EWJ August 62 2025 web - Journal - Page 96
Disadvantage on the Labour Market
Claims: Beyond Smith v Manchester
by Jessica Denton - Barrister at St John's Buildings
Introduction
Disadvantage on the labour market claims should be
carefully considered and scrutinised in every case involving an injury with permanent consequences. The
label Smith v Manchester is, often incorrectly, attached to
these claims to the extent that they are now, at least
presented, as almost synonymous with one another.
This article sets out the different ways in which claims
for disadvantage on the labour market can be advanced for claimants and reflects on how challenges
may be advanced by defendants.
Quantifying a Smith v Manchester award appropriately
can be nuanced and complex. If the risk of longer periods of unemployment in the future is relatively modest because the permanent effects of an injury are
minor, then a lesser sum than one year’s annual earnings could be reasonably expected or contended for.
Further, these claims are vulnerable to challenge in
their entirety if the underlying factual basis of the claim
has not properly identified and/or where the medical
evidence supports a disadvantage but only in limited
circumstances. For example, where medical evidence
supports a disadvantage for any occupation involving
repeated heavy lifting, there is no “real” risk that the
disadvantage will arise for a claimant who has a career
in accountancy and would never work in anything
other than desk-based role. In this example, the disadvantage would never arise and, applying Smith, no
separate award should be made, and the claimant is,
arguably, appropriately compensated for the theoretical disadvantage on the labour market caused by the
injury by a modest uplift to the PSLA award. In each
case, it is important to consider all relevant circumstances including, but not limited to, a) the Claimant’s
occupation, b) the nature of the disadvantage, c) the
security of the Claimant’s employment/work activity d)
age, e) qualifications and f) work history.
What is a disadvantage on the labour market claim?
Claims for disadvantage on the labour market can be
advanced if a claimant is injured and, because of those
injuries, they are at risk of suffering a loss in the labour
market. The measure of loss may be obvious or extremely complex and the claims are highly variable.
Regrettably, and all too often, Schedules of Loss will
simply plead a claim for a year’s net earnings for disadvantage on the labour market under the banner of
Smith v Manchester without further explanation.
However, disadvantage claims may be advanced in
one (or more) of three ways:
l A “real” Smith v Manchester award.
l A Blamire award.
l A claim calculated using the Ogden tables.
What is a Smith v Manchester award?
It is helpful to re-examine the facts of Smith in the first
instance. S was a 51-year-old (at the time of trial)
cleaner who suffered a serious injury to her elbow and
shoulder in an accident at work. Despite her injuries,
she had returned to work but there were a number
of cleaning tasks that she was unable to do. The medical evidence supported a disadvantage on the labour
market if S was to lose her job with M. The court
found that there was a real risk that S would become
unemployed at some point in the remaining 14 years
of her working life, notwithstanding that S had given
an undertaking that they would continue to employ
her. At first instance a sum equivalent to four month’s
wages was awarded to S but this was substituted with
a sum equivalent to a year’s earnings on appeal.
In summary, before claiming damages on a Smith v
Manchester basis, it is important to consider whether
the claim truly is a Smith claim or whether the claim
should be advanced on different basis; this can have a
significant impact on the claim’s value. It is also important to examine whether the medical evidence has
adequately dealt with the disadvantage and if not, how
this ought to be remedied or gaps in the evidence
exploited if considering the claim from a defendant
perspective.
Blamire awards
Blamire awards are also broad-brush awards for
damages for disadvantage on the labour market but
are used where there are simply too many variables
for the Court to accurately assess damages on a multiplier/multiplicand basis and the evidence does not
support a Smith v Manchester award. Blamire awards
have been suggested to be a “last resort” ([2008]
EWCA Civ 194) and should not be used to circumvent the traditional multiplier/multiplicand approach
because there are some uncertainties or the
assessment is complex.
In order to recover damages on a Smith v Manchester
basis, the injured claimant must be employed/engaged
in work activity or will be immanently employed/engaged in work activity at the time of the resolution of
their claim.
They must prove, on the balance of probabilities, that
there is a “real” (i.e. non-trivial) risk that if they were
to lose their employment and enter the open labour
market then they would find it harder to obtain new
work. The very nature of Smith v Manchester claims is,
to borrow a phrase from Kemp & Kemp, predictable
but speculative.
EXPERT WITNESS JOURNAL
Blamire awards will typically arise where the injured
claimant’s future working pattern was unpredictable
for a variety of reasons, the most common factor being
age. Younger claimants may have considerable difficulty in evidencing what their future working pattern
and earnings would have been but for the accident,
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