Billett v Ministry of Defence

In assessing future loss of earning capacity, the Ogden Tables are admissible evidence but are not mandatory. The court must assess the individual claimant and may adjust the reduction factor where an unadjusted statistical result would plainly overstate or understate the loss.

A claimant is “disabled” for this purpose where the three conditions in the Ogden explanatory notes are met. “Substantially” means more than minimal. A traditional lump-sum approach remains appropriate where the uninjured career path is materially uncertain. Where the career path is sufficiently identifiable, the court may use the multiplier-and-multiplicand method with an evidence-based adjustment.

The claimant suffered a non-freezing cold injury to his feet during military exercises. The defendant admitted liability for 75% of the resulting damages. The issues included the extent of the injury, the reason for the claimant’s departure from the Army, general damages, and the proper method of valuing future loss of earning capacity.

The court found that the injury did not extend to the claimant’s hands and that he left the Army for family and civilian employment reasons rather than because of the injury. The central issue was whether the Ogden Tables’ disability reduction factors should be applied without adjustment, adjusted, or replaced by a traditional lump-sum assessment.

1. Disposition. Judgment was entered for the claimant in the sum of £127,956.45, including interest. Losses dependent on the claimant having left the Army because of the injury were rejected.
2. Causation and employment claims. The claimant would have left the Army when he did even without the injury. His claims for lost military earnings, loss of congenial employment, pension loss and related housing and benefits losses therefore failed.
3. Ogden Tables. Section 10 of the Civil Evidence Act 1995 made the actuarial tables and explanatory notes admissible, but did not require their mechanical application. The explanatory notes were the primary evidence and permitted adjustment of the reduction factors where appropriate.
4. Disability. Applying paragraph 35 of the seventh-edition explanatory notes, the claimant had a lasting physical impairment, an impact which substantially limited normal day-to-day activities, and a condition affecting the kind of paid work he could do. “Substantially” meant more than minimal. He was therefore disabled for the Ogden methodology, although only marginally so.
5. Assessment method. A traditional lump sum was unsuitable because the claimant’s likely career in transport or logistics was sufficiently identifiable. The court used the multiplier-and-multiplicand method and adjusted the reduction factor to 0.73, reflecting the minor impairment, employability and work record. Future loss of earning capacity was assessed at £99,062.04.