Langford v Hebran & Anor

Damages may compensate for real, rather than fanciful, lost career opportunities without proof that any particular outcome would have occurred on the balance of probabilities. This method is not confined to a single opportunity.

Where opportunities represent successive stages of advancement, the court must assess them logically. The prospect of reaching a later stage cannot exceed that of reaching a necessary earlier stage. Each award should reflect the chance of obtaining the additional earnings attributable to that stage. A further evaluative discount may be required for the possibility that none of the opportunities would have arisen.

An appellate court should not alter an assessment of damages merely because it would adopt a different method where the resulting difference is comparatively small and the award is not entirely erroneous.

The claimant suffered injuries in an admitted-liability road traffic accident. The injuries prevented him from continuing at the highest level as a professional kick-boxer and from working as a hod carrier or bricklayer. Klevan J awarded total damages of £423,133, including substantial sums for past and future loss of earnings.

The defendants appealed against the earnings awards. They challenged the assumptions underlying the claimant's basic earnings claim and the valuation of four progressively more successful kick-boxing career scenarios. They also contended that the judge should have used a broad assessment instead of assigning percentages to the individual lost opportunities.

The central issues were whether separate percentage-based awards could properly be made for successive career opportunities, whether the probabilities and earnings had been calculated logically, and whether any errors justified appellate interference with the award.

1. Appeal dismissed. Ward LJ delivered the judgment of the court. Although the court identified errors in the method by which the lost opportunities had been evaluated, its recalculation reduced the relevant award by only about 4.6 per cent. The trial judge's award was not entirely erroneous, and the Court of Appeal declined to make so small an adjustment.

2. The basic earnings claim was sufficiently supported by the evidence. Limiting bricklaying work to 26 weeks annually during the claimant's fighting career fairly reflected his employment history. The accident prevented him from undertaking the manual occupations he knew, and the assumed residual earning capacity was reasonable. The Ogden multiplier for risky occupations adequately reflected building-site risks. No additional reduction for the risks of kick-boxing was required.

3. The percentage-based lost-opportunity approach approved in Doyle v Wallace [1998] PIQR Q146 was not confined to a single opportunity. A broad assessment would not have produced a fair result. The proper process was to identify each opportunity, assess its prospect of realisation, value the likely benefit, and perform the resulting calculation.

4. The trial judge's assigned probabilities were logically flawed. Each later scenario depended upon achievement of the preceding stage. The prospect of reaching the first stage therefore had to exceed the prospect of reaching the second. The Court of Appeal substituted probabilities of 80 per cent, 66 per cent, 40 per cent and 20 per cent for the four successive stages.

5. There was no mathematical double counting in the accountant's original model because the allocated percentages were limited in aggregate to 100 per cent. Nevertheless, the clearer method was to value each successive stage by reference to the additional earnings over the preceding stage and then apply the probability of achieving that advancement. The projected American instructor earnings were also excessive and were reduced by one-third.

6. A further discount was necessary because the basic claim already contained favourable assumptions and none of the alternative career scenarios might have occurred. That discount was a matter of judgment, not pure mathematics. The court applied a further 20 per cent reduction to future loss of earnings, while recognising the strong evidence of the claimant's prospects.

7. The trial judge possessed the advantage of testing the arithmetic against the overall feel of the case. An appellate court should not ordinarily interfere with an assessment of damages unless the awarded figure is entirely erroneous. The appeal was dismissed with costs at the standard rate, with statutory interest on the judgment sum.

1. Court of Appeal (Civil Division): The defendants' appeal was dismissed. The court identified methodological errors in evaluating successive lost career opportunities but declined to disturb the award because its own calculation produced only a comparatively small reduction.

2. High Court, Queen's Bench Division: Klevan J gave judgment on 15 October 1999 and awarded the claimant damages of £423,133 for personal injuries arising from an admitted-liability road traffic accident.