Bahia v S P Tyres (UK) Ltd

In assessing future loss of earning capacity, a trial judge may use the claimant’s pre-injury earning capacity as the basis for the multiplicand and deduct the claimant’s post-injury earning capacity. Employment-market uncertainties may be reflected in the multiplicand, multiplier or a lump-sum assessment, but the choice remains evaluative. An appellate court will not interfere merely because another judge might assess those uncertainties differently. Where an experienced judge has considered the evidence and reached a reasonable conclusion, permission to appeal should be refused unless an arguable error is shown.

The claimant brought a personal injury action against his employers after developing tennis elbow through his working conditions. Medical evidence indicated that repetitive use of the arm and heavy lifting would cause recurrence and disadvantage him on the open labour market.

His Honour Judge Perrett QC assessed loss of earning capacity by using earnings for the claimant’s pre-injury work as the pre-accident capacity, deducting his post-accident capacity based substantially on his current earnings, and applying a full multiplier. The defendants sought permission to appeal, arguing that the assessment failed to allow for employment-market uncertainty, redundancy and possible increased skills. The central issue was whether the judge’s method and conclusion were arguably wrong.

Permission to appeal refused.

1. The assessment of future earning capacity is necessarily uncertain and evaluative. A judge may use the claimant’s pre-injury earning capacity as the starting point for the multiplicand and deduct the assessed post-injury earning capacity.
2. The uncertainties of the employment market may justify a lump-sum approach or an adjustment to the multiplicand or multiplier. They do not require a particular method of assessment in every case.
3. The judge had considered the relevant arguments, including possible redundancy and future changes in earning capacity. He was entitled to regard the claimant’s current earnings as an appropriate basis for assessing his earning capacity and to take account of the medical evidence showing a significant reduction caused by the injury.
4. The Court of Appeal would not interfere simply because another judge might have made a different assessment of employment-market uncertainties. No arguable error in the judge’s approach or ultimate conclusion was established. Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): On 9 November 2001, the application for permission to appeal was refused: [2001] EWCA Civ 1784.
• Lower court: His Honour Judge Perrett QC made the relevant order on 13 July 2001 in the claimant’s personal injury action.