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By Roger Mackle

Nov 8th, 2019

Blamire approach approved in foreign claimant case

In the case of Irani v Duchon the Court of Appeal has provided helpful guidance on the application of Blamire awards which should benefit defendants contesting claims for future loss of earnings.

The claimant claimed damages for losses alleged to result from an RTA in 2013, at which time he was 26. He sustained serious injuries, particularly fractures to one leg. It was accepted that he was to a degree handicapped in relation to the work he was doing at the time of the accident, a specialist engineering role in the motor industry. The main issue in dispute was how to calculate his future loss of earnings. 

The claimant contended that the conventional approach of using a multiplicand, representing the net loss of earnings, and a multiplier, representing the period of loss discounted for early receipt and other factors, should be used, which would have resulted in a much higher award, of around £1.25 million. The defendant argued that any award should be based on a broad-brush assessment, a so-called “Blamire award” following Blamire v South Cumbria HA [1992] which would have produced a much lower award. The Judge in the High Court adopted the Blamire approach making an award of £219,188 and the claimant appealed to the Court of Appeal.

As ever, the decision was influenced by the facts of the case, which are worth bearing in mind when considering the relevance of the decision to cases you may deal with. The claimant had entered the UK from India in 2010 on a visa sponsored by his employer. His leave to remain expired in 2020. The accident in 2013 resulted in the claimant being off work for a significant period. The small company he worked for made himredundant, though the court found this to be a “sham redundancy” motivated by the claimant’s incapacity to work. He obtained different employment after six months but the break in the continuity of his employment prevented his application for indefinite leave to remain in the UK. The claim was thus presented on terms that the claimant would only be able to work in his native India at much lower earnings. 

The claimant’s downfall was his failure to present any adequate evidence to support his case that he would be forced to work in India for the rest of his life where it would be difficult for him to secure work within his specialism so that he would only earn much less than had he remained in the UK but for the accident. The claimant’s evidence was limited to a letter from a friend in India and some job adverts from the internet. The Judge concluded that, whilst the claimant’s potential earnings in the UK but for the accident could be assessed by the reference to UK earnings statistics, there was no proper evidence for a finding on the level of residual earnings in India, or even that the claimant would remain working in India.

The Court of Appeal dismissed the claimant’s appeal, supporting the Judge’s adoption of the Blamire approach on the facts of the case. It reiterated that ordinarily the multiplier/multiplicand methodology should be followed. However, the Blamire approach is appropriate in cases where there is no real alternative and the court is “driven” to rely on it because of insufficient evidence or too many imponderables. In this case there was insufficient evidence regarding residual earnings combined with uncertainty regarding where the claimant would live and work. 

Defendants should challenge claims for future loss of earnings where the evidence is weak and uncertainties significant. This case will be particularly useful when dealing with claims by foreign nationals whose residual earnings may be difficult to assess, as in the reported case.
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