Inglis v Ministry of Defence

Future loss of earnings should normally be assessed by the conventional multiplier/multiplicand method. A Smith v Manchester award is appropriate where uncertainties are so extensive that only a broad-brush assessment is possible, particularly where disability has minimal impact on employment. Ogden reduction factors are population averages and may be adjusted upwards or downwards where evidence supports a different figure for the individual claimant. For disability under the Ogden Tables, the court must assess the cumulative effect of the impairment on normal day-to-day activities and its effect on the kind of paid work available.

The claimant, a former Royal Marine, claimed damages from the Ministry of Defence for noise-induced hearing loss and tinnitus. Liability had been agreed on an 80:20 basis in the claimant’s favour. The court determined whether hearing loss caused the claimant to leave the Royal Marines, the extent of the impairment, whether he was disabled for the purposes of the Ogden Tables, and the appropriate method for assessing future earnings loss.

The court also assessed general damages, loss of congenial employment, pension loss and associated consequential losses. The judgment included a subsequent paper determination refusing the defendant permission to appeal.

1. The claimant proved on the balance of probabilities that hearing loss was the reason he left the Royal Marines. The more lucrative maritime-security employment was the means by which he left and provided short-term financial security, rather than the primary motivation.
2. The claimant was disabled within the meaning of the Ogden Tables. His hearing loss was permanent, substantially limited his ability to carry out normal day-to-day activities when its cumulative effects were considered, and affected the kind of paid work he could undertake. The assessment was made without taking hearing aids into account.
3. The multiplier/multiplicand method was the conventional method for future earnings loss. A Smith v Manchester award was appropriate where uncertainties prevented that method and required a broad-brush judgment. That was not this case: the claimant’s annual earnings could be identified, his disability had more than a minimal effect on work, and evidence permitted an adjustment to the Ogden reduction factor.
4. The reduction factors in the Ogden Tables are statistical averages. They may be adjusted where evidence supports an adjustment for the particular claimant. A factor of 0.7 was appropriate, taking account of the claimant’s work history, qualifications, mild hearing loss, tinnitus, age and employment restrictions.
5. The court declined to determine whether noise-induced hearing damage continues after exposure ceases, because the issue made no material difference on the facts and there was insufficient evidence and medical literature.
6. The damages were assessed subject to the agreed 20% reduction. General damages of £25,000, loss of congenial employment of £8,000, future loss of earnings of £257,518, future loss of pension of £351,313 and other agreed sums were awarded. Past earnings exceeding the uninjured position were set off against future earnings loss. Permission to appeal was refused.

This was a first-instance damages judgment. In a subsequent paper determination, the High Court (Queen’s Bench Division) refused the defendant permission to appeal because the proposed appeals had no real prospect of success and no other compelling reason justified an appeal.