Michael Smale v (1) Steven Ball (2) Motor Insurers Bureau
Michael Smale v (1) Steven Ball (2) Motor Insurers Bureau
NOTE ON CASE & JUDGMENT
The facts and issues
C claimed substantial damages for serious personal injuries and other losses arising out of a road traffic accident which occurred on 10.8.97. C was born on 10.11.84: he was 12 years old at the time of the accident, and 22 years old at trial. Liability for the accident was not in issue. The trial concerned the assessment of C’s damages. Prior to trial all heads of claim other than C’s loss of earnings and earning capacity were agreed in the global sum of £47,000 including interest. The sole issue for determination at trial was the proper quantification of the claim for future loss of earnings and/or earning capacity.
Prior to the accident C had suffered from dyslexia. As a result of the accident C sustained a very severe head injury, but had also made a very good recovery therefrom, such that he was left with some permanent but modest neuropsychological deficits which meant that the level of work for which he was now fit had been adversely affected to some extent. The experts agreed he was nonetheless able to work as a motor mechanic or driver.
C claimed some £220,000 in respect of future loss of earnings, submitting that a multiplier/multiplicand approach was the appropriate way to quantify any loss. His case was that whereas but for the accident he would have achieved better results at school and then gone to University, obtained a degree, and thereafter pursued a successful career in automotive design or engineering, earning on average in excess of £20,000 net p.a.; as a result of the accident he left school after obtaining lower GCSE’s; thereafter passed levels 1 and 2 of a NVQ in motor mechanics, and was by the time of the trial working as a fitter in a garage earning. He alleged his net annual residual earning capacity now was limited to about £13,000 p.a. whether as a motor mechanic or a professional driver.
D’s case was that a multiplier/multiplicand approach was inappropriate: there were too many imponderables as to (i) the likely type and pattern of his employment (C being only 12 at the time of the accident) and earnings but for this injuries and (ii) the likely pattern of his earnings now, such that the Court should limit the award to a modest lump sum of about £30,000 pursuant to Blamire v South Cumbria Health Authority [1993] PIQR Q1 (CA). As to the former, bearing in mind his dyslexia, and his consequent learning difficulties, the probability was that but for the accident he would never have gone on to study A-Levels or go to University; and it was unlikely that he would have managed to obtain the necessary academic and/or engineering qualifications to enter the design or engineering careers which he alleged he would have pursued. The probability was that but for the accident C, who was interested in cars, would have obtained work as a motor mechanic or driver or in some similar capacity; and that he was still able and likely to pursue such a career now, and therefore retained an earning capacity very similar to his probable average earnings but for the accident. His deficits were unlikely to significantly disable him from working in such careers. Any future loss of earnings and earning capacity was modest and should be reflected by a modest lump sum award.
HELD: C failed to discharge the burden of proving the claim as advanced by him. The number of uncertainties and imponderables surrounding C’s case were numerous such that the loss could not be quantified on the basis of a multiplier/multiplicand approach. It was appropriate (i) following Blamire, to award a lump sum of £40,000 in respect of C’s future loss of earnings for life and (ii) an additional lump sum of £15,000 by way of an award of Smith v Manchester damages to reflect his handicap on the open labour market. Accordingly C recovered damages of £55,000 in respect of his future loss of earnings and handicap on the labour market, and total damages of £102,000. As to costs, given that D had paid the sum of £100,000 into court, D was ordered to pay only 40% of C’s costs since the payment into court.