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Recent Developments in Asbestos Litigation - Niall Maclean, 12 King’s Bench Walk

15/10/14. Asbestos-related illnesses continue to be litigated controversially, with no apparent let-up in the number of new claims and the complexity of the issues they generate.

In this article I hope to give a flavour of some of the most important developments in this area over the past year or so. I approach the issues from the perspective of someone who acts for claimants in asbestos cases, although I hope the analysis offered is of general interest.

Breach of duty

The Court of Appeal’s decision in Williams v University of Birmingham1 remains an important and influential backdrop against which thorny questions on breach of duty are considered. On the (in my opinion questionable) authority of this case, defendants continue to place great stock on historic attempts to set “safe” exposure levels in, for example, the Factory Inspectorate’s series of Technical Data Notes. These official attempts to regulate exposure levels have been described with the benefit of hindsight as being “gravely erroneous”2, but after the Supreme Court’s decision in Baker v Quantum Clothing Group Ltd3 hindsight is irrelevant and consideration of the historic standards of the time is paramount.

The Williams approach to breach of duty was well exemplified again this year in the case of McGregor v Genco (FC) Ltd4. The claimant worked in a large department store in the mid-1970s, a period during which some escalators were replaced close to where she worked. During the six week duration of the works, she had to clean up a fine white powder which had settled on surfaces. She saw workmen wearing masks, and the escalator works were cordoned off behind a floor-to-ceiling screen. Since the joint expert engineering evidence was that asbestos insulation boards would have been cut and rendered during the course of the works, the court was prepared to infer that the white powder contained asbestos dust. It was further held that inhalation of this dust had caused the claimant’s mesothelioma. However, the claim failed on breach of duty. There was no evidence she was exposed to levels of asbestos in excess of those set down in Technical Data Note 13, which was deemed to be the best guide as to acceptable standards at the time when she was exposed. Usage of the screen as a precautionary measure was also deemed acceptable judged by the standards of the day. The fact that the men working on the escalator wore masks was not deemed suggestive that a higher standard should apply, since these masks were routinely used by those working in close proximity to large quantities of non-hazardous dust simply to make breathing more comfortable.

Two cases from 2013 show how a close analysis of the nature and pattern of the alleged exposure can often tip the balance when breach of duty is considered. In Garner v (1) Salford City Council (2) McGuiness and Co. Ltd5 the claimant was a pupil at a school in the late 1970s which was situated adjacent to some old swimming baths which were in the process of being demolished. Her case was that asbestos dust was liberated in the course of these works and this was the cause of her mesothelioma. The court was prepared to infer from how the works were carried out that asbestos dust was probably liberated in the process, but it also inferred from the fact demolition professionals were used that steps were probably taken to mitigate the volume of dust that was released. When the nature and pattern of the exposure was considered – in the open air, over a long distance – it was deemed likely the asbestos fibres would have been significantly dispersed and would not have breached the relevant Technical Data Note for the time in question (number 42) nor related guidance in an Environmental Hygiene Note issued by the Health and Safety Executive in 1976. On this basis, there was held to have been no breach of duty.

Consideration of the nature and pattern of exposure worked to the claimant’s advantage in the case of (1) Hill (2) Billingham v John Barnsley & Sons Ltd and ors6. For about three months in the late 1960s Mr Billingham worked in a newly built power station testing the strength of the steel girders used in its construction. This he did by throwing a chain over them, and suspending weights from the chain. It was agreed that a good deal of asbestos dust from insulation material used in the construction of the plant had probably been deposited on the top surface of the girders. During the testing exercise, Mr Billingham was showered in large quantities of this asbestos dust, albeit for relatively short periods of time. The defendant’s case was that these very short-burst exposures did not offend against Technical Data Note 13. Bean J (as he then was) disagreed. It was impossible to be exact about exposure levels. However, it was very likely that Mr Billingham was exposed on each burst to very high levels of airborne asbestos fibres which would take some time to settle, and those bursts were repeated many times a day for a six week period. Even based on the standards of the time, this was held to give rise to a foreseeable risk of injury. Since the defendant took no precautionary or remedial measures, liability followed ineluctably.

In the few days prior to writing this article, David Pittaway QC (sitting as a Deputy Judge of the High Court) gave judgment for the defendant in the case of Macarthy v Marks and Spencer PLC7, seemingly placing stock yet again on official attempts to set “safe” exposure levels and following the approach laid down in Williams. It appears also that the Deputy Judge rejected the claimant’s arguments on the stringency of the 1976 Health and Safety Executive Guidance Note. The full text of the judgment is awaited.

Finally, two first instances decision from earlier this year – Abbott v Cannock Chase DC8 in May and Atkinson v Secretary of State for the Department of Energy and Climate Change9 in July – emphasise the importance of good quality lay and (in particular) expert evidence in establishing that what the claimant was exposed to was in fact asbestos, and in quantities sufficient to give rise to a foreseeable risk of harm.

Burdens of proof

In McDonald v (1) Department for Communities and Local Government (2) National Grid10theclaimant was employed by the first defendant as a lorry driver in the 1950s. He was sent during the course of his employment to the premises of the second defendant, at which he claimed to have been exposed to asbestos as a result coming into close proximity to laggers who were mixing and removing asbestos lagging.

It was found as a fact at first instance that the claimant’s exposure to asbestos was light and intermittent. Based on the standards and knowledge of the time when the claimant was exposed, there was held to be no breach of any common law duty of care nor of s.47 of the 1937 Factories Act.

The claimant also sued under regulation 2(a) of the Asbestos Industry Regulations of 1931. In terms, this calls for the usage of mechanical exhaust equipment whenever any individual is engaged in the mixing or blending of asbestos. The trial judge held that whilst the claimant was in principle entitled to the protection of regulation 2(a) when visiting the second defendant’s premises, he had failed to show that certain exceptions to the application of the regulation (relating to the frequency and duration of the relevant processes) did not apply in his case.

Importantly, the Court of Appeal reversed this decision. The exceptions effectively operate as a defence, and knowledge as to their application or otherwise will usually be the preserve of defendants. The trial judge had wrongly reversed the burden of proof on this issue – the burden was on the second defendant to prove the exceptions applied, not on the claimant to prove they did not. Since the second defendant led no evidence on this issue, liability was established.

The Supreme Court has heard the second defendant’s appeal and the claimant’s cross-appeal on whether he was entitled to the protection of s.47 of the 1937 Factories Act, and the judgment is awaited with interest.

Identifying defendants

This can be a particular problem in asbestos litigation due to the long period of time that often elapses between exposure and the manifestation of disease. Potential defendants may be difficult to trace or no longer in existence. Restoring non-extant companies to the register is often a fruitless exercise since many exposed their workers to asbestos at a time when liability insurance was not compulsory, and there is consequently no way any judgment could be satisfied.

One way possible way round these problems is to sue the extant parent company of a non-extant subsidiary, a tactic successfully pursued by the claimant in the case of Chandler v Cape PLC11. A case from this year shows the limitations of this approach, however.

In Thompson v Renwick Group PLC12 the claimant was employed by two companies from the late 1960s to the late 1970s. Those companies were purchased in 1975 by a subsidiary of the defendant. That same year, the defendant appointed a new director to the board of the subsidiary company and tasked him with running the site where the claimant worked. The claimant was engaged at this site in the hand baling of raw asbestos in quite appalling conditions the Court of Appeal would go on to describe in trenchant terms as “really quite shocking” and “a cause for shame”13. Furthermore, the two companies that employed the claimant did not have employers’ liability insurance (despite their legal obligation to do so) and would not be able to meet any judgment obtained for the claimant’s disabling pleural thickening.

The claimant therefore brought proceedings against the defendant, as the parent company. His case was that it, through the new director it appointed to the subsidiary company, had taken sufficient control of his day-to-day work to mean it had assumed a duty of care to ensure his safety. Alternatively, he argued that the parent company should have such a duty imposed upon it due to the taking of this level of control.

The Court of Appeal rejected the claimant’s arguments. In running the day-to-day work, the director was merely acting in accordance with his fiduciary duties and he had not assumed any duty of care in relation to health and safety matters. There was no scope to impose such a duty either, since the well-known test for doing so laid down by the House of Lords in Caparo Industries PLC v Dickman14 could not possibly be satisfied. The relationship between the claimant’s work and the parent company was insufficiently proximate to make it fair, just and reasonable to impose such a duty. There was no evidence the parent company did much over and above simply holding shares in the subsidiary company. In these respects, the facts of the case were far removed from those in Chandler, where the defendant parent company had actually employed a group medical adviser with responsibility for the health of all employees within the group of companies for which it was parent, and a scientific officer specifically tasked with investigating ways of suppressing airborne asbestos dust. Furthermore, in Chandler there was evidence that many aspects of the work process had in fact been discussed by the parent company’s board of directors.

In Dowdall v (1) William Kenyon and Sons Ltd (2) BECA Ltd (3) Greenield & Payne Ltd15 the claimant had settled in 2003 a claim for asbestosis against seven of his ten former employers. He did not pursue the other three because his solicitors had at the relevant time been unable to trace insurers able to meet any judgment. The 2003 settlement excluded any compensation for the claimant’s risk of contracting mesothelioma, a risk that sadly went on to materialise. Andrew Edis QC (sitting as a Deputy Judge of the High Court) found that the subsequent proceedings against the remaining three defendants were not an abuse of the court’s process. Those employers had not been pursued in the first action for perfectly good reasons. This decision reflects the broad, merits-based approach the courts have taken to abuse arguments since the House of Lords’ decision in Johnson v Gore Wood & Co (No.1)16.


The Court of Appeal’s decision from January of this year in the case of Haxton v Phillips Electronics Ltd17 has far-reaching implications for the law of damages well beyond asbestos litigation.

Mrs Haxton sought damages from the defendant as a result of her husband’s fatal mesothelioma. Tragically, she too went on to develop the disease, probably from washing her husband’s work clothes. Her dependency claim under the Fatal Accidents Act 1976 was hugely truncated due to her reduced life expectancy as a result of her mesothelioma. Her case was that, but for the defendant’s negligence, her life expectancy would not have been reduced and her dependency claim would concomitantly have been far greater. She claimed for the diminution in the value of a chose in action, as a result of the defendant’s negligence. The Court of Appeal held there was no principled reason why any such claim should not be allowed. Certainly, such a claim was not inconsistent with the wording of the Fatal Accidents Act 1976 nor the policy that lay behind it. Just as any detrimental effect on a contractual right can sound in damages, so too ought it to be the case that the diminution of a statutory right can also attract compensation. Furthermore, the defendant’s argument that the claimant’s reduced dependency claim was too remote was rejected by the Court of Appeal. It is perfectly foreseeable that any reduction in a person’s life expectancy could have a detrimental impact on any claim for damages brought by that person. Any defendant unfortunate enough to reduce the life expectancy of such a person would, in the usual way, have to take its victim as it found him.

In Knauer v Ministry of Justice18, the trial judge was invited to depart from the conventional approach of assessing multipliers for future losses under the Fatal Accidents Act 1976 as at the date of the deceased’s death. There had been a delay of almost five years between Mrs Knauer’s death from mesothelioma and the assessment of damages at trial, in large part due to the robust but ultimately unsuccessful stance taken by the defendant on the issues of liability and medical causation. The claimant argued that assessing his future losses as at the date of his wife’s death meant, due to the credit for accelerated receipt built into multipliers in the Ogden tables, that he was in effect giving credit for accelerated receipt on what was in part a past loss. Instead, the claimant invited the judge to treat the losses in the period between Mrs Knauer’s death and trial as past losses, and to assess the multiplier for future losses as at the date of the trial. Bean J (as he then was) accepted the claimant’s arguments but held himself bound by the House of Lords authorities of Cookson v Knowles19 and Graham v Dodds20 to adopt the conventional approach. However, he granted the claimant a “leapfrog” certificate to petition the Supreme Court directly for permission to appeal on the issue. The Supreme Court’s decision is awaited.

The year ahead

We can confidently predict another busy year for first instance and appellate courts.

Buoyed by the Court of Appeal’s decision in Williams and its apparent ongoing influence, defendants are very likely to defend claims robustly where they feel they have good prospects of showing exposure levels to fall within contemporaneous official threshold levels of “safety”. We can expect claimants to continue attacking this line of reasoning, at least partly on the basis that many such levels were never designed to form the touchstones of civil liability. Rather, they were put in place to mandate onerous forms of state enforcement action and therefore, it might be argued, they set a less demanding standard than ought to be expected by the civil courts.

There are clear advantages to be gained both for claimants and defendants in really drilling down into the nature and pattern of the alleged asbestos exposure, especially given how the courts have approached breach of duty post-Williams. Increased time and effort will probably need to be spent marshalling good quality lay and expert evidence on these issues. At a time when the costs associated with personal injury litigation are under more scrutiny than ever before21, it can only be hoped that asbestos cases continue to be litigated with the care and attention they deserve.

Niall Maclean is a barrister at 12 King’s Bench Walk who specialises in personal injury, clinical negligence and industrial disease work. He has a particular interest and expertise in asbestos litigation, and has acted in cases involving complex issues of liability and quantum.

1 [2011] EWCA Civ 1242.

2 Per Simon J in Asmussen v Filtrona UK Ltd [2011] EWHC 1734 (QB).

3 [2011] UKSC 17.

4 [2014] EWHC 1376 (QB).

5 [2013] EWHC 1573 (QB).

6 [2013] EWHC 520 (QB).

7 [2014] EWHC 3183 (QB).

8 QBD (Judge Ralls QC) 15/05/2014, unreported.

9 QBD (HHJ Gore QC) 31/7/2014, unreported.

10 [2013] EWCA Civ 1346.

11 [2012] EWCA Civ 525.

12 [2014] EWCA Civ 635.

13 Per Tomlinson LJ at paragraph 1.

14 [1990] 2 AC 605.

15 [2014] EWHC 2822 (QB).

16 [2002] 2 AC 1 HL.

17 [2014] EWCA Civ 4.

18 [2014] EWHC 2553 (QB).

19 [1979] AC 556.

20 [1983] 1 WLR 808.

21 Albeit CFA success fees and ATE insurance premiums remain recoverable in diffuse mesothelioma cases, for the time being at least, following the High Court’s very recent decision in R (on the application of Tony Whitston) v Secretary of State for Justice (Defendant) and Association of British Insurers (Interested Party) [2014] EWHC 3044 (Admin).

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Switching Experts - Chris Pamplin, Editor of the UK Register of Expert Witnesses

14/10/14. Chris Pamplin looks at what can be done when your expert’s opinion changes.

In these days of austerity and with a cost-conscious judiciary, less leeway is likely to be given to parties in matters of procedure, including late applications relating to expert evidence.

Charles Terence Estates Limited

In Charles Terence Estates Limited -v- Cornwall Council [2011] EWHC 1683 (QB), the court dismissed an application to adduce expert evidence that was made 2 weeks before a scheduled trial date. In refusing the application, Coulson J considered the relatively few authorities that exist in relation to the exercise of the judge’s discretion in granting such applications. These included the case of Swain-Mason & Others -v- Mills & Reeve (a firm) [2011] EWCA Civ 14 in which the Court of Appeal gave guidance as to the interplay between the overriding objective and interlocutory applications made late and close to trial. Coulson J attached particular relevance to the words of Lord Justice Lloyd that:

... it is always a question of striking a balance. I would not accept that the court [seeks] to lay down an inflexible rule that a very late amendment to plead a new case, not resulting from some late disclosure or new evidence, can only be justified on the basis that the existing case cannot succeed and the new case is the only arguable way of putting forward the claim. ... However, I do accept that the court is, and should be, less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.’

Guided by this, Coulson J sought to follow similar lines and gave some helpful guidance in his judgment. He indicated that in allowing or dismissing an application to adduce late expert evidence the court should consider:

  • the importance of the application in the context of the case as a whole.

  • the justification, if any, for the delay

  • the consequences if the application was allowed and the consequences if the application was refused.

In Charles Terence Estates, Coulson J could see no justifiable reason for the delay, and neither was he persuaded that the expert evidence in question was reasonably required to resolve the proceedings.

In reaching his judgment, he next weighed the consequences of both allowing and refusing the application. He was mindful that allowing the application would inconvenience the innocent party, who would also be left with other disadvantageous consequences. Conversely, refusing the application would preserve the trial date, spare inconvenience to the innocent party but deprive the applicant’s ability to call expert evidence on a peripheral matter. He concluded that any prejudice to the applicant was slight and was, anyway, a consequence of its own failure to comply with an earlier order.


The Court of Appeal gave further guidance in April 2012 when Lord Justice Lewison delivered his judgment in Guntrip -v- Cheney Coaches Ltd [2012] EWCA Civ 392. In that case the court considered a claimant’s application for permission to adduce evidence from a new expert witness after the parties’ experts had produced a joint statement.

The claim was one of negligence against an employer for injuries sustained while driving in the course of employment. Each side instructed an orthopaedic surgeon, and the two experts produced a joint statement following their meeting. The joint statement was not supportive of the claimant’s case, and the claimant sought permission to instruct a fresh expert. The district judge refused permission, so the claimant appealed to a circuit judge who overturned the decision on grounds including that:

  • the claimant’s case would fail unless he was permitted to change his expert and that this took the case outside the ambit of previous authority, and

  • the district judge had overstepped his discretion by considering the content and value of the proposed new expert’s evidence.

Leave was given to refer the matter to the Court of Appeal.

The Court of Appeal was required to consider two factors when hearing the application. First, the broader question of whether new expert evidence should be allowed when an expert has changed his mind and, second, whether it was right to permit such fresh evidence at a relatively late stage in the proceedings having regard to the effect on time and costs.

When an expert’s opinion changes

Dealing with the broader question, Lord Justice Lewison said that the expert’s overriding duty applies not only to the preparation of an initial report, but also to the preparation and agreement of a joint statement, as well as to evidence given orally in court. If at any time the expert can no longer support the case of the instructing party, it is the expert’s duty to say so. Indeed, if the expert forms that view it is far better to say so sooner rather than later before the litigation costs escalate.

It is partly because an expert’s overriding duty is to the court that the court discourages expert shopping, particularly when a party has had a free choice of expert and has put forward an expert report as part of its case. The party must adduce good reasons for changing the expert. The mere fact that the chosen expert has modified or even changed his or her opinion is not enough. After all, the change of opinion may well be based on new evidence.

In exercising his discretion in accordance with the overriding objective, a trial judge is required to deal with cases justly. Justice does, of course, involve justice to the defendant as well as the claimant. The Court of Appeal held that the trial judge had exercised his discretion correctly and had considered the effect on both parties.

Whether to grant a party permission to adduce expert evidence, particularly where the application involves a change of expert, is a case management decision. It is a discretionary decision entrusted by the rules to the first-instance judge. The discretion must, of course, be exercised judicially, having regard to the overriding objective. Lord Justice Lewison took the view that the real issue in this appeal was not whether the circuit judge had exercised his discretion correctly, but whether he was entitled to interfere with the district judge’s exercise of his discretion. Lewison held that he was not, and ruled that the district judge’s original decision not to allow the change of expert should stand.

Dr Chris Pamplin
Editor of the UK Register of Expert Witnesses
This email address is being protected from spambots. You need JavaScript enabled to view it.

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QOCs and Tour Operators: Further Thoughts - Matthew Chapman, 1 Chancery Lane

12/10/14. This Note is a further rumination on Frances McClenaghan’s recent post about the Court of Appeal’s very recent decision in Wagenaar. It considers the tactical implications (for Tour Operators) of the QOCs rules (in respect of Part 20 recovery claims against local suppliers).

It is not uncommon for a Tour Operator, saddled with a package holiday personal injury claim, to bring Part 20 proceedings against a Third Party supplier (whether the supplier is the Hotelier, a local excursion provider or a skiing tuition company). Such Part 20 recovery claims mitigate the (perceived – at least, in some quarters) unfairness of the tour operator being expected to pick up the tab for the negligence of its local, in-resort supplier (as a result of regulation 15 of the Package Travel etc. Regulations 1992).

Equally, the commercial and litigation advantages of such recovery proceedings are (or were) fairly obvious. The tour operator could – by the Part 20 device – secure the co-operation (with evidence, witnesses and so forth) of the supplier and, if things went wrong at trial, there was a party to whom any liability could be shifted.

In addition, the cost of pursuing the Part 20 claim could be mitigated – if the Defendant were successful and the main action dismissed – by the recovery of costs from the unsuccessful Claimant/his insurers. In Wagenaar v Weekend Travel Ltd & Another [2014] EWCA Civ 1105 the Claimant sustained injury while enjoying a package skiing holiday with the Defendant. Like any self-respecting UK consumer she sued her tour operator when she returned home and the tour operator Defendant duly joined the alleged negligent ski instructor as a Third Party in a Part 20 claim. At trial, the claim was dismissed. The Part 20 claim was also dismissed.

It was ordered that the Claimant should pay the Defendant’s costs and the Defendant should pay the Third Party’s costs. So far, so good. However, the Judge then applied the Qualified One Way Costs Shifting (QOCS) provisions with the result that neither costs order was to be enforced. This left the Defendant out of pocket with respect to the main action and the Third Party out of pocket with respect to the Part 20 claim. The Defendant appealed on the basis – among other contentions – that QOCS did not apply to costs incurred before the QOCS reforms had come into force.

The Court of Appeal dismissed the Defendant’s appeal on this and the other grounds pursued. QOCS were procedural provisions and could be applied (albeit, restrospectively) to pre-QOCS costs. What about the Third Party’s argument that QOCS did not apply to Part 20 claims? The Court of Appeal agreed. It was held that the proper meaning of the word “proceedings” in CPR 44.13 had to be gleaned from the QOCS rules themselves. Rules 44.13 to 44.16 concerned Claimants who were making a claim for damages for personal injury, whether in the claim, in a counterclaim, or by an additional claim. In the context of the QOCS regime, the word “proceedings” in CPR 44.13 did not, therefore, embrace the entire litigation process in which commercial parties disputed responsibility for the payment of personal injury damages.

CPR 44.13 did not apply QOCS to the entire action in which a claim for damages for personal injury was made. In the circumstances, the Defendant could not recover costs from the unsuccessful Claimant (because of QOCs) and was stuck with the costs of the successful Third Party (because QOCs did not apply to the Part 20 claim). Will this make Defendant tour operators think more carefully in future about joining Third Party suppliers?

Matthew Chapman
1 Chancery Lane

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Is There a Fourth Way to Assess Future Loss of Earnings? - Geoff Owen, Greenwoods Solicitors

09/10/14. Once upon a time there was the Smith v Manchester award. If the claimant returned to work but with a disability which put him at a substantial and not speculative or fanciful disadvantage on the open labour market, he would receive an award, often linked to so many months’ or years’ net earnings, depending on the level of risk. For example in Hindmarch v Virgin Atlantic (2011) the allowance was the equivalent of a year’s net pay.

Prior to Ogden 6, the Smith award was also relevant in a more serious case involving a claim for continuing, partial loss of earnings. John Smith (not his real name) was seriously injured. But for the accident he would have earned £25,000 p.a. net. Following the accident he eventually returned to work at a reduced level of £15,000. If the adjusted multiplier* was 18.13, the defendant would argue that John’s loss was:

(£25,000 x 18.13): £453,250 less (£15,000 x 18.13): £271,950,a net loss of £181,300. However, to reflect John’s injured state a Smith award of (say) three year’s net earnings would have been be allowed in addition, a total of £226,300.

[* For comparative purposes the same adjusted multiplier is used for both the pre and post Ogden calculations.]

Then came Ogden 6, now Ogden 7 which offers a two part approach to this calculation. The claimant could now argue that John’s loss was as follows:

Part 1: John’s earnings but for the accident £25,000 x 18.13 = £453,250. As in the previous example, the adjustment to the ‘base’ multiplier is derived from Table A of the Ogden Tables. 

Part 2: John’s post accident earnings £15,000 x 9.89 = £148,350. The adjustment here comes from Table B and reflects the fact that John now has a disability.

It can be seen that this produces a net loss of (£453,250 - £148,350): £304,900.

The defendant will probably resist the use of the approach in Part 2. It has been successfully argued in a number of cases that when the true nature of a claimant’s disability is taken into account, the Ogden Part 2 approach risks over compensation, unless re-adjustments are made (see for example Connor v Bradman (2007) and Hunter v MOD (2007)). However, in Davison v Leitch (2013) the judge applied both Parts 1 and 2 to the letter. The defendant will certainly argue that if Part 2 is used, there should be no Smith award, as this methodology takes into account any disadvantage on the open labour market.

So, in summary, we had two options. The claimant goes back to work with no claim for partial future loss of earnings but receives a Smith award to reflect any existing or predicted disadvantage on the open labour market; or he will suffer a continuing partial loss and to a greater or lesser extent the second Part of Ogden 7 is applied. If there was no evidential basis for adopting either of these but the judge felt it appropriate to compensate the claimant for the possibility he might suffer loss of earnings in the future, his third option was to pluck a lump sum figure out of the air: a Blamire award (see Hiom v Wm Morrison Supermarkets Plc (2010)).

That was before Billett v MOD (2014) EWHC 3060 (QB).The claimant was 29 at the date of the assessment of damages. The defendant admitted liability to pay him 75% of the damages caused by a non-freezing cold injury sustained while taking part in military exercises. The judge made the following findings:

- The claimant had a continuing vulnerability to cold weather affecting his feet but not (as alleged) his hands

- The claimant had not left the army because of his condition but for family and other reasons. He had taken up a job offer with a haulage company within a week of leaving the armed forces. He was not, therefore, suffering a continuing partial loss of earnings.

The claimant’s schedule of loss was set out on alternative bases. First that the judge should adopt the multipliers produced by following Ogden 7 Parts 1 and 2 as illustrated above. This would have produced a difference of 10.41 between the two multipliers. Failing that the judge should make a Smith award of three times net earnings.

The judge accepted ‘that if (the claimant) loses his work at (the haulage company), he will have more difficulty finding other work than he would have done if he was medically free to take any job’. Despite the apparent security of the present job ‘there is clearly a risk that for one or other of a variety of reasons the claimant may find himself looking for work in the future and this is a risk for which he is entitled to be compensated’.

It is from this point that Billett takes an unusual course. The judge calculated that in the previous tax year the claimant had earned a figure of £21,442, which was close to what he had earned to date in the current tax year. He took that figure as the loss the claimant would sustain ‘for each full year when (he) is not in employment because of his restricted ability to work’. Applying the multiplier from Part 2 of an Ogden calculation produced (£21,442 x 10.41): £223,211. Allowing three times £21,442 as a Smith award would have produced £64,326. The judge rejected both approaches.

He held that having left the army of his own volition the claimant would probably be earning at or about the same level as he was. Any disadvantage would arise only if he had to leave a job, as his search for further work would be longer than would otherwise be the case. The claimant would be looking for work on the open labour market on several occasions throughout his working life. The judge found that he was ‘awarding damages for the risk of unemployment, and working on the basis that there will be a total loss of wages in that period…(The claimant’s) condition qualifies as a disability…., but only just …I have concluded that I should use the multiplier/multiplicand method but that my multiplier will be substantially reduced for contingencies other than mortality to reflect the minor nature of the disability’.

This the judge achieved by taking, for Part 2 of his calculation, the mid-point between the Table A and Table B adjustment factors, resulting in an adjustment factor of 0.73. He accepted that ‘(t)here is little logic in this approach, except that it gives a figure which appears to me to reflect fully the loss sustained by the claimant, but to do so in a way which does not obviously overstate that loss’ With a state pension age of 68 the unadjusted multiplier was 24.29. The Ogden Part 1 adjusted multiplier was (24.29 x 0.92): 22.35. The Ogden Part 2 multiplier was (24.29 x 0.73):17.73. However, these multipliers were not applied in the same way as the John Smith example above. Instead the judge took the claimant’s estimated current earnings of £21,442 and multiplied that figure by (22.35 – 17.73): 4.62 to produce an award of £99,062.04.

The heading to this article poses the question ‘is this a fourth way to assess future loss of earnings’? The writer thinks not. This claimant was deemed to be back at work and earning to his full potential, something that the judge found that he would achieve other than when out of work and searching for fresh employment. The case clearly did not lend itself to the two Part Ogden approach illustrated by John Smith’s case. We may also rule out a Blamire award, as the judge had sufficient evidence of earnings not to be required to assess a random lump sum. Surely, despite the judge’s views, this case fits squarely with a Smith v Manchester award. The judge’s concern was to evaluate the risk to this claimant over the 39 years between the assessment of damages and his state retirement age. The judge held that his ‘career path with this injury will be different only to the extent that if he has to change jobs, this will involve a longer search for work than would otherwise be the case’. Could that not have been achieved by awarding a higher than usual Smith award, rather than ‘fiddling’ with Ogden 7? Four times net earnings would have been £85,768; and five times £107,210. It can be seen that the actual award was slightly lower than the average of these figures.

Geoff Owen
Greenwoods Solicitors

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Adjusting the Ogden Reduction Factors to Reflect a Spectrum of Disability - Jack Harding, 1 Chancery Lane

08/10/14. In the context of a claim for future loss of earnings, for a number of years the Courts have been grappling with the thorny issue of when it is appropriate to adjust the reduction factors (RF) in Ogden tables A to D (contingencies other than mortality) to reflect the particular circumstances of the claimant and the relative severity, or modesty, of their disability.

Dr Victoria Wass, one of the actuarial experts who played a pivotal role in creating the tables, has been critical of previous attempts by the court to depart from the figures in the tables. In an article in 2013 she wrote that:

"RFs (reduction factors) provide the best available measure of the employment prospects for a typical member of each group. They are accurate as a measure of the group average but they are not likely to be accurate for any individual within that group. Imprecision is an inevitable consequence of scheduled damages. The alternative is an individual assessment by expert in each case


Apart from the likely injustice associated with under-compensating the claimant...there is the issue of uncertainty. The purposes of the Ogden tables, the multiplier/multiplicand formula and the setting of a fixed discount rate is to provide a degree of certainty and predictability to the damages calculation and to avoid the need for expert evidence in each case. The approach of judges making routine adjustments without reference to expert evidence in relation to the size of the adjustment, means that it is now difficult to predict the outcome in a given case"

The issue arose for consideration in Billett v Ministry of Defence (2014) Lawtel (QB). The Claimant suffered a non-freezing cold injury to his hands whilst serving as a lance corporal in the British Army. After his accident he left the army and became an HGV driver,. The evidence established that he would have given up his job in the army to become an HGV driver anyway (i.e. irrespective of whether he had been injured) but that if he found himself out of work and competing with able-bodied persons in the future his injury (which prevented him from working outside for long periods) would place him at a disadvantage. However, he remained fit and abled bodied in all other respects.

It fell to the judge (Andrew Edis QC) to determine what approach to take in calculating the Claimant's loss in this regard. Responding to Dr Wass's comments he explained the rationale for making an adjustment in any given case:

"The Court is required to fix a figure for compensation in the individual case before it, and the fact that following a table will produce a figure which is known to be wrong is not answered by the observation that the error is random. This means that if the tables are applied without adjustment, the right overall figure of damages across all cases will be awarded, but no Claimant will get the correct sum in damages and no Defendant will pay the right sum"

Having concluded that the Claimant did satisfy the definition of 'disabled' for the purposes of the Ogden tables (and the Equality Act 2010) he went on to make a significant adjustment to the reduction factor on the basis of the evidence before him:

"In using the tables, I am entitled to take into account the fact that I find it hard to conceive of many people who could be classified "disabled" who are as fit and able as is this Claimant. It must be remembered that when he left the Army he was medically fully deployable. He could be deployed anywhere in the world to do anything. If I apply the RFs without deduction, he will clearly be one of those whose award will be wrong because he will be compensated as any other disabled person would be compensated when in reality his disability is, by the standards of disability, quite minor. His condition qualifies as a disability under the test I have applied, but only just"

The explanatory notes to the Ogden tables (7th edition) promise that this issue will be "discussed in detail when drafting the 8th edition and consideration will be given as to whether the explanatory notes need amendment, especially as regards the circumstances in which it might be appropriate to depart from the suggested non-mortality reduction factors and the size of any adjustments that are made". Since the explanatory notes are themselves admissible in evidence (s.10 of the Civil Evidence Act 1995) these amendments are likely to assume considerable significance when the 8th edition is produced. For the time being, the approach adopted by the Court in Billett provides some useful guidance.

Jack Harding
1 Chancery Lane

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