Loss of Earnings

Loss of Earnings

An accident can impact your ability to work, but you’ve got to be realistic when it comes to how much you’ve been affected.

I had a pretty nasty accident involving fractures to my hip and one leg. I went with a local independent firm, but I cannot help feeling they are being weak with my case, and here is why.

I worked as a security guard at a high security and high prestige establishment. My job can involve, and actually did occasionally involve chasing and grappling people to the floor. All of my colleagues, like me, are ex-mllltary. Wrestling members of the public with control and restraint does not happen often, but I need to be able to deal with it.

The surgeon who had carried out the report for my solicitor said that I am not fit for my old job, but I am fit for most other security work, but it is minimum wage rubbish.

My solicitor is telling me that I need to get a job offer, otherwise a judge may not award me any future loss of earnings. But why should I get some dead-end job to keep the other driver’s Insurers happy? Surely my solicitor should be fighting my corner?

Answer

Your solicitor is fighting your corner, and I entirely agree with her. The medical evidence is that you are fit for most semi-sedentary type work. You are only in your mid 30s and your proposition is that you should not work again and the insurer for the other driver should pick up the bill for a life of leisure for you. You will lose on that argument.

The argument that you will run, no doubt, is that such security work is repugnant to you, but I am afraid it will not get very far. If the only work you could get involved a long commute or working nights or working overseas, the court would be sympathetic, but working the same job in a less prestigious environment is not likely to get home.

Your solicitor (and I have checked her out she is on the Law Society’s Personal Injury Panel and 15 years qualified, which is a pretty good indicator of competence) is advising you correctly that you should apply for jobs, have a big pile of job applications to put in front of the judge if the case goes to court, and if you have got six or eight months of relatively low paid security work a year as opposed to what was a well paid security job, the court will look at the difference between what you would have earned (which, after tax in your old job was £32,000 a year), compared against what you have made reasonable efforts to find after your accident which looks to me as though it is likely to pay around £10,000 a year, giving you an annual loss of £22,000 a year. That forms the basis of the loss of earnings for the next 30-plus years for you, so it is not a small sum of money.

You seem to want to go in front of a judge and say: “I cannot be arsed to find any work, so please pay me for all the money I have lost,” at which point the defendant’s barrister will make the absolutely routine submission that “this man clearly has a residual earning capacity. It is for the claimant to prove his losses.

Absent any real evidence as to what he could and should be earning he must fail on future loss of earnings” – a hard judge could go along with this line of argument, but i think that it is much more likely that the judge will assign to you what he thinks you might earn, and if he picks £25,000 out of the air, as opposed to £10,000, you not looking for work has cost you £15,000 a year until you are due to retire.

There is a concept in English law loosely called ‘mitigation of loss’, and whilst there are plenty of arguments about this, it means that if your conduct is so unreasonable that it breaks the loss between the original harm – in your case the motorcycle accident – and the loss, then the courts will not compensate.

Listen to your solicitor. She knows what she is talking about. Get yourself on to the jobs websites, have a sheaf of job applications, rejection emails, invitations to interview and an earnings record to put before the judge, and do not give the defendants the opportunity to massively under-compensate you, because you are being, I am afraid, a bit of a mix of stubborn and lazy. If you really want to cut off your own nose to spite your face, you are doing it exactly the right way.

Andrew Dalton

Fast Bikes September 2019

Posted by Andrew Dalton. Last modified: August 12, 2020 at 11:31 am

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.
Disclaimer: The legal advice and statements contained within this/these articles is correct at the time of printing. If you are seeking legal advice after a motorbike accident please contact us to speak directly with one of our lawyers.

Comments

  1. Carl JonesApril 27, 2020

    Definitely made me think. Great advice and nice to see you backing up another solicitor.

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"The Fast Bikes Legal Clinic is compiled by Andrew Dalton, and his bike riding barristers and solicitors at White Dalton Motorcycle Solicitors.

They deal with personal injury claims and their sister company, Motor Defence Solicitors, deals with all the motoring offences. They know everything about bike law, Andrew is a former London motorbike courier turned barrister and solicitor, and we know he's good.

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