section image

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

Articles | Thu 25th May, 2023

Although the Ogden Tables (8th Edition) were published in July 2020 there is little by way of reported case law regarding the revised (and remarkably helpful) explanatory notes which accompany them.

Barry v Ministry of Defence [2023] EWHC 459 (KB) is a helpful example demonstration of how the revised guidance notes approach 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, however, is the High Court’s consideration of the revised guidance in the Ogden Tables (8th Edition).

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).

It was the MOD’s case 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. It also asserted that his problems were ameliorated by the use of hearing aids.

On the latter point, 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. That being so, the court found that the Claimant fell squarely within the examples given in the statutory guidance to the DDA 1995 and he 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.

That is not, however, the approach which the explanatory notes to the Ogden Tables suggest.

The relevant section of the explanatory notes starts at paragraph 83. 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 Guidance Notes

Despite the passage of time since the latest edition of the Ogden Tables were published, Barry is one of the first reported cases to show the application of this section of the revised guidance notes.

Those guidance notes contain many more useful pointers, explanations and worked examples.

For example, when considering the Table A-D adjustments, it is notable that they only go up to age 54. Why? The notes explain that for older ages with those who are employed the reduction factor tends to increase towards 1 at retirement age. Conversely, for the unemployed the reduction factor falls towards 0. The reduction factors become much more dependent on individual circumstances. It opens up the potential to argue, depending on the particular facts of the case and the Claimant’s circumstances, for a substantial adjustment or alternatively a negligible one.

To take another example, what about the potential for future employment being interrupted by bringing up children? Should the multiplier be adjusted? Once again, the answer is in the notes. The factors in Tables A to D already account for that

The case of Barry is a useful one. Not only for its clear demonstration of the right approach to adjustments to Tables A-D, but also because it highlights quite what essential reading the guidance notes to the Ogden Tables are for practitioners involved in calculating of future losses.

Portfolio Builder

Select the practice areas that you would like to download or add to the portfolio

Download    Add to portfolio   
Portfolio
Title Type CV Email

Remove All

Download


Click here to share this shortlist.
(It will expire after 30 days.)