Handicap on the Open Labour Market

Where an injured party is still in employment by the time their case comes to be resolved earning a comparable amount to before the accident they are unlikely to be able to claim for future loss of earnings.  However, the reality is that at some stage in the future they may lose their employment and find it more difficult to obtain a replacement job because of their injuries.  This is referred to as "handicap on the open labour market" and any damages for this element are referred to as a "Smith v Manchester" award.

To be entitled to an award you have to show that there is a serious risk that at some point in the future the injured person will be looking for a new job and their ability to find that job will be harder because of their disability when compared to an able-bodied person.

Historically judges sought to apply a mathematical approach to the issue, estimating how many months the injured person would be out of work because of their injuries and awarding the loss of earnings that would arise.  More recently a lump sum approach has been favoured, meaning judges give a specific figure without explaining how this has been calculated.  The Court of Appeal have accepted either approach as appropriate.

Experience in such a speculative area is invaluable, both when assessing the value of the claim, negotiating with the other side and putting forward the arguments at trial if the matter does not settle.  It is important that you are not part of your lawyer's learning curve.

We are here to help 24 hours a day 365 days a year.  Either e-mail us anytime, call (01296) 662770 (Nick) or (01525) 373322 (Richard) during the normal working day or (07973) 424178 in an emergency.