Loss of earnings — loss of earning capacity — loss of congenial employment — appeal against assessment — approach to loss of earnings on account of loss of chance of promotion
In May 2008, P sustained, , an anterior wedge collapse of the L1 vertebrae, in an accident on a barge for which D2–3 were liable. P was then Deputy Caption after having being a seaman for 22 years. His job required heavy manual labour. By August 2009, P became a Chief Mate on a tug boat within the same company, which required lighter duties while paying a lower salary. The company said in a February 2010 letter that he would have been in time promoted to barge captain if not for the accident and present condition.
In September 2011, the lower court awarded P pre-trial loss of earnings based on the difference between P’s actual earnings and what he would have earned as Deputy Captain. The award for future loss of earnings comprised a reduction in earnings as Chief Mate compared to Deputy Captain and the loss of a future chance of promotion to Captain. An award for loss of earning capacity – about six months’ wages as Deputy Captain - was made on the basis that as P had no other special skills, he would be disadvantaged in the labour market if he lost his job. No award was made for loss of congenial employment as P still worked as a seaman and occasionally performed certain navigation duties of a captain or deputy captain on the tug boat. P appealed and D2–3 cross-appealed.
Held, allowing both the appeal and cross-appeal in part, that, inter alia:
Loss of chance of promotion
The likely timing of the promotion prospect was relevant to both the pre-trial and post-trial losses.
Future loss of earnings
The only variation to this was that it should have been calculated based on the difference between the wages of Chief Mate, not Deputy Captain, and those of a watchman.
Loss of congenial employment
It was not a prerequisite to an award for loss of congenial employment that the plaintiff must have left his original profession. Here, it was allowed because significantly, P had lost his chance of promotion and his present job was under regular review; he had gone from being an asset to a burden to his employer and colleagues on the tug boat. He had commanded respect as the deputy captain and team leader on the barge and derived much job satisfaction, whereas his present position was limited, inferior and undermined his self-esteem.