Irani v Duchon

Future loss of earnings should ordinarily be assessed by the multiplier/multiplicand method, using the best forecast the evidence permits. Uncertainty alone does not justify a broad-brush lump sum. A Blamire award is appropriate only where the court is driven to conclude that there is no real alternative, for example because the evidence is insufficient to establish but-for or residual earnings. In such a case, a Smith v Manchester award may also be made. A claimant’s opinion about future earning capacity is not, without more, probative evidence of residual earnings. For causation, an accident-related injury may be an operative or effective cause even where other reasons contribute; finding it a material consideration and one of the reasons may satisfy the but-for test.

The claimant suffered serious injuries in a road traffic accident for which the defendant admitted liability. Following a trial, the High Court awarded total damages of £406,688, including a Blamire award for future loss of earnings and a Smith v Manchester award for disadvantage on the open labour market.

The claimant appealed, arguing that future earnings should have been assessed conventionally by a multiplier and multiplicand and that his unchallenged evidence about residual earning capacity should have been accepted. The defendant cross-appealed, contending that the judge had applied the wrong causation test in finding that the accident caused the claimant’s employment loss and consequent immigration difficulties.

The central issues were whether the evidence justified departing from the conventional method and whether the judge’s findings established causation on the balance of probabilities.

1. Appeal and cross-appeal dismissed. The High Court judge was entitled to make a Blamire award and a Smith v Manchester award.
2. The conventional method is to assess future loss of earnings by identifying the claimant’s but-for earnings and residual earnings, then applying an appropriate multiplier. The court should make the best forecast available and should be slow to adopt a broad-brush award merely because the future is uncertain. A Blamire award is justified where there is no real alternative, including where the evidence or imponderables prevent the necessary findings.
3. The judge accepted that there was an acceptable methodology for assessing earnings in the United Kingdom but found no proper evidential basis for determining residual earnings in India. The evidence consisted principally of a friend’s untested letter, unsuitable internet advertisements and assertions by the claimant which the judge rejected. That factual assessment was open to him.
4. The judge’s reference to a possible 50 per cent discount if a multiplier/multiplicand approach had been adopted did not contradict his prior finding that there was no proper basis for fixing the multiplicand. It was a hypothetical observation addressing uncertainty, not a finding that the conventional method was available.
5. The rule requiring a party to challenge opposing evidence in cross-examination did not require the defendant to cross-examine the claimant’s belief that he would earn £10,000 per annum in India. That belief was opinion, not material factual evidence of residual earnings, and the defendant’s pleaded case had clearly challenged the adequacy and reliability of the evidence.
6. On the cross-appeal, the judge had applied the correct causation test. His findings that the claimant’s inability to return to full-time work was a material consideration and one of the reasons for the sham redundancy established that the injuries were an operative or effective cause. That was equivalent to finding that the redundancy would not have occurred but for the accident. Lord Justice Holroyde and the Master of the Rolls agreed.

• Court of Appeal (Civil Division): The appeal and cross-appeal from the High Court were dismissed.
• High Court of Justice, Queen’s Bench Division: Mr David Pittaway QC, sitting as a High Court judge, awarded total damages of £406,688 following the trial. The decision is reported at [2018] EWHC 2314 (QB).