The Dekagram 27th March 2023

Articles, News

27/03/2023

This week the team has been musing on the forthcoming Coronation – as our readers will know, we do love a party. Speaking of which, it’s Silks Day, and as a consequence Sarah Prager will be spending the day in fancy dress, nodding, bowing and generally being overwhelmed by the whole thing. We’ve said it before, but will again: thank you to our supportive readers, colleagues and friends. Without you we’d never have the opportunity to mess around with the Ogden tables on contingencies other than mortality.

Barry v Ministry of Defence or: How I Learned to Stop Worrying and Love Adjustments To Contingencies Other Than Mortality

The case of Barry v Ministry of Defence [2023] EWHC 459 (KB) offers valuable insight  into the revised guidance notes to the Ogden Tables (8th Edition) on Contingencies Other Than Mortality.

The case

The Claimant, Mr Barry, claimed damages for noise induced hearing loss sustained during his service in the Royal Marines. He had enlisted in 2013, for 18 years, but was medically discharged due to bilateral hearing loss and tinnitus in 2017. Breach of duty was admitted, though there were arguments on contributory negligence and some difference on the extent of the hearing loss.

The issue of widest interest to personal injury practitioners is the High Court’s consideration of the revised guidance in the Ogden Tables (8th Edition). In particular regarding adjustment factors for contingencies other than mortality and how should one approach any departure from the figures in Tables A-D.

Disabled?

The Claimant contended that he was disabled, and that the adjustment factors for a disabled person should apply. The MoD did not admit that Mr Barry was disabled (and as a consequence there was little or no real loss on the basis of an Ogden calculation). The Defendant argued that Mr Barry did not satisfy the definition of disability in the Disability Discrimination Act 1995, as his hearing loss did not have a substantial adverse effect on his normal day-to-day activities and his problems were ameliorated by the use of hearing aids. The court did not accept this, and found that the Claimant fell squarely within one of the examples given in the statutory guidance to the DDA 1995. In relation to hearing aids, treatment or aids of this sort are specifically excluded from the questions of whether someone is “disabled” or not (schedule 1 paragraph 6 of the DDA 1995). It must be determined on what the effects are without them. Mr Barry was found to be disabled for the purposes of an Ogden calculation.

The court then went on to consider the nature and extent of the Claimant’s disability, and whether the strict application of the figures in Tables A to D was appropriate.

Applying or Departing from Tables A-D

It may not always be realistic to apply the figures which a strict reading of the tables would produce.

There can be cases at the outer fringe of the spectrum covered by disability, where the Ogden disability does not fairly model the Claimant’s likely future in the workplace.  The court made specific reference to Billett v Ministry of Defence [2015] EWCA Civ 773, where the multiplier multiplicand approach was dismissed in favour of an award of general damages for loss of earning capacity.

Cases of that sort aside, there are cases where the Ogden disability calculation is appropriate, but the tables do not quite fit with the nuances of that particular Claimant’s circumstances. In those cases, the calculation may need adjustment.

It was noted by the court there is a natural temptation to simply adjust the factor within the range of the Claimant’s disabled figure and non-disabled figure. In the case of Mr Barry that was between 0.45 (disabled) and 0.89 (non-disabled). The mid-point would be 0.67.

However, the court considered the explanatory notes to the Ogden Tables on this issue (the relevant part of the explanatory notes starts at paragraph 83 of the Tables). Those notes explain that there is often a misconception that the impairment and activity-limitation must be severe or at least moderately severe to qualify as a disability. In fact, the adjustment factors for disability have been determined on the basis of an average across the range of all those in employment who have a disability. The most severe may fall outside that range, unable to work at all. The question is what is the ‘norm’ for the severity of disability for those who are in work?

Severity of Disability

The explanatory notes refer to a Health and Disability Survey with data that matches the data on which the reduction factors are based. In that, by reference to a severity scale of 1 to 10, 43% were in the range 1 to 3 (mild) and 44% were in the range 4 to 7 (moderate). Only 13% score in the range 7 to 10 (severe). The vast majority are mild to moderate. The median level of severity in that survey is 4; the norm is not the severe end of the scale, it is the mild end of the mild to moderate category.

That being so, an adjustment using the range between the disabled and non-disabled figures, particularly if adopting the mid-point, is likely to be too great a departure. The guidance notes to the Ogden Tables also set out that, although the figures given represent a central estimate, the observations cluster closely around that central estimate. If there is to be a departure, most should be modest.

How to Adjust the Adjustments

The court considered, and followed, the guidance notes on the approach to take. Instead of considering the range between disabled and not disabled adjustment factors, the more appropriate approach is to use instead the different “disabled” adjustment figures as a guide. Consider the “disabled” adjustment factors for a Claimant of that same sex and age, but with different levels of educational attainment to the Claimant, or in a different employment category.

The Adjustment for Mr Barry

In the case of Mr Barry, the court considered the nature and extent of the Claimant’s impairments at work and his history of work since leaving the Royal Marines (notably that he had maintained consistent employment ever since his discharge from the military). It also took account of the ameliorating effect of his hearing aids. While they had to be disregarded for determining whether he had a disability or not, the court considered they could be taken into account when considering the adjustment to his disability factor.

It was ultimately concluded that although Mr Barry was in fact educational level 2, his circumstances were better reflected by the adjustment factor of someone with educational level 3. In other words, the assistance of a hearing-aid and Mr Barry’s determination and consistency in the workplace were such that it could be modelled as being broadly equivalent to the advantage gained from a higher education qualification beyond A level. The adjustment factor applied was therefore one of 0.56; significantly closer to his ‘standard’ disabled adjustment factor of 0.45 than his non-disabled factor of 0.89.

The Ogden Tables (8th Edition) were published in July 2020, including these updated explanatory notes. Despite the passage of time, this is the first reported case which has analysed the recommended approach to departure from the strict application of Tables A to D. The judgement and, perhaps even more importantly, the explanatory notes themselves are useful reading for anyone involved in the calculation of future loss of earnings and the application of Tables A to D.

About the Author

Hugh Rimmer was called in 2003 and specialises in clinical negligence and high-value, complex personal injury claims. In his clinical negligence practice he is instructed in cases involving a wide range of medical specialities on issues including misdiagnosis and delayed diagnosis, unnecessary/inappropriate treatment, surgical negligence, pharmaceutical negligence and failure to obtain informed consent.

Hugh has extensive experience in cases involving ophthalmic negligence, and is sought after in particular for cases involving informed consent for cosmetic ophthalmic surgery (including laser eye surgery and refractive lens exchange). He is recognised as a leading junior in clinical negligence by the Legal 500 and is an experienced practitioner who provides advice and representation at all stages of litigation.

Playing Coronation Chicken: Packages and Refunds

Here at Deka we are very much looking forward to the coronation of King Charles III on 6th May 2023. So is the travel industry, with a number of providers offering deals for the great event.

But as lawyers, we can’t help but be reminded of Edward VIII’s coronation in 1902, originally scheduled for 26th June but postponed, at very short notice, to 9th August because His Majesty was taken ill.

This gave rise to the “coronation cases” where the courts considered whether the postponement of the coronation operated to frustrate contracts to rent rooms with a view of the coronation procession (Krell v Henry [1903] 2 KB 740, and Chandler v Webster [1904] 1 KB 493), or for a seat on a viewing stand (Buckley v Muller [1903] 2 KB 760). In each of these cases, the courts held that the coronation procession was at the heart of the contract, and that its postponement prevented the performance of the contract. It is important to note that in Chandler the contract specifically stated the room let was “to view the first Coronation procession”; and whilst the contract in Krell made no express mention of the coronation, the hire was for the days only, and not the nights. In contrast, there was held to be no frustration in Herne Bay Steamboat Co v Hutton [1903] 2 KB 683, where the claimant hired a steamboat to take passengers around the bay to view a Naval Review (for the coronation) and “for a day’s cruise around the fleet”. The Review was cancelled, but it remained possible to cruise around the fleet, and the court held that the contract was not frustrated. This is an early example of the principle in Krell being kept within very narrow bounds. Attempts to widen the principle have not succeeded: a more recent example is Salam Air SAOC v Latam Airlines Group SA [2020] EWHC 2414 (Comm). In that case, a company leased aircraft which it was then unable to use because Covid restrictions prevented flying. The company’s obligation to pay rent was expressed to be “absolute and unconditional irrespective of any contingency whatever” (a “hell or highwater” clause) and this was not displaced by Covid regulations. The judge also found there was no relevant “purpose” to fall within Krell in any event.

What of coronation packages in 2023? Well, the Package Travel Regulations provide for cancellation (by either the traveller or the organiser) in the event of “unavoidable and extraordinary circumstances” which (in the case of the organiser) prevent the performance of the package, or at the destination which significantly affect the performance of the package. In both cases, the package can be cancelled and the traveller is entitled to a full refund, but no further compensation. This reflects the common law position where a contract is frustrated.

Both at common law and under the Regulations, the question will be whether certain events (or their cancellation) are such as to go to the heart of the contract, meaning that the organiser can no longer perform the contract, or that the contract’s performance is “significantly affect(ed)”. A package trip to London happening to coincide with the Coronation is unlikely to be so affected were the Coronation to be cancelled. But the position would be different if the package included Coronation-related activities.

About the Author

Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.

Featured Counsel

Hugh Rimmer

Call 2003

Andrew Spencer

Call 2004

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