Samuels & Anor v Benning

In assessing damages for future loss of earnings, a claimant’s failure to mitigate loss does not eliminate the claim. The defendant must establish what reasonable steps the claimant should have taken, although the issue remains one of fact. Where the evidence does not permit a reliable multiplier-and-multiplicand calculation, the court may award a single sum for reduced competitiveness in the labour market. A claimant need not prove complete unemployability. The court may also assess the value of lost capacity to perform domestic do-it-yourself work by reference to a reasonable annual value and multiplier. An appellate court should generally respect a trial judge’s assessment of general damages where it falls within the permissible range.

The claimant appealed against a judgment of His Honour Judge Rice in the Southend County Court. Liability for a road accident had been admitted, and the appeal concerned quantum only. The judge awarded damages for pain, suffering and loss of amenity, past financial loss and one year’s future loss of earnings, but made no award for future loss after July 1999. He also allowed only the conceded sum for past do-it-yourself work and rejected the claim for future such work.

The claimant challenged the assessment of past earnings, the treatment of lost do-it-yourself capacity, the award of general damages, and the rejection of continuing future earnings loss. The central issues were mitigation, the evidential basis for calculating future earnings loss, and the appropriate method of valuing reduced employability.

1. Appeal allowed. The Court of Appeal varied the award by allowing an additional £5,000 for future loss of capacity to undertake do-it-yourself work and £35,000 for reduced future employability.
2. The judge was entitled to award £12,767 for the period from July 1998 to July 1999. The evidence contained too many uncertainties to establish the higher figure claimed, and the judge’s conclusion was fair and properly open to him.
3. A claimant’s failure to mitigate loss is a question of fact. The defendant bears the burden of showing what reasonable course the claimant should have pursued. Failure to mitigate does not bar the whole claim for future loss.
4. The claimant had established a significant future deficit in employability, but had not proved either complete unemployability or a continuing earnings loss capable of calculation by a conventional multiplier and multiplicand. The evidence did not establish a realistic future employment and earnings position.
5. In those circumstances, following the approach in Smith v Manchester Corporation [1975] 17 KIR 1, justice required a single sum reflecting substantially reduced competence in the labour market.
6. The court awarded £5,000 for future do-it-yourself capacity, using a multiplicand of £500 and a multiplier of 10. The judge’s £20,000 award for general damages was low but within the range properly open to him and was left undisturbed.

• Court of Appeal (Civil Division): appeal from the judgment of His Honour Judge Rice, sitting as a Deputy Circuit Judge in the Southend County Court, dated 31 May 2001. The appeal was allowed and the damages award varied.