The claim came before the High Court in July 2014. It was accepted that the claimant had sustained minor NCFI which limited his ability to carry out normal day to day activities. However in relation to his financial losses it was concluded that the claimant had left the army in 2011 because of his family commitments rather than his injury and his claim for financial losses caused by leaving the army prematurely was rejected. The claimant had suffered a loss of future earning capacity because he had to avoid working outside in cold conditions. The court accepted the claimant’s submission that he was “disabled” for the purposes of the Ogden Tables and upon their calculations he was awarded £99,062.04 for loss of future earning capacity.
The defendant appealed both against the assessment of general damages which were awarded at £12,500, and the award for loss of future earning capacity. On appeal the court upheld the award for general damages. However the court concluded that it was not appropriate to apply the Ogden Tables A-D because the claimant was on the outer fringes of the spectrum of disability and any disability he did suffer from affected his ability to pursue his chosen career much less than it affected his activities outside of work. The claimant was pursuing his chosen career as a lorry driver with virtually no hindrance from his disability and the judge had commented that he was likely to be sought after by employers because of the previous training he had received while in the army. For this reason they accepted that on the basis of a Smith v Manchester approach an appropriate award would instead be two years’ earnings which came to £45,000.
This was the first time the Court of Appeal had considered the application of Tables A to D, which were incorporated into the Ogden Tables in 2006. It will be interesting to see how the court’s approach in this case is applied in other marginal cases where the disability is not necessarily considered substantial but could affect loss of future earning capacity.
Summarised by Adam Dyl & Hannah Swarbrick, Anthony Gold Solicitors