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Ronan v J Sainsbury Plc, Court of Appeal, 6 July 2006

23 August 2006
The issues

Smith v Manchester; Blamire v South Cumbria Health Authority; loss of opportunity on the labour market; whether Claimant’s decision in personal injury action not to abandon studies could be characterised as a failure to mitigate his loss.

The facts

The Claimant suffered an accident in December 1999 when a student working part-time in one of the Defendant’s stores. He was 19 at the time of the accident. He broke his left femur. The femur was repaired. There followed attempts at rehabilitation despite the onset of a degree of Post Traumatic Stress. Twenty months after the accident a further operation removed the screws that had been put into the leg but failed to remove the long intramedullary nail. After the operation the Claimant had more difficulties including breakdown of the wound and apparently secondary to the antibiotics irritable bowel problems resulting in a colonoscopy. He used a crutch for well over a year after the second operation. He became depressed. At the time of the accident he was in the course of a one year foundation study at an Art College with a view to going on to a University Degree, probably to do something such as graphic design. The Claimant decided over the summer after the accident not to go to University but instead went to work for Abbey National as a branch Customer Manager. He started there in August 2000. A year after the Claimant went back to work at the Abbey National, after the follow up operation, still on crutches. Then followed the complications of the bowel troubles and the depression and eventually he decided not to go back to Abbey National but rather to enrol at Middlesex University to read sports rehabilitation and injury prevention. At the time of the Trial he had just completed his Degree. It was six years on. The Claimant hoped to teach Physical Education but wanted a second string to his bow in Special Needs Education. He had a job as a learning support assistant and he proposed to follow it up with a one year Post Graduate Certificate of Education course to qualify as a teacher. He had spent the academic years 2002/2003 to 2004/2005 taking his Degree. He claimed past loss of earnings for those three years. The Defendants argued that his absence for employment during those three years was the result of a voluntary career change. The Judge found that it was recoverable as a loss as against the Defendant.

The Claimant’s earnings as a teacher were, as at the date of Trial, likely to be less than his potential earnings had he stayed in banking. He claimed therefore a future loss of earnings. The Defendant’s case was that the Claimant was able to resume his career in retail banking if he chose and that if he chose to do something different that was not as a result of the accident. The Judge, applying a broad brush approach, awarded £50,000.00 in respect of the Claimant’s future earnings, to make allowance for the upheaval in his life.

The Defendant appealed.

The decision

The Judge had had access to the Claimant. He had seen him, heard what he had said and had seen the way it had been put. Notwithstanding medical evidence the Judge was entitled to conclude that the Claimant’s evidence was truthful and accurate and that the reason for his failure to go back to the Abbey National was in connection with his post accident problems. The Claimant’s evidence had been that he had missed his opportunity at the Abbey National and that he did not have the confidence that he would have needed to do the job. In particular his confidence in talking to people was, according to the Claimant, shattered. The Judge found that the Claimant’s decision had been a reasonable one attributable to the consequences of the persisting effect of the accident. His decision could not be seen as an unreasonable failure mitigate his loss.

With regard to future loss the Judge had indicated that he had felt that he ought to make some allowance in monetary terms for the upheaval in the Claimant’s life, whether by Smith v Manchester or “in a Blamire sense”.

Blamire awards and Smith v Manchester awards may be combined but they are quite distinct. A Blamire award is appropriate where the evidence shows that there is a continuing loss of earnings, but there are too many uncertainties to adopt the conventional multiplier and multiplicand approach to its quantification.

A Smith v Manchester award has nothing to do with a continuing loss. It is an award for a contingent future loss in the event of the Claimant losing his current job where, as a result of the accident, he would then be at a handicap on the labour market at which he would not have been but for the accident.

The Claimant’s choice of teaching career was one which reflected credit upon him but was, on the evidence, one of his own free choice and not one required by the accident. It was difficult to see how, on the evidence, the Judge could possibly have concluded that there existed any continuing loss of earnings attributable to the accident which fell to be approximated via the Blamire process.

The solitary respect in which there may have been a loss of earnings projecting into the future was on the basis that if the Claimant had returned to the Abbey National he would not immediately have been a Financial Advisor which he would have been but for the accident. It would have taken him something between a year and eighteen months to achieve that position. In the meanwhile there would have been, even without the career change, a short fall in earnings. The assessment of this loss was never made by the Judge because the point was never addressed. The evidence demonstrated that the relevant short fall was at a rate of £9,500.00 per annum net, and in those circumstances for the year to eighteen month period in question, the sum of £12,000.00 would be awarded. There was also a pension loss in respect of which an award of £1,800.00 would be made.

In respect of handicap on the labour market, the risk of losing a teaching job was not high. If he were unable to carry on as a Physical Education Teacher he would have the alternative roles of Special Educational Needs and perhaps Performance Art teaching. The risk of his not obtaining a replacement job of either kind in teaching was not particularly high. As to his handicap he would have to declare a past episode of depression which lasted for some time. That might lower him down the short list. A proper award would be £15,000.00.

Appeal dismissed in respect of the Judge’s award for past loss; appeal allowed in respect of the award of £50,000.00 which would be replaced with an award of £28,000.00 made up of a £15,000.00 Smith v Manchester award, £12,000.00 loss of earnings whilst catching up and £1,800.00 loss of pension.

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