Johnson v Warren

A Smith v Manchester award compensates the risk that residual accident-related disability will cause future unemployment or lower-paid employment, despite the claimant having no present loss of earnings. The risk must be real and attributable to the disability. No award is justified where suitable, less physically demanding work is freely available and the claimant’s residual restrictions do not materially limit employment opportunities. A finding that the claimant’s own settled attitude means she will not seek work may also defeat the claim, although the court’s decision was sufficiently supported by the availability of suitable work.

The claimant appealed against the quantum decision of His Honour Judge Raynor QC in the Salford County Court following a road traffic accident in December 2000. Liability was admitted. The dispute concerned future loss of earnings, future care and, in particular, whether her residual physical and psychological symptoms justified a Smith v Manchester award for disadvantage on the labour market.

The judge found that she was fit for clerical work, that such work was freely available through public transport, and that she would have been working approximately 25 hours a week but for her belief that she was unfit for work. He made no Smith v Manchester award. The central issue was whether those findings adequately disposed of the future loss-of-earning-capacity claim.

1. Appeal dismissed. The Court of Appeal unanimously upheld the refusal to make a Smith v Manchester award.
2. A Smith v Manchester award is appropriate where there is a real risk that, during the claimant’s remaining working life, residual accident-related disability will cause unemployment or poorer-paid employment when, without the disability, the claimant would be working or in better-paid employment. The absence of present or continuing loss of earnings does not by itself answer the question of future labour-market disadvantage.
3. The judge was entitled to conclude that there was no such real risk. The claimant remained fit for clerical and equivalent work, which was freely available to her and accessible by public transport. Her inability to undertake heavy lifting or equivalent physical work therefore did not materially restrict her employment opportunities so as to justify an award.
4. Lord Justice Hughes also treated the judge’s finding that the claimant was likely indefinitely to regard herself as unfit for work as independently fatal to the claim. Lord Justice Sedley considered that finding unsupported by the evidence, but agreed that the availability of suitable work justified dismissal. Lord Justice Auld agreed with both reasons, describing the restriction as minimal and accepting that the claimant’s attitude meant that the award would not arise for consideration.

The court therefore found no proper basis to interfere with the judge’s conclusion and ordered: appeal dismissed.

• Court of Appeal (Civil Division): [2007] EWCA Civ 595 — appeal from the Salford County Court dismissed.
• Salford County Court: His Honour Judge Raynor QC refused a Smith v Manchester award in the assessment of damages. No separate citation is stated in the judgment.