Billett v Ministry of Defence (MOD)

The Court of Appeal considered the proper method for assessing damages for loss of future earning capacity where a claimant suffers a minor non-freezing cold injury (NFCI), is in steady employment and earns his pre-accident rate. The court analysed the interaction between the traditional Smith v Manchester approach and the Ogden Tables (in particular Tables A–D and their reduction factors), and the meaning of "disabled" for the purposes of the Ogden adjustments by reference to the Equality Act 2010.

The panel upheld the trial judge's factual findings that the claimant suffers ongoing symptoms and that those symptoms substantially affect certain normal day-to-day activities in cold weather, concluding he was "disabled" for the narrow purposes of the Ogden Explanatory Notes. The Court nevertheless held that, on the facts, the Ogden reduction-factor approach produced an unrealistic award and that a broad Smith v Manchester assessment was the appropriate method in this case.

Outcome on quantum: the Court upheld general damages for pain, suffering and loss of amenity at £12,500 but reduced the award for loss of future earning capacity from £99,062.04 to £45,000 because the Ogden RF application was inappropriate or inadequately calibratable in the claimant's circumstances.

This was an appeal by the Ministry of Defence against part of the High Court's assessment of damages following an agreed finding of 75% liability for non-freezing cold injury to the claimant's feet sustained in military service. The claimant sought damages for pain, suffering and loss of amenity and for loss of future earning capacity. The liability point had been agreed; only quantum was tried before Mr Andrew Edis QC and subsequently appealed to the Court of Appeal.

Background and procedural posture:

• The claimant, born 1985, joined the army in 2002, sustained NFCI in 2009 and left service in 2011. He obtained HGV qualifications and worked as an HGV driver; his earnings at trial equalled his notional uninjured earnings.
• Liability was accepted to the extent of 75%. The trial judge accepted the claimant's evidence of persistent symptoms and awarded general damages of £12,500 and £99,062.04 for loss of future earning capacity using Ogden Tables A and B with an adjusted reduction factor.
• The Ministry of Defence appealed the levels of general damages and the methodology/amount for future loss.

Issues framed by the Court:

• Whether the claimant qualified as "disabled" under the Ogden Explanatory Notes linked to the Equality Act 2010 definition;
• Whether damages for future loss of earning capacity should be assessed by applying Ogden Tables A–D (with appropriate reduction factors) or by a conventional Smith v Manchester general assessment in the particular facts of this case;
• Whether the trial judge erred in the chosen reduction factor and resulting calculation.

Court's reasoning:

• The Court accepted the trial judge's primary fact findings on the claimant's symptoms and their effect on day-to-day activities and therefore accepted the judge's conclusion that the claimant was "disabled" for the narrowly-defined Ogden purpose, but only just.
• The Court considered the scope and research basis of Ogden Tables A–D and acknowledged they provide a statistical framework to capture contingencies beyond mortality. It noted that the working party's Explanatory Notes permit adjustment and that some cases still warrant Smith v Manchester awards.
• Applying the Equality Act test as explained in Aderemi, the Court found the judge was entitled to find a substantial adverse effect on normal day-to-day activities because the focus is on what the claimant cannot do, not what he can do.
• However, the Court concluded that the bands and reduction factors in Tables A–D are so broad that, given the claimant sat at the extreme margin of the "disabled" band and suffered relatively little work impact (most impact was on leisure), a direct mathematical application produced an unrealistically large award. The Court therefore preferred a Smith v Manchester type general assessment of prospective labour‑market handicap and reduced the award to the equivalent of two years' earnings, rounded to £45,000.

Relief granted: The appeal was allowed in part: the award for general damages was upheld; the award for loss of future earning capacity was reduced to £45,000.

Appeal allowed in part. The Court of Appeal upheld the trial judge's award of general damages at £12,500, accepting his factual findings on the claimant's continuing symptoms and their effect on normal activities. However, the court concluded that the judge's application of Ogden Tables A and B (and the chosen reduction factor) produced an unrealistic figure for loss of future earning capacity in the particular circumstances. The court therefore applied the Smith v Manchester approach for labour-market handicap and reduced future loss to £45,000.

Claim issued in the Mayor's and City of London Court (claim form 2 February 2012) and subsequently transferred to the Queen's Bench Division. Quantum was tried before Mr Andrew Edis QC (sitting as a High Court judge) in July 2014; reserved judgment handed down 5 September 2014. The defendant appealed to the Court of Appeal, which handed down judgment at [2015] EWCA Civ 773 on 23 July 2015.