Van Wees v Karkour & Anor

In assessing damages for uncertain future loss, the court must make the best informed assessment available from the evidence. A conventional multiplier-and-multiplicand calculation is inappropriate where career progression, earnings, retirement and international employment involve numerous imponderables. A broad-brush lump-sum assessment remains evidence-based and must reflect probabilities, possibilities, contingencies and retained earning capacity. Compensation is limited to loss caused or materially contributed to by the tort. Current or historical gender-based pay differences should not simply be projected indefinitely where statutory equal-pay rights and narrowing disparities are relevant.

The claimant suffered a head injury as a pillion passenger in a road traffic accident. Liability for some loss was accepted, but the defendants disputed the extent of injury, causation and the claimed loss of a potentially highly remunerated career.

The court considered the claimant’s organic and psychological symptoms, the effect of a later road accident, the reasons for the loss of her employment with Vodafone, her hypothetical uninjured career, future earnings, pension loss and general damages. The central issues were the extent to which the first accident caused continuing loss and the appropriate method of assessing uncertain career-based damages.

1. Liability and causation. The first accident caused a moderate head injury, subtle organic brain damage, reduced memory capacity and associated psychological reactions. The later accident caused no lasting neurological impairment and was not causative of the claimed losses. The claimant’s loss of employment at Vodafone had mixed causes. Her management style and limited corporate-finance background were the principal causes, but the accident-related loss of edge materially contributed to the dismissal.
2. Loss caused by the tort was compensable, but the claimant could not recover for depression or other consequences attributable solely to disappointment in failing to achieve her self-image. The court applied the causation principles in Bonnington Castiongs v Wardlaw [1956] AC 613, McGhee v National Coal Board [1973] 1 WLR 1, Thompson v Smiths Shiprepairers (North Shields) Limited [1984] Q.B. 405 and Holtby v Brigham & Cowan (Hull) Ltd. [2000] ICR 1086.
3. Assessment of earnings. The conventional multiplier-and-multiplicand method was inappropriate because the claimant’s career path, promotion prospects, international work, salary progression and retirement age were highly uncertain. Following the approach discussed in Blamire v Cumbria Health Authority [1993] PIQR Q1, the court made an informed broad-brush assessment, guided but not controlled by the available earnings evidence. The award had to credit termination benefits and actual earning capacity.
4. The court declined to perpetuate existing gender-based pay differences throughout the claimant’s working life. It took present disadvantage into account but recognised the effect of the contractual equal-pay term under the Equal Pay Act 1970, section 1, and the expected narrowing of the pay gap.
5. The claim succeeded. Damages were assessed at £1,105,012.50, together with interest on pre-trial losses.

First instance judgment. No earlier appellate decision is stated in the judgment.