Kennedys has recently settled a claim by a Polish citizen for a
fraction of the amount claimed by raising arguments in relation to
the assessment of loss of a chance and making use of our network of
international offices to gather relevant evidence.
In 2004, the Claimant in this case was studying for a business
degree in Poland. She was the victim of a very unpleasant assault
by an employee of a bus company whilst on holiday in London.
Kennedys was instructed by the bus company.
Liability was not in dispute but significant issues arose in
relation to quantum. In particular, the Claimant alleged that from
the summer of 2005 she would have come to England and found
employment at the average UK graduate starting salary and remained
in employment here, receiving regular salary increases
Loss Of A Chance
Kennedys argued that the career model put forward heaped
speculation upon speculation to the point where the Claimant failed
to satisfy the threshold test of a "real or substantial
chance" as required by law on loss of a chance. The numerous
imponderables thrown up by the facts of the case included:
The fact that she might have decided to stay in Poland with her
She might have come over to the UK, not liked it or failed to
find suitable work and returned home.
She might have worked in the UK for a while, then lost her job
due to the recession or started a family and opted not to go back
Following the approach adopted by the Court of Appeal in
Langford v Hebran  Kennedys advanced a model
comprising 5 career options in descending order of likelihood. We
proposed that the most likely option was that the Claimant would
have worked as an estate agent in Poland, in line with her
pre-accident work experience. We then assigned percentages to the
chances of her obtaining additional income from better paid careers
in both countries. Only a 10% chance was applied to the likelihood
of her spending the whole of her working career in the UK.
Importantly, we argued that the Poles who did prosper by coming
to the UK were those with a trade to fill a vacuum in the British
market during the boom years, especially in the construction sector
between 2004 and 2007. We did not accept there was a co-existing
vacuum in the graduate sector or that Polish qualifications would
necessarily be sufficiently competitive in the UK graduate
Kennedys' London office worked on this case with our
associated Warsaw office, which assisted with assessing the likely
levels of income the Claimant might have attained in Poland and the
significantly lower Polish rates for residual care and therapy.
The latest Government statistics show that over half a million
people arrived to live in the UK in 2007. The highest inflow of any
individual citizenship was from Poland, with an estimated 96,000
Polish citizens migrating into the UK that year. In this context it
is not surprising that defendants and their insurers are seeing
increasing numbers of claims involving migrant workers.
Invariably many of these claimants will seek to maximise their
claims by alleging that their careers would have progressed in the
UK. As the above case shows, it is important that defendants adopt
a strong and careful approach to these claims. They should break
down the possible career options and consider the realistic
prospects of the claimant achieving these. If the claimant has
returned home, evidence may be needed as to local rates for any
residual claims. The financial difference between the two countries
can often be quite striking. By these means, settlements at much
more reasonable levels will be achieved.
Time after time, businesses are faced with (and use themselves) the classic argument in TUPE negotiations: "Of course the employee must transfer under TUPE – he spends more than 50% of his time on the transferring service".
It's now time for businesses to start planning how they are going to deal with Shared Parental Leave, as the legislation comes into force on 1st December 2014.
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