Billett v MOD – Ogden 7 – a decision confined to its facts?

News | Sat 25th Jul, 2015

The Court of Appeal has allowed the defendant’s appeal in Billet v MOD [2015] EWCA Civ 773 and substituted the judge’s award of future earnings loss of £99k based on a multiplier/multiplicand approach using the reduction factors for disability set out in tables A – D (“the tables”) in the Ogden Tables with a conventional Smith v Manchester award of roughly 2 years worth of current earnings of £45K. Does this mark the high watermark of the applicability of the tables? Does the decision help or hinder practitioners in advising the claimant what to expect for future earnings loss or is it really decision that is best confined to its own facts?

As ever the devil is in the detail of the judgment. Perhaps the most important part of Jackson LJ’s judgment (who gave the only substantive judgment) is the acceptance that the trial judge was right to categorise the claimant as disabled in accordance with the Equality Act definition. The claimant had suffered a non-freezing cold injury when he was in the Army so that his feet were painful in cold weather. The judge rejected the proposition that the definition of disability should be focused on what the claimant could do. Jackson LJ also agreed that the court should consider what the injury had prevented or impaired the claimant from doing compared to the pre-accident position.

The approach of Langstaff J as to what constitutes a “substantial adverse effect” on a person’s “ability to carry out normal day to day activities” in Aderemi v. London and South Eastern Railway Limited [2013] ICR 591 was endorsed namely that unless a matter can be classified as within the heading “trivial” or “insubstantial” it must be treated as substantial and that there was “little room for any form of sliding scale between the one and the other”.

The judge at first instance in Billett clearly thought it inappropriate to apply the full reduction factor for the disability on the basis that he had found that the claimant came only just within the category of disability. He took a mid-point between the full reduction factor for disability and persons not disabled.

Jackson LJ thought in principle that even though the claimant was disabled it was not appropriate to use the tables because the disability was at the “outer fringe” of the definition of disability and that the disability did not affect his ability to work nearly as much as it affected his life outside work. The claimant admitted he could do his job as a lorry driver without real difficulty. (He admitted in cross examination that the only difficulty he had in his job was when pulling down the rear shutter in cold weather and this was only painful for his hands. Given the judge found that the claimant’s hands were not affected by the injury it must follow that his disability had no effect on his current work).

It was apparent also that the claimant had a good CV and excellent driving qualifications. Both experts agreed that that his new employment, even if it was lost in the future for whatever reason, would put him in good stead for finding another similar driving job. He had been a driver in the Army for many years as well. He started his new job very soon after leaving the Army. It was agreed though that he would not be able to work outside (and not in a heated cab). This was the limit of the disadvantage on the labour market. The claimant also lost the argument that his leaving the Army was the result of his injuries and this cannot have helped his claim for future lost handicap on the labour market.

Does the ghost of Smith v. Manchester still haunt the assessment of damages in cases where the injury has a lasting impact on employment? The Court of Appeal clearly considers that in certain cases it is still appropriate to resort to the traditional “finger in the air” assessment when a more scientific or arithmetical approach cannot be used. Jackson LJ also appeared to accept that a Smith claim is usually no more than about 2 years worth of current earnings but this was based on a review of previous cases rather than any analysis or justification as to why there should be a natural limit on the award where the Smith approach was to be used. As was clear in Smith itself awards for labour market handicap are part of general damages and as such they are in essence a jury-award where the judge is the tribunal of fact.

Arguably, to use the (some would say old-fashioned) approach in Smith is really to go against the current practice of using the Ogden tables as a starting point. If the claimant is found to be disabled it is hard to see why the research which underpins the tables should then be discarded especially where the court is provided with a sliding scale in the form of the top and bottom brackets for reduction factors for disability.

Interestingly Jackson LJ went on to say that his award of £45,000 would have been produced had the judge applied a lower reduction factor and not used a mid-point so that whether Smith was used or the tables the award by the judge was too high. This is all a bit confusing. Surely the Court of Appeal could have been more consistent here? Professor Victoria Wass had argued in a JPIL article that the first instance decision in Billett was wrong to find that the claimant was disabled. We can all agree that once the gateway, as it were, for the application of the tables is passed, the resultant earnings loss figure can be wildly in excess of the awards made before the 6th edition of the tables was produced but this calls for a case-sensitive application of the tables (by adjusting the reduction factor just as the judge did in Billett) rather than resorting to Smith. In truth it may well be that the Court of Appeal wanted to give the claimant something for future handicap but to find him disabled but then to reject the tables is not, as headlines go, that helpful.

For claimants the Court of Appeal decision is welcome in that the test for disability will not be as hard to overcome as defendants often suggest. Certainly for claimants whose disability has meant that their pre-accident work has been lost or where they cannot do as much overtime for example so that there is a current and ongoing loss of earnings the reduction factors in the tables should still be used.

In cases like Billett where there is no ongoing earnings loss the temptation will no doubt be for the defendant to argue that in order to calculate the handicap on the labour market regard should no longer be had to the tables. That would surely be wrong. It was a significant feature in Billett that the affects of the disability, such as they were, had far less impact on the claimant’s ability to work than it did in other areas of his life. As we have seen it had no impact in his current job and only affected his future choice of job should he not find work as a lorry driver in heated cab again. This is a pretty limited handicap compared to other cases. Some might say that given this finding even a 2 year award was generous.

However where there is no current earnings loss but the claimant is in regular pain or discomfort at work or who regularly needs the help of his colleagues or who cannot in fact do certain parts of his job with the understanding (or even not) of his employer, then the claimant’s handicap on the labour market must surely be measured by the application of the tables.

So what is the message from Billett? The disability threshold is not as high as defendants would like and the tables should therefore ordinarily be used as a starting point but where there is no impact on current ability to work the ghost of Smith still flickers!