The Court of Appeal gave useful guidance on when a Blamire and/or Smith v Manchester award will be appropriate rather than an Ogden calculation.
Full judgment, dated 6 November 2019
The Claimant was made redundant because of injuries suffered in the index accident and as a result would be forced to move back to India. He presented inadequate evidence as to his future earnings in India and so the first-instance judge found that only Blamire and Smith v Manchester awards were possible, not an Ogden calculation.
The main bulk of the appeal was the Claimant’s contention that an Ogden calculation should have been undertaken. The court restated the test for when a Blamire award is appropriate, but dismissed the appeal.
This claim arose out of an accident involving an Indian national, working in the UK on a skilled worker visa, who suffered serious injuries in an RTA and consequently lost his job and, it was accepted, would have to move back to India to seek alternative employment there.
Mr David Pittaway QC, sitting as a deputy High Court Judge, heard the first instance trial and awarded £406,688 in damages, the loss of earnings elements being Blamire and Smith v Manchester awards. The Claimant appealed, contending that the judge should have used a multiplier and multiplicand approach and should have accepted the Claimant’s evidence on his residual earning capacity as it was unchallenged.
The Defendant cross-appealed, contending that the judge had applied the wrong test of causation for losses arising out of the Claimant’s redundancy.
Hamblen LJ gave the judgment of the court. He summarised the background (paras 8-17), being the Claimant being employed in the UK for an engineering company until he suffered a bad road traffic accident causing deformity to his right elbow, chronic pain in his left leg and a depressive disorder. He was made redundant, which the judge found was a “sham redundancy” caused by the accident (16). He later obtained alternative employment but will be unable to renew his Tier 2 visa when it expires in March 2020.
The Claimant thus claimed the difference between the salary he would have earned in the UK and the £10,000 per annum he said he would earn in India. Mr Pittaway QC’s conclusion had been that although the former was calculable, the evidence of the latter did not provide “a proper basis to find the level at which he will be earning in India”. He therefore made both Blamire and Smith v Manchester awards.
From paragraph 18 onwards, Hamblen LJ set out when an Ogden versus a Blamire approach was appropriate. He stated that the Ogden approach is preferable unless there is no real alternative to a Blamire award, citing Aikens LJ in Ward v Allies and Morrison Architects  EWCA Civ 1287 who in turn cited Bullock v Atlas Ward Structures Ltd  EWCA Civ 194. The point of the citations from those cases was effectively that mere uncertainty is not enough. What is required is that:
“there is insufficient evidence or there are too many imponderables for the judge to be able to make the findings necessary to support the multiplicand/multiplier approach.” (22)
The Claimant submitted that Mr Pittaway QC had appeared to reject the Ogden approach on the basis that it would create an “obviously unreal result” (as per the approach in Kennedy v London Ambulance Services NHS Trust  EWHC 3145), which is not the legal test. However, Hamblen LJ stated that the judge had referred himself to all the relevant authorities and accordingly he found that “[t]he other terms used by him were simply another way of expressing this.” (28)
The evidence on the issue at first instance is then rehearsed in the judgment (30-34) and Hamblen LJ specifically cites Mr Pittaway QC as having found that there was “no proper basis” on which to find the level of the Claimant’s likely earnings in India. Hamblen LJ also dismisses various other, weaker elements of the same argument at 35-39.
As to the Defendant’s failure to challenge the Claimant’s evidence on his earnings in India, Hamblen LJ explained at 40-46 that the Defendant was entitled not to cross-examine the Claimant as to his unsubstantiated opinions as to his likely earnings or as to the unrelated internet evidence presented, but that didn’t mean the judge could not reject it. The judge was entitled to come to the conclusions he came to.
In relation to the cross-appeal, Hamblen LJ made short work of finding that the judge’s finding that the injuries were a material cause of the redundancy amounted, because of other passages in his judgment, to a finding that but for the accident the Claimant would not have been made redundant.
The appeal and cross-appeals were therefore both dismissed.