Injury Law – Damages for Congenial Employment – Should they rise?

In Hale v London Underground Limited 1993 PIQR Q30 Otton J. said “it is now well recognised that this is a separate head of damage”. The award has, conventionally, been about £5,000. This is inadequate. It should now be £10,000.

This head of damage was considered novel and hardly ever awarded in the 1980’s. It was difficult to persuade judges to make a separate award because “it is part of general damages for pain and suffering and disability”. Gradually the judges were persuaded that it was a materially different head of damage. There were two main reasons for this. The first was that many people who lost their jobs because of injuries found that they had lost the major satisfaction in their lives, and the conventional award of general damages did not reflect this. Secondly, this was a loss for the future, not for the past; general damages for pain, suffering and disability largely included damages for past pain and suffering.

Many of the reported cases concern people in nursing, the police services and the fire brigade. Some are in the armed services. Their sense of vocation was readily appreciated by the courts. (One often felt that the judges understood this loss because life on the bench was not so enjoyable as life at the bar). Other jobs have been slower to achieve appreciation as “vocations” and therefore to attract a distinct award of damages.

Loss of congenial employment is an important head of damage. It should be thought about in every case because many people thoroughly enjoy their work, the sense of satisfaction which it provides, the discharge of public duty or the pleasure of working in a valued job. It is quite different from disability on the open labour market (“Smith v Manchester“) and it is also quite different from loss of earnings. It is of course important that the evidence is clear and cogent. A properly drafted statement from the claimant, a colleague or manager will do this.

Set out below are some of the reported cases:

1. 1971 a 27 year old careworker, Hearnshaw, damages of £1,750 now worth £15,015;
2. 1973 a 26 year old fireman, Simkin, damages of £1,000 now worth £7,350;
3. 1984 a 62 year old hospital orderly Lucey, damages of £1,500 now worth £2,880;
4. 1986 a 21 year old policemen, Ellis, damages of £5,000 now worth £8,650;
5. 1988 a 43 year old fireman, Saunders, damages of £2,500 now worth £4,025;
6. 1993 a 22 year old Royal Navy trainee, signed up for 22 years, Cornhill, damages of £10,000 now worth £12,100;
7. 1995 a 23 year old trainee professional dancer, Kirk, damages of £10,000 now worth £11,400, described as “possibly would have been in the top flight;
8. 1997 a 41 year old policeman, Langley, damages of £5,000 now worth £5,400.

It is not possible readily to deduce a pattern from these cases. It is significant that the very early cases, from the 1970s, produce larger updated figures than the 1980 figures. The 1990 figures are variable, but all tend to point to a figure of around £10,000 for loss of congenial employment in 2001. This is what judges should be awarding when a claimant has lost the career which he really loves. The figure will be lower where the loss is not so keenly felt. The fact that the claimant is not a policeman, nurse or serviceman is not relevant: it is his sense of loss which is important. “Vocation” will be more easily proved where the claimant is a member of one of these services, but those doing more mundane work (gardener, chauffeur, housekeeper) will be equally entitled to an award under this head: if the loss is keenly felt.