Billett v Ministry of Defence (MOD)

In assessing loss of future earning capacity, the Ogden Tables A–D are a useful framework, not an automatic replacement for a broad Smith v Manchester assessment. Their broad disability bands may require individual adjustment. A broad assessment remains appropriate where disability lies at the edge of the relevant spectrum, affects the claimant’s chosen career much less than activities outside work, and no rational basis exists for adjusting the reduction factor. Under the Equality Act 2010, the disability inquiry focuses on activities the claimant cannot perform because of the impairment; substantial means more than minor or trivial. Appellate courts should not disturb general damages within the permissible bracket.

The claimant suffered non-freezing cold injury to his feet while serving in the Army. Liability was agreed at 75%, leaving quantum for trial before Mr Andrew Edis QC, sitting as a High Court judge. The claimant remained in steady HGV employment at his pre-injury earnings but was restricted from outdoor work in cold conditions.

The High Court awarded £127,956.45, including £12,500 for pain, suffering and loss of amenity and £99,062.04 for loss of future earning capacity, calculated using the Ogden Tables. The Ministry of Defence appealed both elements. The central issues were whether the general damages award was permissible and whether loss of future earning capacity should be assessed using the Ogden Tables or the Smith v Manchester approach.

1. Disposition. The appeal was allowed in part. The award for general damages remained at £12,500, but the award for loss of future earning capacity was reduced from £99,062.04 to £45,000.
2. General damages. General damages are assessed within a conventional judicial framework. The Court of Appeal should respect the trial judge’s advantage in hearing the claimant’s evidence and should interfere only where the award falls outside the permissible bracket, applying Santos v Eaton Square Garage Ltd [2007] EWCA Civ 225. The judge was entitled to rely on the continuing symptoms and their substantial effect in cold weather, notwithstanding the medical description of the injury as minor. The award was therefore upheld.
3. Future earning capacity. Loss of future earning capacity is distinct from loss of future earnings. A claimant may recover a lump sum despite earning at the pre-injury rate, where the injury creates a future handicap in obtaining or retaining employment. The assessment must account for the risk of job loss, timing, likely earnings loss, labour-market disadvantage and the claimant’s personal circumstances, following Smith v Manchester Corporation (1974) 17 KIR 1 and Moeliker v A. Reyrolle & Co. Ltd [1977] 1WLR 132.
4. Ogden Tables. Tables A–D may be a valuable aid, but they are a ready reckoner and framework rather than an automatic or complete answer. Individual reduction factors require judgment. A conventional Smith v Manchester assessment remains appropriate where disability covers a broad spectrum, the claimant’s disability lies at its outer fringe, the effect on the chosen career is slight compared with its effect outside work, and there is no rational basis for adjusting the reduction factor.
5. Disability. For the Ogden definition, all three conditions had to be satisfied: the condition had lasted or was expected to last for more than a year or was progressive; it satisfied the disability definition in the Equality Act 2010; and it affected the kind or amount of paid work available. The court adopted the approach in Aderemi v London and South Eastern Railway Ltd [2013] ICR 591: the inquiry focuses on what the claimant cannot do because of the impairment, and substantial means more than minor or trivial. The claimant was therefore disabled, albeit narrowly.
6. Alternative Ogden analysis. If the Ogden Tables were applicable, the reduction factor of .73 was too low. Because the claimant only just fell within the disability category, the factor should have been much closer to the uninjured factor in Table A, producing an award broadly equivalent to two years’ earnings.

1. Court of Appeal (Civil Division): Allowed the Ministry of Defence’s appeal to the extent that the future earning capacity award was reduced to £45,000, while upholding the £12,500 general damages award. Judgment reported at [2015] EWCA Civ 773.
2. High Court of Justice, Queen’s Bench Division: After a quantum trial, Mr Andrew Edis QC awarded total damages of £127,956.45, including £12,500 for general damages and £99,062.04 for loss of future earning capacity.