Williams v Green

Future loss of earnings must reflect the real prospect of a claimant obtaining hypothetical employment, rather than treating that outcome as certain where it depends on the decision of a third-party employer. The court must assess the chance by weighing all relevant evidence, including qualifications, work history, disability, likely progression and the effect of the claimant’s condition on the hypothetical appointment process. The assessment is necessarily evaluative. It should not be reduced to either absolute certainty or an unduly pessimistic estimate.

Liability for the claimant’s road accident injuries was admitted. The Newcastle upon Tyne County Court assessed damages, including future loss of earnings, first at £29,608 and later at £163,523.77 after revising its reasoning about the effect of the claimant’s pre-existing spinal degeneration and the likely duration of her teaching career.

The claimant, a deputy headteacher, contended that the recorder had wrongly treated her obtaining a headship in September 2003 as certain. The appeal concerned whether her future earnings should instead be assessed by reference to the chance of securing that post, and what percentage chance was appropriate.

1. The appeal was allowed to the extent that the assessment of future loss of earnings was varied. The recorder had taken account of the claimant’s back condition, but had approached the prospect of her obtaining a headship as a certainty. Both parties accepted that the proper approach was to assess the chance or prospects of her obtaining the post.
2. The assessment required the court to weigh the competing considerations in the hypothetical situation. Relevant matters included the claimant’s quality as a teacher, her qualifications and ambition, her previous success in obtaining promotion, her continuing back pain and its likely progression, the physical and administrative demands of headship, and the effect of her condition on the hypothetical appointment board.
3. The claimant’s evidence and medical history pointed against certainty, while her strong candidature, prior achievement and ability to cope with back pain supported a substantial prospect of success. The appropriate assessment was a 60 per cent chance of obtaining a headship in September 2003.
4. The resulting damages were to be calculated by the parties on that basis. The recorder’s judgment was varied so that judgment was entered for the claimant in the sum of £23,806.81. Costs below remained undisturbed. Appeal costs were apportioned by reference to the respondent’s Part 36 offer.

• Newcastle upon Tyne County Court: the recorder assessed future loss of earnings initially at £29,608 and, on revision, at £163,523.77.
• Court of Appeal (Civil Division): the assessment was varied to reflect a 60 per cent chance of obtaining a headship, with judgment entered for the claimant in the sum of £23,806.81.