Jennifer Anne Brown v Ministry of Defence
Jennifer Brown joined the army in February 1998. Eight weeks?
Into her basic training she suffered a serious fracture of her left
ankle. She did her best to regain fitness but was unable to
complete training and was discharged on 16 October 1999.After a
period of convalescence and a number of temporary jobs she began
training as a physiotherapist in September 2003. She raised
proceedings against MOD for damages for personal injury resulting
from the negligent failure to properly manage and supervise her
training. Liability was admitted but quantum was disputed. Herring
v MOD of future earnings without making any reduction for the
chances of her failing to complete a full term of service. The
chances of promotion to Staff Sergeant could be adequately
reflected by an adjustment to the multiplicand. In fact, Miss Brown
was able to obtain a comparable income as a physiotherapist, so
loss of future earnings did not represent a large part of her
claim.
Miss Brown came from an army family. Her father served for a
full term of 22 years, leaving as a Staff Sergeant. Her sister had
also enlisted. She had joined at the age of 24 having decided to
commit to a life in the forces. She claimed compensation for loss
of pension rights calculated on the assumption that she would have
remained in the army for the full service term of 22 years. She
also claimed for compensation for disadvantage in the labour market
and loss of congenial employment.
The Trial Judge was impressed by Miss Brown. He was confident
that she would have remained in service for the full 22 years and
would have reached the rank of Staff Sergeant at the very least. He
also concluded that there was a 30% chance that she would have
reached a higher rank of Warrant Officer - First Class.
A first appeal to a Deputy Circuit Judge dealt with the rank at
which the Pursuer would have left the army. At appeal it was held
that it was likely and probable that she would have reached the
rank of Staff Sergeant. There was no evidence which would have
enabled the Judge to assess in any realistic way her prospects of
promotion beyond the rank of Staff Sergeant. In those
circumstances, for the purposes of assessing her claim for loss of
pension rights, the chance of her doing so should be ignored.
A second appeal was taken to the Court of Appeal, which was
invited to assess damages. It decided that because Miss Brown had
chosen a career in the army that could properly be taken to provide
a clear reflection of her earning capacity. Based upon Court of
Appeal, 10 May 2006
The Court of Appeal indicated that it was necessary to look at
the evidence in relation to the chance that Miss Brown would have
completed a full 22 year term. It accepted that Miss Brown would
probably not have left the army after only 6 years service, but
might have left the army after 12 years service, being the two
common points of departure. They came to the view that there was a
100% chance that Miss Brown would have stayed in the army for six
years, a further 50% chance that she would have stayed in the army
for 12 years, and a further 30% chance that she would have
continued in the army for a full 22 year period of service.
The resultant value of her lost pension rights was the aggregate
of 100% of the value of her pension rights as at the end of 6 years
service, 50% of the additional value of the rights had she retired
at the end of 12 years service and 30% of the additional value of
the rights had she retired at the end of 22 years service. The
Court of Appeal also held that there was a 15% chance that had she
completed 22 years service she would have been entitled to the rank
of Warrant Officer - First Class, which required to be factored
into the figures.
The Court of Appeal held that there was sufficient material to
find that there was a more than insignificant risk that Miss Brown
would develop osteoarthritis in her injured ankle of sufficient
severity to force her to give up practice as an active
physiotherapist and accept more sedentary employment. The District
Judge had awarded Miss Brown £18,383, which was one full years pay
at current army rates. The Court of Appeal held that something
approaching four months earnings was all that was appropriate where
the degree of disadvantage was unlikely to be very great. The
award, which had been rejected at the first appeal, was restored,
but reduced to £5,000.
This is an interesting case in indicating the approach of the
courts to hypothetical future losses, particularly pension loss.
The approach of the courts will be to assess the percentage chance
of each hypothetical scenario, value the losses arising from each
scenario, and then add the resulting figures.