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10 July 2013

Evidence Insufficient for ‘Smith V Manchester’ Award

On 2nd January 2010 K, who was then 25 years old, was struck by the Defendant’s motor car.

Liability was admitted and K’s claim was progressed in respect of quantum only.

As a consequence of the accident K suffered a number of minor injuries and a more significant injury to his low back, which probably included compression of the articular surfaces of the facet joints in his lumbar spine.

With the passage of time and the benefit of physiotherapy treatment and facet joint injections there was some improvement in K’s condition but at 2 years 3 months post-accident he continued to experience “a persistent dull ache felt over the left side of the lower back”, which was aggravated by activity to the point of becoming severe on occasions.

It was the opinion of K’s orthopaedic expert that these residual symptoms were likely to persist on a permanent basis, although he was “hopeful” that there might be some further gradual improvement in K’s condition up until 2017.

At the time of the accident K worked full-time as a PE teacher in a secondary school and part-time (2 to 3 evenings a week and 1 day a weekend) as a youth coach for a premier league football club.

After a short period of absence and an initial return to light duties, K was able to resume his normal work both as a PE teacher and football youth coach, albeit with some degree of discomfort, and it was the opinion of his orthopaedic expert that K’s residual low back symptoms would not place him at any disadvantage in competing for such work on the open labour market.

It was, however, K’s ambition to become a full-time professional football coach and on his behalf it was claimed that his residual low back symptoms would place him at a significant disadvantage in competing for such work.

In particular, a Smith v Manchester award of £135,000.00 was claimed, which was said to represent 3 years earnings as a full-time professional football coach, on the basis that:

  • Prior to the happening of the accident the Claimant had already obtained a number of FA and UEFA coaching qualifications
  • Following the accident the Claimant had obtained all of the further FA and UEFA coaching qualifications that he needed to become a full-time coach at the highest level of professional football
  • A witness statement from Paul Ince, a former professional footballer and football manager, stated that K was “a very capable coach” and that he intended to give K a full-time coaching role when he obtained his next managerial appointment
  • In answer to Part 35 questions K’s orthopaedic expert had agreed with the proposition that “an increase in physical demands as a professional football coach may lead to an increase in symptoms which could be incompatible with [K] fulfilling that role”

The Defendant resisted the Claimant’s claim for a Smith v Manchester award of any amount on the basis that:

  • The fact that K had been able to complete his coaching qualifications without apparent difficulty was indication that his ability to work as a full-time professional football coach was unlikely to be impaired
  • The fact that Paul Ince would be prepared to give K a job as a full-time professional football coach was another indication that his ability to work in such a role was unlikely to be impaired
  • The assertion that being a full-time professional football coach would be more physically demanding than being a full-time PE teacher and part-time youth coach was in fact an assumption that had been made on behalf of the Claimant without any evidential basis
  • In the absence of any evidence that K’s combined earnings as a full-time PE teacher and part-time youth coach were less than he could earn as a full-time professional football coach, there was no evidence that K would suffer any loss in the future even if his residual symptoms did impair his ability to work in the latter role

At first instance the District Judge accepted all of the Defendant’s arguments and dismissed K ‘s claim for a Smith v Manchester award in its entirety.

On appeal by K the Designated Civil Judge upheld the District Judge’s decision and dismissed K’s appeal.

In particular, the Designated Civil Judge not only accepted all of the arguments that had been raised on behalf of the Defendant but he was also highly critical of K’s failure to obtain:

  • Any proper evidence from current coaching professionals as to his chances of becoming a full-time professional football coach
  • Any proper evidence as to the level of earnings that he might expect to earn as a full-time professional football coach
  • Any evidence at all as to the physical demands of being a full-time professional football coach
  • Any proper evidence as to the extent to which his ability to work as a full-time professional football coach might be impaired by his residual low back symptoms

In short, this was a claim where a substantial Smith v Manchester award may well have been merited but the claim failed due to the claimant’s failure to properly evidence it.

TIM GROVER
Counsel for the Defendant

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