Blamire Awards for Future Loss of Earnings: Irani v Duchon [2019] EWCA Civ 1846

Ordinarily, an award for future loss of earnings is calculated by reference to multiplier and multiplicand methodology, as explained within the Ogden Tables.

The multiplier represents the net loss of earnings, i.e. the difference between what the claimant could have earned ‘but for’ the injury and what the claimant is likely to earn ‘as a result of’ the injury. The multiplicand represents the number of years that the claimant’s earning capacity is affected by the injury.

In the case of Irani v Duchon [2019] EWCA Civ 1846, the claimant asked the Court of Appeal to reconsider an alternative lump-sum Blamire award, made in respect of his future loss of earnings.

He did so on the basis that the sitting Deputy High Court judge, at 1st instance, ‘could and should have quantified damages for loss of earnings by making a conventional award based on the adoption of a multiplier and multiplicand’, thereby tripling his damages.

So, had the judge erred in deciding to make a Blamire award, that is to say an award borne out of Blamire v South Cumbria Health Authority [1993] PI QR 1?

Case law suggests that the existence of ‘mere uncertainties’ about a claimant’s future does not ‘justify a departure from the well-established’ broad-brush approach. As such, Blamire awards will only be preferred to multipliers and multiplicands if there is ‘no alternative’ – see Keene LJ, in Bullock v Atlas Ward Structures Ltd [2008] EWCA Civ 194.

Expanding on this, Aikens LJ, in Ward v Allies and Morrison Architects [2012] EWCA Civ 1287, explained that he would be ‘driven’ to conclude that there was ‘no alternative’ to a Blamire award if there were ‘too many imponderables’, in regards to ‘earning capacity’ and ‘career patterns’, to identify suitable multipliers and multiplicands, ‘on the balance of probabilities’.

In Irani, the injured claimant was a young and geographically mobile man, who was highly educated and had specialist qualifications.

Mr David Pittaway QC, at the Court below, considered that the conventional approach for calculating future loss of earnings would have posed a ‘real risk’ of producing an ‘obviously unreal result’, quoting HHJ Hughes QC, in Kennedy v London Ambulance Services NHS Trust [2016] EWHC 3145.

Giving lead judgment, Hamblen LJ concluded that the 1st instance judge had correctly deemed, on the specific facts of the case and in accordance with prior case authorities, that there was ‘no real alternative’ to making a Blamire award. Dismissing the appeal, he added, at paragraph 38, that:

‘... if the only issue had been one of uncertainty rather than the wholescale insufficiency of evidence, he would have been able to address it in this way [by applying a ‘very substantial’ discount factor to the multiplier/multiplicand-generated figure]. This does not detract from his [Mr Pittaway QC’s] clear and reasoned prior conclusion that on the evidence there was no "proper basis" for finding what the residual earnings would be’.

Full text judgment can be accessed here.