How the UK courts assess future losses of earnings for professional athletes in claims for career-ending injuries
Excellent health is the key to success in professional sport. If an injury or accident that is not the athlete’s fault ends a promising career, how will the Court assess the losses of earnings? This article considers that question in relation to the particular issues relating to claims often brought for young athletes whose future may be difficult to determine.
Even before liability is resolved, either side may and usually will make offers to settle the case, which may well have costs consequences.1 Additionally, the case and costs management will partly depend on the likely level of damages. So, the possible value of the case will be in the athlete’s mind (and the lawyer’s mind) from the beginning.
This article examines three specific possible heads of loss:
losses of future earnings as a professional athlete;
losses of earnings after retirement from sport; and
loss of ‘congenial employment’, which means the loss attributable to losing the ability to pursue an enjoyable and fulfilling profession.
The article contains a worked example of how the Court might deal with the evidence, together with a set of calculations at the Appendix.
A hypothetical example
Let us suppose that Phil Ball was a 22-year old professional footballer. He was playing Premier League football for a club which had historically moved between the Championship and the Premier League. Phil recently signed a three-year contract with the club. One morning he was driving to the training ground when a Range Rover swerved into his path causing a head-on collision. His legs were trapped in the car because of the impact, and he ultimately had one of his legs amputated. His football career is over.
He has consulted lawyers, who advise that he might have a claim against the other driver.2 The other driver admits that he caused the accident. But how much is Phil entitled to claim? An amputation case will involve analysis of claims for costs of care, prosthetics, accommodation and therapies. Those elements of the case are beyond the scope of this article and, anyway, will not be related to Phil’s football career. However, the claim for future losses of earnings raises unusual issues because so few people manage to earn their living in this profession. Additionally, the likely length of the career is relatively brief and employment thereafter is unpredictable. Phil’s lawyers (and their opponent acting for the car driver’s insurers) will need to prepare their cases carefully.
Assessing Phil’s losses of future earnings as a professional footballer
Phil had an exciting and potentially lucrative career ahead of him. He was playing Premier League football. His former club have now been relegated, and his previous contract had a clause that his salary would be halved on relegation. Phil (of course) says that he would have tried to transfer back up to a Premier League club. Now he cannot play football at all. He is working in his local supermarket, but the financial rewards pale in comparison to his previous salary in football and he has lost the satisfaction of his former job.
Can he claim the difference in wages? The answer is yes, but good quality evidence will be needed by both sides. Phil’s case will emphasise his quality as a player and his possible prospects; the insurers will insist that football is a risky business and discourage the Court from awarding large damages for speculative claims.
Both sides will know that professional football is extremely competitive. There are twists and turns in any career, but these are magnified in the life of a footballer. The margins between playing Premier League and Championship football are fine, but the difference in remuneration can be huge. An injury can lay waste to a promising in career in an instant. Even without injury, a player may prove to be better or worse than was expected when he was 22 (Phil’s age, in our example). These features mean that losses of earnings are especially difficult to assess for someone like Phil.
If the case comes to Court, the Judge will try to calculate Phil’s chance of pursuing his football career. In our example, the Court would begin by looking at Phil’s anticipated "but for" earnings. There will then be a percentage discount to reflect the chance that he might not have had that successful career. This method has been used in two previous cases involving footballers - Appleton v El Safty3 and Smith v Collett.4
Smith v Collett concerned the claim of a Manchester United youth player who had suffered a career-ending injury from a bad tackle during a reserve game. He sued the player who tackled him and that player’s club. The player and club admitted negligence, but quantum was disputed. Mr. Collett was ultimately awarded £3.8 million for future loss of earnings. The Defendants’ appeal to the Court of Appeal failed.
At first instance, Swift J. had concluded that Mr. Collett would at least have played in the Championship for 11 years and had a 60% chance of playing in the Premiership for one third of that time. Since he had been injured as a youth player and had never played a first team game, that might seem a surprising conclusion. But Mr Collett had a plethora documentary and witness evidence to support his case. Sir Alex Ferguson testified that he had a glittering career ahead of him, as did Gary Neville and the Youth Coach at the time. Mr. Collett had won a prestigious Manchester United award in the previous season (previous winners included Ryan Giggs and Paul Scholes). His contemporaries attested to his skill and potential as a player, and to his personal qualities. The Judge broadly accepted this evidence and allowed the large majority of the earnings claim
So how should our hypothetical Claimant, Phil Ball, try to maximise his claim – and how should the Defendant’s insurers try to minimise it?
The lawyers representing both sides of the case should seek as much evidence as possible about Phil’s playing abilities and his future prospects in the professional game. Phil’s lawyers will seek to show that he had a long and lucrative career ahead of him, whilst the Defendant’s insurers will seek to show that he was unlikely to be successful and he may have become injured anyway. There are three main sources of that evidence.
First, the parties might call witnesses of fact who have seen him play and can attest to his abilities. Mr Collett had Sir Alex Ferguson and Gary Neville singing his praises before the Judge. But the Defendant’s insurers might find contemporaries or coaches who could give evidence that he was not a player of Premier League quality. It is vital to have witnesses who know the player well and can give an indication of career prospects. Important questions will include, where are Phil’s former team-mates following the relegation their former club? Have they been stuck with lower salaries in the Championship or transferred back up to the Premiership? Presumably there are some players in each camp, and the insurers will emphasise that there are more "losers" than "winners" in professional football. The critical question will be whether Phil can persuade the Court that he would have been one of the winners.
Second, the parties could call expert witnesses. The Court’s permission would be needed under Civil Procedure Rule (CPR) Part 35 and this is unlikely to be given unless the claim is of high value. The probability is that if the Claimant is given such permission, the Defendant will want their own expert evidence. In Phil’s case, the possible earnings will probably be sufficient to justify experts, separately instructed by each side. The experts should give a career forecast to include information about his probable earnings in the Premier League and, latterly, elsewhere. Mr Collett’s expert was a former professional footballer/manager who had also been heavily involved in youth development. The Defendants in Mr Collett’s case called a Professor of Sports Management and Finance, who was instructed to assess statistical evidence as to his chances of pursuing a successful career as a footballer (and his likely earnings). The Judge attached little weight to the statistical evidence; she preferred the testimony of coaches and contemporaries who could attest to the Claimant’s individual attributes. This suggests that in Phil’s case the parties would probably be well advised to instruct experts who have hands-on experience of the game and (preferably) of Phil, rather than a more theoretical knowledge of possible career forecasts.
We would add that in a case of this kind, the parties should be alert to the need to use experts who understand the Court process properly. A written report should be easy to understand and its conclusions must be properly supported. A good expert will maintain his or her position during discussion with a counterpart. If the case comes to trial, oral evidence will be given in a balanced and sensible way. These requirements of expert evidence are universal. But in the context of an unusual case such as Phil’s, it may be more difficult to find experts who understand litigation as well as football. The right choice of expert may make the difference between winning and losing the earnings arguments.
Phil’s medical history will be analysed and deployed by both sides. If Phil has a history of injuries, then the Defendant’s insurers will emphasise the likelihood that Phil’s career would have been cut short by injury anyway. On the other hand, if Phil’s medical history shows perfect health, Phil’s lawyers can emphasise the likelihood of a long and healthy playing career.
A final point to note is that the parties will be mindful of Phil’s earnings prospects as an amputee. Does the job in a supermarket adequately mitigate his loss? Could he find more rewarding work (in both senses) elsewhere? Perhaps not, but the insurers are entitled to insist that the experts consider all the options. The earnings claim will be the difference between what Phil probably would have earned in football minus his realistic earnings now.
Assessing Phil’s losses of earnings after retirement from sport
Football players retire from the game early in their lives – few are still playing at the highest level beyond the age of 35. But a well-trodden path from the pitch leads to football management. Football managers enjoy prestige and a good salary (albeit nothing like the players, except in the most unusual cases). Phil says that he wanted to be a manager after a successful career in the Premiership. His case would be that you need many years’ experience playing at a high level to stand a chance of getting the manager’s job at any decent club. The insurers will say that the prospects were small anyway and/or that the injury will not necessarily prevent Phil from working as a manager, commentator or journalist. In other words, the insurers may assert that loss of the leg will not necessarily end Phil’s career in sport.
So, can the lost opportunity to become a football manager form the basis of a damages claim? Yes, but it will not be easy because of the numerous uncertainties. Since Phil is only 22 years old, what will he do (or what may he have done) at the age of 35? Again, evidence from the sports experts and from colleagues will be useful. They would need to address Phil’s personal qualities (including leadership ability) and he would have to explain how and why he can be confident that he would achieve management posts. The insurers may well counter this with expert and perhaps factual evidence of their own.
In Smith v Collett the Judge declined to award the Claimant anything for losing the chance of becoming a manager or a coach. She regarded it as “too speculative”. In contrast, Christopher Clarke J. in Appleton v El Safty awarded the Claimant £60,000 on the basis he had lost a 25% chance of becoming an assistant manager in Championship for a ten-year period. This case concerned a young football player whose career was cut short by clinical negligence. The Claimant had been playing for West Bromwich Albion and was expected to continue to appear in the Premiership for the next five years but for the negligence. The Judge was particularly impressed by the Claimant’s qualities of dedication and leadership and took account of his employment at the time of the trial as a football coach.
Assessing Phil’s loss of "congenial employment"
This type of claim was brought by the Claimant in Appleton (see Paragraph 85). The Judge awarded £25,000 to reflect his loss of congenial employment (i.e. the loss attributable to losing the ability to pursue an enjoyable and fulfilling profession). The Court accepted submissions on behalf of the Claimant that “[t]o play professional football at the highest level is many a schoolboy’s dream. The authors understand that this is the highest award for loss of congenial employment ever awarded.5."
The lawyers acting for Phil would need to provide evidence to substantiate his assertion that he enjoyed playing football more than working in the supermarket. The lawyers should obtain a detailed statement from him about the nature of the job and his enjoyment of playing football in comparison to his work now. Again, statements from friends and former colleagues would probably bolster the claim. In practice, it is difficult to see how the insurers could sensibly counter that.
A worked example
How is a court likely to deal with all of this evidence? The judge must decide what Phil would have earned but for the accident. In very broad terms, the judge will approach the calculation in the following way:
Stage 1 – the judge must what Phil’s playing career probably would have looked like. Phil’s lawyers will say that he would have enjoyed a career in the Premiership, whilst the Defendant’s insurers will argue that he would have played for a Championship club. The judge must make a finding based on the evidence which they hear during the trial. In our example, the finding might be:
Phil would have played in the Premiership for 5 years, and then for a mid-level club in the Championship for a further 8 years until the age of 35.
Stage 2 – the judge must place a financial value on that finding. This involves analysing data or evidence on footballer’s earnings to identify his likely salary. The Defendant’s insurers will pick seek to argue that his salary would have been at the lower end of the spectrum, whilst Phil’s lawyers will argue that the judge should opt for a higher figure. A finding by the judge in our example might be:
Phil’s salary in the Premiership would have started at £1million pa, which would have increased by 13% pa for the following five years. In the Championship his salary would have started at £300,000 pa, increased by 7% annually.
Stage 3 – the judge must make a finding as to the chance that Phil would have become a football manager. The judge’s finding in our case could be:
Although Phil’s lawyers have urged me to find that he had at least a 40% chance of becoming a manager after his player career, I cannot make such a finding. The evidence is not strong enough, and I find such a claim too speculative to form the basis of any damages claim.
Stage 4 - the judge would need to decide what discount to apply for contingencies. In other words, the judge must decide what percentage of the above total should be deducted to reflect the risk of injury or other contingencies. Phil’s lawyer should argue that the evidence of his playing abilities is so strong, and his previous health so good, that the discount should only be very small. On the other hand, the Defendant’s insurers will argue that a large discount is appropriate because of the inherent uncertainty in life as a professional footballer, plus accounting for any previous disposition to injury shown by Phil’s medical history. The judge’s finding might look like:
I must take into account the risk that Phil would have suffered a career-ending injury anyway. I also must bear in mind that he may have had a more successful career than I have found. Doing the best I can, I will apply a 20% discount..
Stage 5 – the judge will need to consider whether Phil has mitigated his loss by taking the job in a supermarket. The Defendant’s insurers may well argue that Phil has not made enough of an effort to find a well-paid job, so the judge should use a higher figure than Phil’s current salary of £18,000 a year at the supermarket. The judgment in our example could state:
Phil has a job paying £18,000 a year. I disagree with the Defendant that the Claimant has failed to mitigate his loss by finding a higher paid job. I will, therefore, assess the loss on the assumption that he will earn £18,000 pa until the age of 70 but with a significant discount for risks other than mortality to reflect the severity of his disability and his relative lack of education.
Stage 6 – the Judge will consider whether between the ages of 35 and 70 Phil would earn less as an amputee than he would have earned as a retired footballer in good health. Even if Phil did not become a football manager, he would have had more options if he had been fully fit. The Court would probably accept that this will be a significant claim. In the appendix, we calculate the anticipated earnings using £18,000 as the net figure with a discount for risks other than mortality lifelong.
We have included an Appendix at the bottom of this article that shows the detailed and somewhat technical calculations that would be required here. Assuming that the claim was resolved two years post-accident, the past claim would be £1,704,000 less supermarket earnings in the first two years post accident. The future losses, taking account of residual earnings, would be £7,509,377.
Stage 7 – the judge will make a finding on whether loss of congenial employment should be included in the damages figure. Based on the claim of Appleton, Phil will be on relatively strong ground, and it is unlikely that Phil would receive anything less than £25,000 under this head of loss.
It will be seen that if the past losses of earnings are of the order of £1.7 million and the future losses exceed £7.5 million, Phil’s claim is very valuable. The figures are broadly comparable with the Collett award allowing for inflation and changes to the discount rate. Although this article has focused on two reported trials, we emphasise that the large majority of personal injury claims end in settlement. The authors suggest that the complex earnings claims disclosed by a claim such as Phil’s require careful preparation of expert and factual evidence of both sides. The calculations will also require an understanding of the use of multipliers for future losses and familiarity with the Ogden tables which help actuaries, lawyers and others calculate the lump sum compensation due in personal injury and fatal accident cases6. This will maximise the prospects of settlement and if the matter does come to trial, the Court will be assisted by clear presentation of difficult issues.
APPENDIX – WORKED CALCULATIONS ON LOSSES OF EARNINGS
Earning £1 million pa in the Premiership, increasing by 13% pa from ages 22 to 27.
Then earning £300,000 pa increasing by 7% pa in the Championship ages 28 to 35.
All figures rounded to 2 decimal places. Assumes that trial/settlement is 2 years’ post-accident.
1. Past losses of earnings
£1 million (age 22)
£1.13 million (age 23)
TOTAL: £2.13 million less 20% discount for uncertainty = £1,704 million less his earnings in the supermarket (which will be small because he will have needed some time to recover from the amputation).
2. Future losses of earnings
In the Premiership (ages 24 – 27)
£1.29 million (age 24)
£1.49 million X 1.00257 = £1.49 million (age 25)
£1.71 million X 1.005 = £1.72 million (age 26)
£1.98 million X 1.0075 = £1.99 million (age 27)
TOTAL: £5.2 million. X 0.8 (discount for career risk) = £4.16 million
In the Championship (ages 28-35)
£300,000 X 1.018 = £303,000 (age 28)
£325,806 X 1.012 = £329,716 (age 29)
£354,533 X 1.015 = £359,851 (age 30)
£386,937 X 1.0177 = £393,786 (age 31)
£423,425 X 1.0202 =£431,979 (age 32)
££464,493 X 1.0228 = £475,084 (age 33)
£510,842 X 1.0253 =£523,766 (age 34)
£563,190 X 1.0279 =£578,903 (age 35)
TOTAL = £3,396,085 X 0.8 (discount as above) = £2,716,868
3. Future earnings thereafter "but for" injury
Assume average earnings. Gross mean male earnings in 2018 were £7439 per week which is about £38,000 p/a. This equates to approximately £30,000 p/a net. If, but for the accident, he had worked from ages 35 to 70, the earnings would have been as follows:
Earnings Multiplier ages 35 to 70 = 34.9010
Enhancement for 9 years early receipt = 1.0228 (Ogden Table 27)
Net multiplier (34.90 X 1.0028) = 35.70
Risks other than mortality = 0.8911
Net multiplier = 31.77
But for earnings from age 35 to 70 is therefore:
£30,000 X 31.77 = £953,100.
TOTAL but for future earnings would have been therefore: £4,160,000 in the premiership + £2,716,868 in the championship + £953,100 thereafter = £7,829,968
4. Earnings with disability
If the earnings are £18,000 from ages 24 to 70, the starting point from Ogden Table 11 will be a multiplier of 46.87.
However, because the claimant has a disability, this will be significantly reduced because of risks other than mortality.
Using Table B at page 66 of Facts and Figures, we see that the discount for a man aged 24 in work with a low level of education and with a disability, the discount is 0.38.
The multiplier is therefore 46.87 X 0.38.
The earnings that the claimant will now achieve will therefore be:
£18,000 X 46.87 X 0.38 = £320,591
5. Total Net Earning Claim
TOTAL will therefore be £7,829,968 - £320,591 = £7,509,377
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Barrister, Outer Temple Chambers
Harry Trusted is a first class trial advocate and negotiator, dealing with clinical negligence and personal injury claims. He is regularly instructed on behalf of claimants and defendants by specialist solicitors in high value claims.
He was counsel for the successful claimant in Downing v Peterborough NHS Trust  EWHC 4216 which established the benefits of making a successful claimant’s Part 36 offer. He also appeared in Stucken v East Kent Hospitals Trust  EWHC 1047 which was concerned with allegations of clinical negligence arising from ophthalmic surgery.
In 2017 and 2018, he settled claims with an aggregate value in excess of £150 million. Harry frequently leads and is led by others – see for example Rupasinghe v West Hertfordshire NHS Trust  EWHC 2848.
For many years, Harry has been a top-rated barrister in the Legal 500 and Chambers UK; please see the Testimonials section.
Harry is a founder editor of Facts and Figures which has been published annually since 1996 and is the standard book used by advocates and judges dealing with substantial injury claims. He has also contributed to the forthcoming new edition of “Cross Border Claims” by Sarah Crowther QC.
Other publications, including numerous articles. In December 2018, the Journal of Personal Injury Law will publish Harry’s account of the first successful Lariam claim brought against the Ministry of Defence which settled at the end of 2017. Harry has also given Webinar broadcasts in association with providers MBL (Management, Business, Law). These deal with a wide variety of topics including brain injury, perinatal birth claims and calculation of losses arising from catastrophic injury.
Barrister, Outer Temple Chambers
Patrick Tomison joined Chambers in September 2019 upon successful completion of his pupillage. During pupillage, Patrick gained experience across the core practice areas of chambers, including pensions and commercial, employment, clinical negligence and personal injury, and public law.
Prior to commencing pupillage, Patrick worked in the Court of Appeal as the judicial assistant to Sir Ernest Ryder, the Senior President of Tribunals. While at the Court of Appeal, Patrick worked on cases involving, among other things, employment law, public law, immigration law, clinical negligence and commercial law. Patrick has also worked as a research assistant for the Law Commission in the public law team.
Patrick studied Law with German Law at Oxford University (2010-2014) where he received a First. After the completion of his studies, he worked as a paralegal for the Payment Systems Regulator where he developed interest and experience in financial regulation. He then worked as a research assistant at the Law Commission from 2015 to 2016. Patrick was based in the public law team and worked on the Mental Capacity and Deprivation of Liberty project.
Patrick completed the Bar Professional Training Course at BPP London. He was awarded scholarships by both Gray’s Inn and BPP to complete the BPTC and was called to the Bar by Gray’s Inn in 2018.
Patrick is committed to pro bono representation. He has volunteered with the Citizens Advice Bureau in Whitechapel and he is a current volunteer with the Free Representation Unit, where he has represented clients with cases in the employment tribunal and the social security tribunal. Patrick continues to be involved with the FRU as Secretary of the Management Committee.