Hills v Snoussi

In assessing future loss of earnings or earning capacity, the Ogden Tables should be considered and used where possible and appropriate, but they are not mandatory. A court may instead make a traditional Smith v Manchester lump-sum award where the claimant cannot establish that the injury caused loss of employment and the evidence includes other significant conditions or only limited disability. The assessment must be claimant-specific. Disability does not automatically justify applying an unadjusted reduction factor. Because these evaluations are necessarily subjective and approximate, an appellate court should not interfere absent a reviewable error.

Mr Darren Hills, an RAC patrol man, suffered post-traumatic stress disorder after a lorry driven by Mr Snoussi collided with his patrol van. The Northampton County Court and Family Court awarded damages including approximately £36,000 for 18 months’ loss of earnings on a Smith v Manchester basis, rejecting an Ogden Tables calculation for future loss of earning capacity.

On a renewed application for permission to appeal, Mr Hills challenged the refusal to use the Ogden Tables and argued that appropriate adjustments could be made. The central issue was whether the judge’s choice of assessment method disclosed an error of law or fact giving the proposed appeal a realistic prospect of success.

1. The renewed application for permission to appeal was refused. The lower court’s assessment disclosed no reviewable error.
2. The judge had correctly begun by considering the Ogden Tables, which should be used where possible and appropriate to avoid arbitrary judicial assessments. He was nevertheless entitled to conclude that they were unsuitable in this case. The claimant had not proved on the balance of probabilities that, but for his post-traumatic stress disorder, he would have remained in RAC employment. His physical condition when he lost his job and the significance of other concurrent conditions materially affected the assessment.
3. The proposed adjustments to the Ogden multipliers and reduction factors were essentially arbitrary. A claimant’s classification as disabled does not require the court to apply an unadjusted reduction factor. The court must assess the particular claimant and the particular effect of the disability, taking account of the other relevant conditions. Where that exercise would make the table-based calculation unreliable, a conventional Smith v Manchester lump-sum award may be appropriate.
4. Billet v Ministry of Defence established that, in cases of minor disability, the court may depart from the Ogden Tables and make a Smith v Manchester type award. Although Billet could be distinguished on its facts, it supported the conclusion that the lower judge had adopted a legally permissible approach.
5. Assessments in this area necessarily involve subjective and approximate evaluations. The Court of Appeal was not justified in interfering with the judge’s factual evaluation. The proposed appeal had no realistic prospect of success, and no other reason existed for the court to hear it.

• Court of Appeal (Civil Division): On 23 February 2016, Lord Justice Floyd refused the renewed application for permission to appeal.
• Northampton County Court and Family Court: HHJ Timothy Smith, on 6 March 2015, awarded approximately £36,000 for 18 months’ loss of earnings on a Smith v Manchester basis and rejected an Ogden Tables assessment for future loss of earning capacity.