Ward v Allies and Morrison Architects [2012] EWCA Civ 1287

Subjects: Use of Definition of Disability in Personal Injuries Claims

C won a personal injury claim against her employer after an accident at work. The Judge award her compensation on the basis that she was not disabled. C appealed.

Facts

C was working as a model maker on a short term placement with R. Whilst using a circular saw she cut off her index finger on her left (non-dominant) hand and damaged her middle finger. Her index finger was able to be re-attached and she made a considerable recovery. HHJ Cleary made awards in respect of the various heads of damage. However in relation to future earnings, he concluded that he did not have sufficient evidence as to what C had lost, or what she was likely to earn in the future, or the time during which she needed to be compensated for loss of future earnings. He further held that he was not satisfied as a matter of law or fact that she was a “disabled person“. The judge therefore awarded £30,000 loss of future earnings in accordance with the case of Blamire v South Cumbria Health Authority [1993] PIOR Q1. C appealed, submitting that the judge erred both in awarding damages for loss of future earnings and in finding that she was not “disabled“ within the meaning of the Disability Discrimination Act 1995.

Held

The Court of Appeal held that the judge was entitled to reach the conclusion that there were too many imponderables for him to hold, on a balance of probabilities, what the likely career and earning capacity of C would have been but for the accident; what it was likely to be as a result of the accident; or, that she would be likely to suffer a loss of earnings in the future. The finding in respect of future loss of earnings was therefore upheld.

C also argued that it was necessary to decide whether the she was disabled under the DDA 1995 before concluding whether the Ogden tables should be used or not. The Court of Appeal held that the issue of whether C was disabled under the DDA 1995 was not a determining factor on whether or not the Ogden tables should be used to calculate loss of future earnings. There are three criteria for considering whether a person is disabled set out in the Ogden Tables. The first and second criteria concern whether a person is disabled under the DDA 1995 and the third concerns whether his condition affects the kind or the amount of paid work he can do. In this case the judge found that there was no evidence in respect of the third factor so, even if the Blamire approach was incorrect in principle, the “disability“ factor in Odgen Tables could not be used in this case.

Comment

The Court of Appeal confirmed that it is appropriate for a judge to make a Blamire awards if the court is not satisfied that it has the necessary information to apply the multiplier/ multiplicand approach. Although not strictly a disability discrimination case we have included this summary as we thought that this case might be of interest.