Smith & Anor v Collett

In valuing damages for a lost chance of future earnings, a court may identify the most probable career path and apply an overall discount for contingencies, provided it accounts for both the risk of a worse outcome and the possibility of a better one. The discount need not be expressed as separate percentages for each stage of the career. A trial judge’s assessment of risk is evaluative and attracts restrained appellate review. Future earnings may be estimated from the best material available, including expert opinion, published salary data, historical trends and reasonable cross-checks. An award will stand unless the assessment is shown to be manifestly wrong.

Liability for a serious footballing injury suffered by Ben Collett during a professional reserve-team match was admitted. The issue on assessment was the value of his lost chance of a professional football career and the resulting loss of future earnings. Swift J awarded total damages of £4,577,323, including £3,854,328 for future loss of earnings. The defendants appealed, challenging the judge’s approach to the lost chance, the 15 per cent discount for contingencies, the estimated salary increase for 2008/09, and the 25 per cent uplift for an upper-end Championship club. The central questions were whether the judge had properly valued the chance and whether her assessments were unsupported or manifestly wrong.

Appeal dismissed. The award made by Swift J was confirmed.

1. Smith LJ held that the judge understood that her task was to assess the chance lost through the injury. The evidence that the claimant would have reached at least Championship level, and would have played for an upper-end Championship club, was exceptionally strong. The judge was entitled to regard the risk of failure to reach that level as small and to deal with it within an overall discount for contingencies.

2. The judge had also taken account of the risk that the career might be cut short and the possibility that it might not develop as expected. She was entitled to balance those risks against the possibility of a more successful career. The predicted Premiership earnings were substantially higher than Championship earnings, so a small increase in the chance of Premiership success could materially offset a larger risk of failing to achieve the predicted Championship career. The 15 per cent discount was therefore reasonable and was not a basis for appellate interference.

3. The judge was entitled to estimate current and future football earnings from the best available evidence. That included published salary surveys, Deloitte wage-cost data, expert evidence and a comparison with the salary of a contemporary player. The absence of direct evidence of the most recent increases did not prevent a reasoned estimate. The judge could accept an expert’s evidence on one issue while rejecting other parts of it.

4. The evidence also amply supported the 25 per cent uplift for an upper-end Championship club, including the wage-cost table for Championship clubs and the cross-check against an actual player’s salary. Hughes LJ agreed. Carnwath LJ also agreed, noting the special facts and exceptionally strong evidence, and referred to conventional principles applied in cases such as Langford v Hebran [2001] PIQR Q160. Criticisms mentioned in McGregor on Damages, including a reference to Gregg v Scott [2005] 2AC 176, were not relied upon by either party.

1. Court of Appeal (Civil Division): The appeal was dismissed and Swift J’s award was confirmed.
2. Manchester District Registry: Swift J assessed damages on 3 October 2008 and awarded £4,577,323, including £3,854,328 for future loss of earnings.