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High Court rejects 'Smith and Manchester' as the conventional approach to future loss claims

Citation: Sharma v Noon Products (QBD), Judgment 7th April 2011

Colm Nugent obtained judgment at the High Court for over £132,000 in damages for a security guard who had lost the tip of his index finger. 

Issues: Disability, Damages, Ogden 6 tables, Smith and Manchester Award

The Facts

Mr Sharma was injured when attempting to repair a dough-cutting machine at his workplace.  It started unexpectedly and sliced off the tip of his index finger.  The finger remained painful at trial and Mr Sharma had declined operative treatment.  In addition he suffered moderate post-traumatic stress disorder.

He was working as an unqualified repair engineer at the factory at the time of the accident.  After the accident he had found alternative work in security earning the same income as before the accident.

At trial the defendant argued that Mr Sharma was not disabled under the meaning ascribed in the Disability Discrimination Act and Ogden tables, Sixth Edition. 

Further, the defendant argued that if the claimant was disabled, it was only a ‘technical’ disability and therefore the “conventional approach” would be Smith & Manchester. 

In addition, the defendant suggested that as Mr Sharma did not have in fact any on-going loss of earnings, the Court should decline to make an award on an OT6 basis as this would over-compensate the claimant and instead a Smith & Manchester approach was more applicable.

The Judgment

In giving judgement, HHJ Judge Yelton agreed that the OT6 basis had now become the “conventional approach” and rejected the use of Smith v Manchester.  The finger injury caused him problems with manual dexterity as described in the Guidance Notes to the DDA 1995 and therefore he was satisfied he was disabled. 

Before the accident Mr Sharma worked for an agency and had no job security.  He now was directly employed and had been so for approximately three years and had much greater job security.  He was, in addition, not as disabled as many with hand injuries and this was a factor he had to bear these factors in mind in his approach to the assessment of future loss. 

The Judge reduced the Discount Factor from the standard 0.4 to 0.6 which resulted in a future loss of earnings of £92,000. 

He also awarded £22,000 for the finger injury and associated psychiatric injury, in addition to claims for travel, additional food, dry-cleaning and £10,000 past loss of earnings. 

The total award including interest was £132, 276.

A transcript will appear on Lawtel in due course.