Magnay v Corbishley

In assessing future earnings and pension loss, the court should use the standard approach where medical evidence permits a best estimate of the age at which accident-related disability will force retirement. It should identify the most likely retirement age on the balance of probabilities, calculate the resulting period of loss, and discount for acceleration and contingencies. Medical uncertainty does not by itself require a broad-brush lump sum for loss of a chance. An approximate range or midpoint may provide a sufficient evidential basis. An appellate court will not interfere where the trial judge has explained the calculation and applied the standard approach.

The claimant, a National Health Service doctor, recovered damages in the Chester County Court after suffering injuries in a road traffic accident. The assessment included future loss of earnings and future loss of pension rights.

The trial judge found that the claimant would have worked to age 65, but that accident-related disc degeneration and possible cervical spondylosis were likely to cause retirement at about age 60. The defendant sought permission to appeal, arguing that the medical evidence was too uncertain for that assessment and that damages should instead reflect a broad-brush loss of chance. The central issue was the proper method of assessing future loss where the evidence forecasts an uncertain retirement date.

Lord Justice Kay refused permission to appeal. The proposed appeal challenged the assessment of future loss of earnings and pension rights.

1. Standard assessment. Where the court can make a best estimate of when an accident will force a claimant to stop work, it should determine the most likely retirement age on the balance of probabilities. It should then calculate the difference between the claimant’s expected retirement age without the accident and the estimated retirement age after it.
2. Allowance for uncertainty. The medical evidence was necessarily imprecise because it concerned events many years in the future. That did not make the standard approach inappropriate. The expert’s estimate that retirement would occur at about age 60, allowing for a range of one or two years either side, was sufficient to support the judge’s conclusion. The uncertainty was properly addressed through discounts for acceleration and other contingencies.
3. Application and review. The judge had allowed for acceleration and applied a further 20 per cent discount for uncertainties arising during the relevant eighteen-year period. Lord Justice Kay considered that approach standard and the discount incapable of challenge on the evidence. There was no proper basis for appellate interference.

The application was refused. There was no order for costs.

• Court of Appeal (Civil Division): Lord Justice Kay refused the defendant’s application for permission to appeal and made no order for costs.
• Chester County Court: His Honour Judge Gareth Edward QC assessed damages, finding that the claimant would probably have worked to age 65 but was likely to retire at about age 60 because of the accident.