Bayliss v Lunt

Future loss of earnings for a young claimant injured before entering a preferred career is assessed by estimating likely lost earnings over the relevant working life. The multiplicand and multiplier are assessment tools, not actual figures that permit automatic deduction of earnings already received at the start of the period. A defendant cannot introduce specific deductions at trial or on appeal where the pleaded case merely puts the claimant to proof. Any proposed deduction must be supported by evidence addressing the claimant’s likely alternative income and circumstances. In assessing the multiplicand, the court may rely on known earnings and reject speculative prospects dependent on qualifications the claimant does not have. A costs order should not be adjusted on speculation about a hypothetical settlement offer unsupported by evidence.

The claimant, a 16-year-old schoolgirl and prominent sportswoman, was injured when the defendant negligently knocked her from her bicycle. Liability was admitted. Her knee injury prevented her from pursuing her intended career as a physical education teacher. She instead became a computer-assisted design operator.

At Birmingham County Court, His Honour Judge McKenna assessed damages, including £26,000 for future loss of earnings, based on an annual differential of £2,000 and a discounted multiplier. He made the normal order for costs. The defendant sought renewed permission to appeal, challenging the earnings calculation and the costs order. The central issues were whether the claimant’s actual early earnings should be deducted and whether the costs order should reflect a possible earlier offer.

Application dismissed. Lord Justice Buxton, with agreement from Lady Justice Hale, held as follows.

1. Future earnings assessment. The multiplicand and multiplier represented the court’s best assessment of likely lost earnings over a lengthy period. They were not actual figures from which the claimant’s earnings during the opening years could simply be deducted.
2. Proposed deduction. The defendant’s argument that the claimant’s earnings as a computer-assisted design operator during the years when she might have been at university disclosed a conceptual error. In any event, the defendant had pleaded only that the claimant be put to proof. It was not open to it to introduce specific deduction items at trial or on appeal. There was also no evidence of the income the claimant might otherwise have received as a student, including a possible grant, vacation work or parental support.
3. Amount of the multiplicand. The judge was entitled to use the lower, known salary figures. Evidence that computer-assisted design earnings might later exceed teaching earnings was speculative and depended on qualifications the claimant did not have and might not obtain. The £2,000 annual differential, applied with a discounted multiplier, was not shown to be unreasonably high and involved no error of principle.
4. Costs. The defendant’s contention that a fuller schedule of damages might have produced a higher pre-trial offer was remote and unsupported by evidence from the solicitors. A judge determining costs should not speculate about what might have occurred or guess a reduction based on such a contingency. The normal costs order was therefore proper.

Permission to appeal was refused on all grounds. The defendant was ordered to pay the costs of and occasioned by the application, subject to legal aid taxation of the claimant’s costs.

1. Court of Appeal (Civil Division) — Renewed application for permission to appeal dismissed. The court upheld the damages judgment and normal costs order made below.
2. Birmingham County Court — His Honour Judge McKenna delivered judgment on damages on 12 October 2001, awarding £26,000 for future loss of earnings and making a normal costs order.