PROVING THINGS 173: FAILING TO PROVE ANY KIND OF PAST OR FUTURE LOSS OF EARNINGS: A BLAMIRE AWARD IS NOT A SUBSTITUTE FOR EVIDENCE

There is another aspect of the judgment of Mr Justice Chamberlain in  BXB v Watch Tower And Bible Tract Society of Pennsylvannia & Anor [2020] EWHC 156 (QB) that merits attention. Th claimant sought damage for loss of earnings  but these were not awarded. There was no evidence before the court to warrant an award under this head of damages.  The claimant did not succeed in a claim for past loss of earnings, and award on a “Blamires” basis or for being at a disadvantage in the labour market.  It is a judgment that shows that a claimant needs to prove their loss.

“Where, as here, a claim for loss of earnings is predicated on a contention that, but for the injury, the claimant would have obtained other, better paid employment, the claimant must establish that. If she cannot, it is no more appropriate to make an award on a lump sum basis than on the traditional multiplier/multiplicand approach”

THE CASE

The claimant was successful in her damages claim for a rape that occurred in 1990. The judge awarded damages for pain, suffering and loss of amenity. However he did not award damages for the claimant being at a disadvantage in the labour market or loss of earnings.  The judge found that there was insufficient evidence to show that the claimant would have qualified as a teacher.

THE JUDGMENT ON LOSS OF EARNINGS

    1. As it was presented to me, Mrs B’s claim for loss of earnings was based on a contention that, but for the psychiatric injuries attributable to the rape, she would have retrained and become a teacher. She bases that claim on a comment made to her headteacher by a school inspector who observed her working as a teaching assistant. She had never previously thought she had the ability to become a teacher but has thought of it often since.
    2. The difficulty with this part of Mrs B’s claim is that, on her own evidence, had it not been for the rape, she would have remained one of Jehovah’s Witnesses, probably until 2009. The significance of that date, she says, is that some Jehovah’s Witnesses believed that Armageddon would occur in that year; and when it did not, many (including friends of hers) became disillusioned and left the organisation. Mrs B was clear that, while she remained one of Jehovah’s Witnesses, she would not have taken full-time employment and would not have become a teacher. This means that, on her own case, Mrs B would not have even considered becoming a teacher until 2009 at the earliest. By that time, Mrs B was 49 years old. She was not (and is not) a graduate. To become a teacher she would have needed to acquire a degree or equivalent and a post-graduate teaching qualification. In principle, she could have combined part-time study with employment (possibly as a teaching assistant). But even if she had done so, and had been successful in obtaining the necessary qualification, she would then have needed to obtain employment. By this time, she would have been well into her 50s and would be in competition with other newly qualified teachers.
    3. It is never too late to retrain and I very much hope that, if Mrs B still wishes to become a teacher, she is not dissuaded by anything I say here from seeking to do so. For what it is worth, it is my impression that she is both intelligent and capable and the school inspector’s comment is some evidence that she has some of the skills required. The claim she has made, however, would require a factual finding that, but for the rape, she would already have sought to obtain a degree or equivalent, a postgraduate teaching qualification and employment and that she would have succeeded in all three respects. Given her financial position, she would have had to all this while working. There is no evidence before me on the basis of which I could properly find that it was likely that she would have done any of these things, let alone all. This part of Mrs B’s claim is, therefore, at best speculative. I therefore reject Mrs B’s claims for compensation for both past and future loss of earnings insofar as they are based on the contention that, but for the rape, she would have become a teacher.
    4. In respect of past loss of earnings, Mr Counsell accepts that the number of ‘imponderables’ means that he cannot seek past loss of earnings on the multiplier/multiplicand approach. Instead, he seeks a lump sum on the basis upheld by the Court of Appeal in Blamire v South Cumbria Health Authority [1993] PIQR Q1. That decision shows that there are some circumstances where it may be appropriate to award a lump sum by way of damages for loss of earnings where it is difficult to quantify loss more precisely. It does not suggest that it is ever appropriate to award damages absent evidence that the injury gave rise to some loss of earnings. Where, as here, a claim for loss of earnings is predicated on a contention that, but for the injury, the claimant would have obtained other, better paid employment, the claimant must establish that. If she cannot, it is no more appropriate to make an award on a lump sum basis than on the traditional multiplier/multiplicand approach.
    5. In the schedule of loss, it was said that a Blamire award could be made
‘to reflect the fact that her condition has caused or contributed to her inability to maintain employment in one field for very long and to her repeated changes of occupation. Had she not been abused, the Claimant would have been likely to have secured and maintained long term employment without significant breaks.’
  1. The difficulty with this contention, which was in any event not positively advanced by Mr Counsell in submissions, is that there was no evidence from Mrs B or otherwise to support it. Mrs B gave detailed evidence, which I accept, on the effect of the rape and the psychiatric injuries it caused on her personal life, but she did not suggest any similar effect on her ability to work, which she continued to do, with some breaks, sometimes on a full-time and sometimes on a part-time basis. Insofar as she changed jobs, or altered the pattern of her work, she explains this by reference to other events in her life (e.g. the move to Cyprus in 1998 with the man who was to become her second husband, the move back to Cardiff and birth of her second daughter in 1999, the move to Cornwall after her father’s stroke in 2005, the move back to Barry in 2007 to be close to her first daughter, the move to Bridgend in 2014 and the move back to Barry in 2016 to be nearer to her sister and children). She is now working in a full-time position as a receptionist in a care facility. Although Mrs B had to take 6 months off work in 2014, before and during Mark Sewell’s trial, she received full pay during this period. Taking all of this into account, I am not satisfied that, but for the rape, Mrs B would have been more remuneratively employed.
  2. Finally, Mr Counsell submits that there should be an award to compensate Mrs B for the handicap which her injuries will cause her in future in the labour market, applying the principle in Smith v Manchester [1974] EWCA Civ 6. The making of such an award requires the court to be satisfied: first, that there is a ‘real’ or ‘substantial’ risk that the claimant will lose her current job before the estimated end of her working life; and second, that the claimant will suffer financial disadvantage if that risk materialises, having regard to the factors (both favourable and unfavourable) which in a particular case will affect her chances of getting another equally well paid job: see Moeliker v A Reyrolle & Co. Ltd [1977] 1 WLR 132, 142A (Browne LJ).
  3. Even if there were a risk that Mrs B might lose her present employment, her employment history demonstrates that she has had little difficulty securing employment despite her ongoing recurrent depressive illness. I would not, without clear evidence, conclude that a history of such illness would in and of itself be likely to dissuade potential employers from offering employment. The period of 6 months spent out of work (but on full pay) in 2014 was atypical, but it was precipitated by a uniquely stressful event, which brought back the trauma of the original attack (the trial). There was nothing before me to suggest that there was any likelihood of another such event occurring. I would therefore reject the claim for a Smith v Manchester award.