting that we should forgive bad driving that puts lives in danger. People who speed in built up areas, habitually use a handheld device or otherwise put life in danger should rightly be condemned. However in most cases I have dealt with we are not dealing with drastically bad driving. It is just that someone made a mistake, as all drivers do, and it caused a collision. In my time at the Bar I have dealt with numerous road accident cases. I have also dealt with criminal cases. The allegations put in criminal courts are, on any view, the more serious and socially unacceptable. However, Defendants in the criminal courts will often admit to having committed varying degrees of violence, theft or dealing in drugs. Parties in road traffic cases rarely admit to being a bad driver. In the criminal courts the stigma of sexual offences means that Defendants rarely plead to them. Bizarrely, in the civil courts, being labelled a bad driver seems to hold similar stigma.

This all ends up in a short hearing before a District Judge who wasn’t at the scene of the accident and has heard hundreds of such cases before. By now the parties often hate each other. I have seen parties yelling abuse at each other after such hearings. I have had to restrain a client as he went to attack the other driver after a judgment had been delivered. The passions and emotions aroused from a disputed liability road traffic accident are often hard to contain in the narrow confines of a District Judge’s hearing room. Whilst trials for murders and rapes generally pass off with decorum and civility in the Crown Court, the veneer of civility often fails to remain intact at small claims road traffic cases. Of course, somebody always leaves court feeling hard done by, there has to be a losing party. But how often, to put it bluntly, does the court get it right? Is it any better than flicking a coin…

Peter Harthan
7 Harrington Street

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