On 23rd July 2015 the Court of Appeal considered, for the first time, the applicability of the Ogden Tables to the assessment of loss of earning capacity.
In Billett v. MoD  EWCA Civ 773 the trial judge had found that the claimant's reduced ability to undertake normal day-to-day activities meant that he should be classified as 'disabled', although he was capable of pursuing his chosen post-military career as a lorry driver with virtually no hindrance from his disability. Using Tables A-D, introduced in the 6th edition of the Ogden Tables, the claimant's uninjured Reduction Factor ('RF') was 0.92 (Table A). As a result of his injuries, being disabled, Table B provided an RF of 0.54. The judge stated, however, that because his disability was 'minor', he would adjust this to 0.73 (halfway between the 'non-disabled' and 'disabled' RFs). Nevertheless, with a loss of earnings multiplier of 24.29 before adjustment, this gave a future 'loss of earnings' claim of 4.62-times current net earnings, or more than £99,000. This, the judge said, was the proper quantification of the claimant's loss of earning capacity claim.Although the Court of Appeal considered that Tables A to D could be a valuable aid to quantifying lost earning capacity, they were not in the present case. This was because the claimant's disability was minor ('at the outer fringe' of the disability spectrum) and his disability affected his ability to pursue his chosen career much less than it affected his activities outside work. Accordingly the judge's broad-brush adjustment of the RF was no more scientific than the broad-brush judgment required when carrying out a Smith v. Manchester assessment. In all the circumstances the Court of Appeal considered that a Smith award in the region of 2 years' net earnings was appropriate, and rounded this up to £45,000. Alternatively, even if following the Ogden approach the Court of Appeal would have chosen an RF far closer to the Table A figure, on the basis that the claimant 'only just scrapes into Table B', and produced a similar award.
It is apparent that even where the Ogden method is rejected, the relevant calculations may be a useful guide, or starting point, when assessing loss of earning capacity. It is also worth noting that although the Court of Appeal upheld the trial judge's finding that the claimant was disabled, this factual issue was clearly close to the borderline.
Richard Menzies / 1st Aug 2015
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