March 27, 2015

Large Loss - Middleton v Ipswich Hospital NHS Trust (High Court)

The High Court found that in a case of a 13 year old child it was appropriate to use the Ogden 7 approach to calculate future loss of earnings rather than use a Blamires type lump-sum award.

The Claimant brought a claim for damages alleging clinical negligence following a significant brachial plexus injury to Claimant's right upper limb as a result of the circumstances of his birth in 2002. As a result of the Defendant's negligence, the Claimant was left with a right arm that was significantly smaller and shorter than his left arm, with reduced ranges of motion and very little movement in the right shoulder.

The Orthopaedic experts agreed that the Claimant would be permanently and severely handicapped in relation to activities around the house, for DIY and on the open labour market, and would essentially work in a one-handed fashion. It was agreed that he was likely to get average GCSEs and then progress to some kind of vocational study.

However, there was a dispute between the parties as to the method for calculating the Claimant's future loss of earnings.

The Defendant contended that a lump sum should be awarded on the basis of the decision in Blamire, given the number of imponderables surrounding the Claimant's future career progression.

In contrast the Claimant argued that he would plainly be compromised on the labour market, both in terms of his ability to achieve a career in a wide range of fields and in terms of obtaining and retaining employment. Further, whilst it was accepted that his academic limitations would themselves limit his options in any event, such that he would have been looking at practical and/or vocational occupations, his range of choice within that practical/vocational range of options had been further limited as a result of his injury. The Claimant therefore sought an award on the traditional multiplier/multiplicand basis.

His Honour Judge McKenna did not accept the submissions of the Defendant and found that this was exactly the type of case where the Ogden 7 approach was appropriate and awarded future loss of earnings on that basis.

COMMENT:

  • The key to achieving a Blamire award is uncertainty over what the Claimant would have earned had he not been injured and what he will now earn in light of his injury.
  • One would have thought that there would be no situation more uncertain than one involving a 13 year old boy; however Courts are reluctant to depart from the well-established Ogden methodology unless they really have no alternative.
  • In this case, it was perhaps as a result of the Claimant's limited academic ability as well as his disability that narrowed down sufficiently his range of vocational options, to create a semblance of certainly over his likely future earnings.
  • In order to identify areas of uncertainty one needs to consider a Claimant's track record of earnings, medical history, career intentions, plans to start a family and market forces/economic factors when arguing for a Blamire award. Bearing in mind that the clear preference is for Ogden 7 assessment then we must always be mindful to gather evidence to suppress the multiplier and multiplicand in the alternative so as not to be held to ransom if our primary argument fails.