Heil v Rankin

When assessing prospective earnings loss, the court must allow for contingencies affecting the particular claimant’s likely working life. A foreseeable risk of a future tortious event may be such a contingency. The special rule which disregards an actual later tort in a claim against the first of successive tortfeasors is confined to preventing under-compensation. It does not create a general rule that future tortious risks must be ignored.

A loss-of-chance assessment must accord with the evidence and findings. Once the relevant chance has been discounted, the multiplier for future loss must not make the same discount again.

The claimant, a police constable, was injured when the defendant driver struck him in 1993. Liability was admitted. The incident temporarily exacerbated post-traumatic stress disorder which had originated in a much more serious 1987 incident.

A deputy judge in the Queen’s Bench Division awarded total damages of £32,837.51, including £6,000 general damages. He assessed past and future police earnings by allowing a 25 per cent prospect that, but for the 1993 incident, the claimant would have remained employed until retirement. The claimant appealed the general-damages award, the assessment of earnings, the multiplier, post-retirement earning capacity, and interest.

The central issue was whether the risk of a future tortious trigger event had to be disregarded when valuing the claimant’s lost chance of continued employment.

Appeal allowed in part. The court’s judgment was delivered by Otton LJ as the decision of the court.

1. The deputy judge was entitled to treat the claimant’s future exposure to trigger events as a vicissitude when assessing prospective police earnings. The governing objective is to compensate the claimant fully, but no more than the tort caused him to lose. The court rejected the proposed general rule that a prospective tortious act by a third party must always be ignored.

   Baker v Willoughby [1970] AC 467 and Jobling v Associated Dairies [1982] AC 794 concern the pragmatic, exceptional treatment of an actual later tort in successive-tort cases. That rule prevents the combined operation of ordinary rules from leaving the claimant under-compensated. It did not apply where disregarding a likely future trigger event would over-compensate the claimant. The court distinguished the factual context of the obiter passage in Wynn v NSW Insurance Corporation (1995) 184 CLR 485 and stated that it could not accept any broader rule excluding tortious risks from future-vicissitudes assessment.

2. The £6,000 award for pain, suffering and loss of amenity was upheld. The 1993 incident caused a temporary exacerbation, depression and moderate PTSD, but the major and long-term features of the condition stemmed from the 1987 incident. The classification and amount were open to the deputy judge on the evidence.

3. The 25 per cent assessment of the claimant’s chance of working to retirement was inconsistent with the findings, medical evidence and work history, and was unjustly low. The court substituted a 50 per cent assessment. It declined to increase the chance to 75 per cent and did not remit the matter.

4. The multiplier of four for future earnings could not stand. If it reflected the earlier chance discount, it duplicated that deduction; otherwise it was unsupported by the applicable tables. The court substituted a multiplier of five.

5. No award was made for post-retirement earning capacity. The proposed teaching-income claim was unpleaded and speculative, and the evidence did not justify a conventional Smith v Manchester award. The interest challenge also failed. There was no order as to costs.

• Court of Appeal (Civil Division). By [2000] EWCA Civ 187, allowed the claimant’s appeal in part, varying the loss-of-earnings percentage and multiplier while dismissing the remaining grounds.
• High Court, Queen’s Bench Division. On 19 February 1998, a deputy judge assessed damages after liability had been admitted, awarding total damages of £32,837.51.