Claiming for a Future Loss

Hardly a week goes by without one of my clients telling me that, but for the accident, he would have increased his earnings and that the accident has deprived him of this opportunity. Conversely, insurers argue that the claim is so speculative that it should be dismissed or heavily discounted to reflect future uncertainties.

Some of you might remember the case of Ben Collett who was a gifted youth footballer with Manchester United when he suffered a serious leg injury during a reserves game, which effectively ended his professional career. He was awarded in excess of £4.5m in respect of future loss of earnings as a professional footballer.

He had been identified by a scout at the age of nine and recruited to Manchester United’s Youth Academy. At 16 he was offered a two year scholarship by the club with the promise of a one year professional contract thereafter. In the season before the accident he played for the under 19s and reserves team and was a member of the club’s team for the FA Youth Cup. He scored a goal in the final which the club won. This was one month before his accident in May 2003. After his accident, whilst his recovery was in doubt he was awarded the Jimmy Murphy Award for the Young Player of the Year. Unfortunately he never recovered satisfactorily from the fracture and his professional career ended.

Factual evidence in relation to his ability, achievements, character and attitude was very supportive. The claimant received a series of glowing character reports from, amongst others, Alex Ferguson, Gary Neville and Paddy Crerand.

Expert evidence related to the claimant’s prospects as a professional footballer. His expert, Howard Wilkinson, considered that he would have played professional football at least at Championship level and had a 60% chance of playing in the Premiership for at least some part of his career. The defendant’s expert thought the claimant would struggle at Championship level and not succeed in the Premiership. This evidence was not accepted by the judge.

The defendant called Dr Gerrard, a professor at Leeds University in sports management and finance. Although not a statistician he assessed the available statistical evidence and concluded that the claimant had a 10.53% chance of a full career at Premiership level and a 14.29% chance of a career at Championship level.

These findings were challenged, not least because the figures took no account of the claimant’s personal attributes and achievements, nor the opinion of his prospects held by others.

The claimant called a football agent and the defendant relied on two surveys which had been published in The Independent. The judge accepted the figures in the latter survey.

In conclusion the judge held that before the date of trial the claimant would probably have been sold by Manchester United to a Championship club and would have been so employed at the date of trial. During two years of that period she discounted his earnings of £5,000 per week by 5% to reflect risks of injury and other contingencies.

As to future loss of earnings the judge rejected the defendant’s argument that he had only 40% chance of earnings at Championship level. She considered that the basis of the award would be earnings at Championship level. As to Premiership earnings, she believed that the claimant would have succeeded in playing in the Premiership for some part of his career. She considered that there were “endless possible permutations” and accepted that the claimant’s prospects of playing for one third of his career in the Premiership were 60%. This alone produced a figure for loss of Premiership earnings of some £1.4m, to be added to the loss of future earnings of £3.25m at Championship level. Finally the judge dismissed the claimant’s chances of entry into football management as too speculative.

In order to succeed in this type of case it is necessary to investigate carefully the appropriate witnesses who will survive giving live oral evidence. Every potential weakness has to be closed off. There is no substitute for hard work in assembling such evidence. The goal must be to convince the court that it is a virtual certainty. Failing this, the court will heavily discount an award.

For defendants, trade figures and statistics are important, but these may not survive witness evidence asserting that the claimant was an exceptional performer. If this is likely to be the claimant’s case, defendants need to collate their own factual evidence. Few judges would accept statistical evidence in preference to glowing references from past employers.

Defendant insurers tend to argue that the claim is far too speculative and that fair compensation can be reflected with a modest lump sum award. This is unlikely to be the most effective response.