Discounts – Future loss – Loss of chance – Loss of earnings – Sportspersons

Gary Smith & anr v Ben Collett CA (Civ Div) (Lords Justice Carnwath, Hughes, Lady Justice Smith): 17 June 2009

The appellant (S) appealed against an assessment of damages ([2008] EWHC 1962 (QB)) made after he admitted liability for personal injuries sustained by the respondent (C) during a football game.

C had been a member of a Premiership football club’s youth academy. When he was 18 years old, he had been playing his first game for the club’s adult reserve team when he fractured his right tibia and fibula. He never regained his former ability at playing football and subsequently stopped pursuing a career of playing professionally. Damages were agreed in part but the court assessed the loss of future earnings.

The judge accepted evidence that the worst scenario was that C would have played throughout his career for a Championship League club. She applied an uplift of 25% to reflect that C would have been playing for a club at the upper end of the Championship rather than an average club. She relied on a survey of wages to apply a 15% increase in the wages C could have expected to earn while playing in the Championship between 2007 and 2008, and estimated the same percentage for the following year. She finally applied a 15% discount to future loss of earnings to take account of the risk of injury and other contingencies. S submitted that (1) the judge had erred by treating C’s chances of playing for a Championship club as a certainty, subject to the discount for all contingencies, rather than assessing the appropriate percentage chance of playing for such a club; (2) the discount applied to future loss of earnings was too low; (3) an increase of 15% for the wages of Championship players applied to the period of 2008 and 2009 was excessive; (4) there was no evidence to support the 25% uplift applied to the annual Championship club salary.

Held: (1) The evidence that C would have achieved at least Championship level was very strong, as was the evidence that he would have played for a club at the upper end of that league. However, the judge had not ignored the risk that he might not have achieved that level; she had just thought that the risk was small and could most conveniently be considered together with the other risks. She had intended to take into account the risk that C’s career might not have turned out as well as expected. She had also included in her assessment the risk of premature termination for whatever reason. The judge had therefore not misdirected herself or failed to make any allowance for the risk that C might not have achieved a place in an upper end Championship club.

(2) The judge had put into balance the possibility that C might have done better than she had predicted. She had been entitled to take that view. She had not assessed C’s chances of playing in the Premier League on the basis that that was the best he could hope for, rather that that was what she thought was most likely. There were clear possibilities in both directions. A small possibility of a longer period in the Premiership would have quite a marked effect on lost earnings. A 1% increase in C’s chance of playing in the Premiership would counterbalance a 4% chance of him not achieving a career in the Championship. It was therefore clear that the 15% overall reduction was reasonable. (3) The judge had little by way of published figures on which to rely when looking at the annual wage increases for Championship club players. She had been entitled to hold that there would have been an increase and to do her best on the material available when assessing the amount. (4) There had been ample evidence to justify the judge’s approach in applying a 25% uplift to the annual Championship club salary.

Appeal dismissed.

Andrew Prynne QC, Oliver Campbell (instructed by Hextalls) for the appellant; Richard Hartley QC, Jonathan Boyle (instructed by Beachcroft) for the respondent.