Ogden 6 and exemplary damages in personal injury claims

Citation: Aman Sharma v Noon Products Limited (7th April 2011) QBD HHJ Yelton

Mr Sharma worked for a very substantial company when he was injured during the course of his work as a result of working on a defective item of equipment in respect of which he had not been trained.  His index finger was partly amputated. Liability was initially denied but later admitted.

The employers were the subject of an HSE prosecution and given the maximum available fine of £20,000. The HSE prosecution report noted that safety took second place to maximising production. 

Mr Sharma claimed Exemplary Damages in addition to general and special damages on the basis of gross negligence compounded by untruths told by the defendant’s employers in their witness statements which – it was argued – indicated that the defendant was motivated by making profit rather than by treating their employees, or those who worked on their sites, properly.

On that basis it was argued that the case comes within one of the categories set out in the well known case of Rookes v Barnard – in other words where one makes a profit through the tort.

The court noted that there was no reported case in which exemplary as opposed to aggravated damages have ever been awarded for personal injuries of this sort.  The judge noted in addition that the editors of Kemp & Kemp indicate that they think it is very difficult to conceive of circumstances in which a claim for exemplary damages for personal injury could be recovered.

The judge accepted that he could not say that there are not circumstances in which such a claim could succeed but decided that this case was not one in which exemplary damages should be recovered.

He agreed that the defendant was “very negligent” and “did not tell the truth about what happened when the matter was being investigated”.  The judge declined to speculate on circumstances in which such a claim might occur, but ruled that this was not a case in which Exemplary Damages were appropriate. 

It therefore appears that even where an employer has been grossly negligent, has been prosecuted by the HSE to the fullest extent, has been found not to have been truthful to the prosecuting authorities, and – arguably falls within the Rookes v Barnard category of cases in which exemplary damages may be awarded, the threshold is even higher in PI claims.

It seems that the learned editors of Kemp are right – and it remains very difficult to imagine any circumstances in which the court will award Exemplary Damages in an EL personal injury claim.