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

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...