With respect to tort claiming around the world, one frequent comment is that claiming will not increase very much because persons from developing nations may well have very limited claims for lost wages. That may be true in some cases, but the plaintiff’s bar of course seeks ways to move by that barrier. One way to do that is to focus on the prospect that the claimant might have been able to or perhaps planned to immigrate to a more developed country and would have been gainfully employed in the new country. Reposted below is a Mondaq article on that topic from the Kennedys law firm. The article provides a useful example of the arguments being advanced to support and oppose claims of that sort.

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United Kingdom: Kennedys’ Settlement Of Claim Involving A Polish Citizen Highlights Tactics For Defending Claims By Migrant Workers For Loss Of The Chance Of A UK Earnings Model

28 July 2009Article by Mark Burton, Partner

Kennedys has recently settled a claim by a Polish citizen for a fraction of the amount claimed by raising arguments in relation to the assessment of loss of a chance and making use of our network of international offices to gather relevant evidence.
In 2004, the Claimant in this case was studying for a business degree in Poland. She was the victim of a very unpleasant assault by an employee of a bus company whilst on holiday in London. Kennedys was instructed by the bus company.

Liability was not in dispute but significant issues arose in relation to quantum. In particular, the Claimant alleged that from the summer of 2005 she would have come to England and found employment at the average UK graduate starting salary and remained in employment here, receiving regular salary increases

Loss Of A Chance

Kennedys argued that the career model put forward heaped speculation upon speculation to the point where the Claimant failed to satisfy the threshold test of a “real or substantial chance” as required by law on loss of a chance. The numerous imponderables thrown up by the facts of the case included:

The fact that she might have decided to stay in Poland with her family.
She might have come over to the UK, not liked it or failed to find suitable work and returned home.

She might have worked in the UK for a while, then lost her job due to the recession or started a family and opted not to go back to work.
Following the approach adopted by the Court of Appeal in Langford v Hebran [2001] Kennedys advanced a model comprising 5 career options in descending order of likelihood. We proposed that the most likely option was that the Claimant would have worked as an estate agent in Poland, in line with her pre-accident work experience. We then assigned percentages to the chances of her obtaining additional income from better paid careers in both countries. Only a 10% chance was applied to the likelihood of her spending the whole of her working career in the UK.

Importantly, we argued that the Poles who did prosper by coming to the UK were those with a trade to fill a vacuum in the British market during the boom years, especially in the construction sector between 2004 and 2007. We did not accept there was a co-existing vacuum in the graduate sector or that Polish qualifications would necessarily be sufficiently competitive in the UK graduate market.

Kennedys’ London office worked on this case with our associated Warsaw office, which assisted with assessing the likely levels of income the Claimant might have attained in Poland and the significantly lower Polish rates for residual care and therapy.

Comment

The latest Government statistics show that over half a million people arrived to live in the UK in 2007. The highest inflow of any individual citizenship was from Poland, with an estimated 96,000 Polish citizens migrating into the UK that year. In this context it is not surprising that defendants and their insurers are seeing increasing numbers of claims involving migrant workers.

Invariably many of these claimants will seek to maximise their claims by alleging that their careers would have progressed in the UK. As the above case shows, it is important that defendants adopt a strong and careful approach to these claims. They should break down the possible career options and consider the realistic prospects of the claimant achieving these. If the claimant has returned home, evidence may be needed as to local rates for any residual claims. The financial difference between the two countries can often be quite striking. By these means, settlements at much more reasonable levels will be achieved