PROVING THINGS 224: PROVING LOSS OF EARNINGS: THE IMPORTANCE (& LIMITATIONS) OF THE CLAIMANT’S OWN EVIDENCE

The impairment of someone’s ability to earn their living is always a serious matter.  There are a number of approaches that the court can take to the award of damages.   Anyone representing a claimant should read McRae -v- Chase International Express Ltd [2003] EWCA Civ 505 where findings in relation to loss of earnings and an award for disability in the labour market were overturned by the Court of Appeal. The claimant failed because there was a basic lack of evidence.   These issues were explored by the Court of Appeal more recently in Irani v Duchon [2019] EWCA Civ 1846.   It helps to have a clear idea of the information that a witness statement must cover to prove a loss of earnings.

 

FORTHCOMING WEBINARS

Two webinars deal with the issue of loss of earnings,

Claims for loss of earnings: learning from recent cases on the 7th March 2022. Booking details available here.

  • Failing to prove future losses
  • When the court did l not accept a claim for future losses
  • Who is an “expert” and when is expert evidence allowed
  • Fundamental dishonesty when claiming loss of earnings (a case about psychic powers)
  • Reductions in claims because of Covid
  • “Loss of chance” considered in a fatal case
  • Loss of congenial employment

Claims for loss of earnings of the self-employed & those involved in entertainment and sport on the 14th March 2022, booking details are available here.

This webinar looks at the particular difficulties of acting for self-employed people who suffer loss of earnings due to injury, focussing on:

  • The particular problems of the self-employed claimant
  • When a claimant has not been fully declaring their income to the Inland Revenue.
  • The injured business owner
  • The effect of a limited company
  • Calculating net loss
  • Pension losses and the self-employed claimant

The webinar then goes on to look at issues in claiming losses in cases where the injured claimant earns, or hopes to earn, a living through sports and entertainment,  looking at cases where damages have been awarded and when a claim for “loss of chance” has been found to be appropriate.

Those attending the webinar will also be sent “loss of earnings” questionnaire which has a specific section for self-employed/business owners.

 

MATTERS TO BE COVERED IN THE CLAIMANT’S OWN STATEMENT

In many cases it is the claimant who is in the best position to give evidence as to their own career; earnings; future plans and the effect of the injuries on their income.  The detail required will vary with the gravity of the case.  The information required for a two week loss of earnings claim is very much different to that needed where the claimant cannot work or their earning capacity is impaired.  In a case of any substance the statement must contain:

(1) Information about the claimant’s educational history and qualifications.

(2) Details of the claimant’s employment history.

(3) Details of the claimant’s earnings.

(4) The claimant’s career plans.

(5) Details of the earnings that the claimant has lost. (Including details of any

incremental increases and promotions that the claimant would have      received).

(6) Details of any jobs the claimant has had since the accident.

(7) Details of any attempt to re-train.

(8) Details of the claimant’s job search.

(9) Information about the effect the injuries have had upon the claimant’s ability to their previous/current work.

(10) Information about how the injuries have affected the claimant’s ability to do other types of work.

(11) How the injuries have affected the claimant’s ability to obtain other types of work.

(12) Evidence as to how vulnerable the claimant’s job is; whether the claimant is likely to lose their job and how the injuries would affect any future job search.

(13) How the injuries have affected the claimant’s ability to work for as long as before, work overtime, shifts and obtain bonuses.

(14) Evidence as to the claimant’s planned retirement age before the accident. Whether the accident and injuries have affected that retirement age and the retirement benefits that the claimant is likely to receive.

(15) Whether the injuries have affected any chance of promotion.

(16) How the injuries have affected the Claimant’s enjoyment of their work.

These basic  questions have to be addressed, and the relevant information put into the witness statement, to have any realistic prospect of establishing a claim for loss of earnings/disability in the labour market.

EVIDENCE

The decision in Irani v Duchon [2019] EWCA Civ 1846 highlights the fact that “opinion” evidence from the claimant carries little weight. Wherever possible the claimant’s statement should be backed up with evidence, not least with first-hand documentary evidence of job searches and any attempts to re-train.