In this case, before Mr Justice Ritchie, the court gave helpful guidance on the approach to take in determining whether it was appropriate to make a Smith v Manchester award for a teenager who had not started working and the factors to be considered in deciding the level of any award.
The Claimant successfully sued the Commissioner for injuries sustained by him after being tasered by a police officer. At the time of the incident he was aged 14. He was a promising footballer with a two-year contract with Leyton Orient Academy.
When the Claimant was tasered he fell to the ground so that he hit his head causing a large deep gash above the left eye. Scans later showed that the left eye socket was fractured. He suffered left optic neuropathy and visual defect. Sight tests had shown that in the left eye he could only see at six metres something that a person with normal vision would see at 120 metres. He lacked measurable three-dimensional vision, and his colour vision was damaged so that he could not see green. These symptoms affected his ability to see people standing on his left or coming towards him from the left and hence affected his ability to play football at a top level. The expert evidence said that he would be able to do a desk job involving computers, but it would be unsafe for him to work at heights or near people with power tools, in the armed forces or police. He would not be able to drive an HGV.
The Claimant was almost 19 at the time of the trial. He had gone back to training sessions with Leyton Orient but was let go by them. He continued to play football however and still dreamt of playing at a high level. He had obtained eight GCSEs with grades generally of between two to four. He had started a sports science course but had left it being dissatisfied with it. The schedule of loss pleaded that the Claimant had not decided on his career but postulated that it would be in a sports related role: not a desk job. A number of jobs were suggested in the sports industry such as a sports teacher, physiotherapist, hospitality, nutritionist, agent, media and reporter. The average salary figures for these jobs was taken from a website called "Glassdoor.co.uk" so that an average salary of £31,000 gross per annum was pleaded. These figures were not put in evidence however. The judge said that the figure of £31,000 was therefore pleaded without evidential backup. The judge used the Government's Annual Survey of Hours and Earnings (ASHE) which he said are properly relied upon to evidence many claimants' future earnings capacities. Reference is made to them in Kemp & Kemp: Quantum of Damages Volume 2 at para 53-004, and they are set out in Facts and Figures 2024/25 on page 248 with explanatory notes. In his evidence the Claimant had been unsure about the work that he would go into as he became older; he still harboured a keen desire to be a professional footballer. He discounted working in the media and being a reporter though.
The judge noted that it was easier to estimate the but for future earning capacity of a man in his 30s with a track record of work than it was for a teenager. He said that the claim could have been put on the basis of a lost career as a professional footballer, but it had not been. It had been put on the basis of a Smith v Manchester award ([1974] 17 KIR1). The judge said that he was bound to determine the claim on the pleadings although he said that the Claimant's general approach was the correct way of assessing his earning capacity. The judge said that it would be very difficult for the Claimant to put forward a claim on a multiplier/multiplicand basis when he could not say how he would earn his wage in the future or what he would earn.
The judge took the types of jobs proposed by the Claimant (some of which had been accepted by the Commissioner) and used the mean annual income given by ASHE for them. Doing this produced a gross salary per annum of between £27,00 and £37,000. The mid-point was £32,000 gross per annum.
The judge said that Smith claims were used to cover the adverse financial effects caused by a claimant's disability restricting the range of jobs and work he could do, so causing (inter alia):
- longer gaps which a claimant might suffer when looking for work in the future, and
- the increased likelihood of being "thrown" out of work, or choosing to leave, earlier than he would have but for the injuries.
On the medical evidence, the judge said that it was clear that the Claimant's eye disability would adversely affect the range of jobs he could do and the actual work he could do in the remaining jobs that he could do. The judge thought that this would lead to longer job searches and so would lead to a financial loss each time the Claimant was looking for work. This was mainly because the Claimant wanted to work in a physical field and not in a desk job.
Kemp at paragraphs 10-030 to 10-036.1 said that to assess the level of a Smith award the Court should assess:
- The risk that the claimant would be out of work;
- The scope and seriousness of the effect of the disability on the claimant's earning capacity, covering the range of jobs he would be unable to do and the range of activities he would be unable to perform or be restricted in performing whilst at work;
- The length of time over which his working life would endure.
The judge thought the Claimant had provided the necessary evidence for a Smith claim. The medical evidence supported the claim. The judge also took notice that the Claimant's educational qualifications and his love of football and sport made it unlikely that he would have sought or would seek a desk-based job in the first 20 to 30 years of his working life.
The judge said that the guidance given in paras. 10-035.1 to 10-036.1 in Kemp was a helpful distillation of the range of award made by Courts in the past. He thought three categories for Smith awards could be discerned. The lower category justified awards up to one years net earnings and was exemplified by: Moeliker v Reyrole [1977] 1 WLR 137 ; Robson v Liverpool [1993] PIQR Q78 ; Hale v London Underground [1992] PIQR Q30 and Chatfield v Kohler, reported in Kemp at para. E1-013. Then there was the middle category for awards, between one and two years of net annual income, exemplified by Smith and Underwood v Forman [1996] reported in Kemp at I3-001. The highest category led to awards of two to five years, but the judge was unsure as to whether the old cases, which justified that category before, survived the Ogden 6th Edition changes. He made no decision on that because he had heard no submissions on that issue.
The Claimant sought an award of one year's gross earnings. Because the Claimant had 50 working years ahead of him the judge found that that level was reasonable. However, the award would be net of tax and NI, because that is what all claimants received in damages when the multiplier/multiplicand approach was used. The judge thought that the Claimant would be initially more affected by the disability than in later life, when he would have adapted to the work field and environment he had chosen, and the effects of the disability would be better managed. The judge made a Smith award of £32,000 gross which net of tax and NI resulted in an award of £26,560.
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