Lord Chancellor v Coker

In assessing future loss of earnings for a personal injury, a trial judge may adopt the claimant’s pre-injury earning capacity as the multiplicand and assess post-injury capacity by reference to actual earnings. The judge must evaluate medical evidence and the uncertainties of the employment market. An appellate court will not interfere merely because another judge might have made different allowances for redundancy, labour-market risks or future improvements in skills. It must be shown that the trial judge’s assessment was wrong in a manner likely to justify appellate intervention.

This was an employer’s application for permission to appeal from an order of His Honour Judge Perrett QC dated 13 July 2001 in a personal-injury action.

The claimant had developed tennis elbow through conditions of employment. Medical evidence showed that repetitive or forceful use of the arm and heavy lifting could cause symptoms to recur. The employer accepted fault, but challenged the assessment of future loss of earnings.

The judge used the claimant’s pre-injury earning capacity and post-injury earning capacity to calculate a future loss of £114,000. The proposed appeal argued that insufficient allowance had been made for labour-market uncertainty, expected redundancy and possible future increases in earning capacity.

1. Permission to appeal was refused. Lord Justice Latham held that the proposed grounds did not show that the trial judge’s conclusion was one with which the Court of Appeal would be likely to interfere.

2. The trial judge was entitled to treat the earnings for the claimant’s former work as the appropriate measure of pre-injury earning capacity. He was also entitled to use a figure broadly corresponding to the claimant’s actual earnings at the hearing as the measure of post-injury earning capacity.

3. The medical evidence established a significant and continuing restriction on earning capacity. Repetitive work, forceful use of the hands and heavy lifting could cause the symptoms to recur. That evidence supported the judge’s assessment that the injury materially reduced the range of work available to the claimant.

4. The employer’s arguments about future redundancy, employment-market uncertainty and possible improvement in skills had been available at trial. The judge was experienced, had heard those arguments and had assessed the claimant personally. A different possible view of future labour-market contingencies did not make his assessment erroneous.

5. Although a lump-sum assessment or an adjustment to the multiplier or multiplicand would have been open to the trial judge, neither was required. The assessment of future earning loss in an inherently uncertain field remained within the judge’s permissible evaluative judgment.

• Court of Appeal: Permission to appeal was refused.
• County Court: His Honour Judge Perrett QC, by an order dated 13 July 2001, assessed damages in the claimant’s personal-injury action, including £114,000 for future loss of earnings.