Ward v Allies and Morrison Architects

The conventional multiplicand and multiplier method, supported by the Ogden Tables, should normally be used to assess future loss of earnings. A broad-brush award remains appropriate where the evidence leaves too many imponderables to establish the claimant’s probable career, earnings, residual earning capacity or any continuing loss.

The claimant bears the burden of proving both the probable earnings without the injury and the probable earnings after it. Classification as disabled does not determine whether the Ogden method must be used. Under the relevant Ogden classification, all three disability conditions must be satisfied.

The appellant suffered serious injuries to two fingers while working as a model maker on a short placement with the respondent architects. Liability was no longer in issue. Following a trial of damages, HHJ Cleary awarded £30,000 for future loss of earnings using the broad-brush approach in Blamire, £4,000 for psychiatric injury and £19,750.74 for past loss of earnings.

The appellant challenged the use of the broad-brush approach, contending that the conventional multiplicand and multiplier method and the sixth edition of the Ogden Tables should have been used. She also contended that she was disabled for Ogden purposes and challenged the assessments of psychiatric injury and past loss of earnings.

1. Appeal dismissed unanimously. The trial judge was entitled to assess future loss of earnings by the broad-brush approach in Blamire v South Cumbria Health Authority [1993] PIQR Q1.

2. The multiplicand and multiplier method and the current Ogden Tables should normally be used unless the judge genuinely has no alternative. To use that method, the claimant must prove, on the balance of probabilities, the probable pattern and amount of earnings without the injury and the probable earnings after it. The trial judge was entitled to find too many imponderables concerning the appellant’s prospective career, remuneration, residual abilities and whether she would suffer any future earnings loss. The evidence therefore did not permit a reliable mathematical assessment.

3. Whether a claimant is disabled for Ogden purposes does not determine whether the conventional method must be used. The Ogden guidance itself recognises that a Smith v Manchester or Blamire award may remain appropriate where precise calculation is unsuitable. In any event, the appellant did not satisfy all three conditions of the Ogden disability classification. The judge’s findings did not establish that her condition affected the kind or amount of paid work she could undertake.

4. The psychiatric award was upheld. An appellate challenge to findings about the nature and extent of psychiatric pain, suffering and loss of amenity required a demonstration that the findings lay outside the bounds reasonably available on the evidence. The trial judge accurately recorded the expert and lay evidence and reasonably found that the appellant had experienced post-traumatic stress disorder for four months. The £4,000 award fell within the applicable guideline range for minor post-traumatic stress disorder.

5. The past earnings award was also upheld. Compensation for loss of earning capacity does not require an award for periods during which the claimant would probably have had no employment. The judge could reasonably allow for an initial period of seeking work and for the intermittent nature of freelance employment. An assumed annual income of £17,000 was within the evidential range.

• Court of Appeal (Civil Division): Dismissed the appellant’s appeal and upheld the awards for future loss of earnings, psychiatric injury and past loss of earnings.
• Coventry County Court: HHJ Cleary conducted a trial of damages and awarded, among other sums, £30,000 for future loss of earnings, £4,000 for psychiatric injury and £19,750.74 for past loss of earnings.