Protecting yourself in claims involving minor limitations in capacity for employment

November 13, 2023

by Chris Richards

Introduction

A lot of the time in the world of personal injury it is really obvious how someone’s capacity to earn a living has been affected by an accident.

If you are dealing with a case where someone has been catastrophically injured, they will have no capacity to earn a living. Your job may simply be to compare what they were earning before the accident to the big fat zero they are now earning.

You might also have a case where there has been a big cut to the amount that someone was earning. They were earning £50,000, but now they are earning £20,000. Again, this is fairly straightforward. You take that yearly loss and stretch it out for the rest of their career. It might be more complicated than that in practice, but that yearly loss is the starting point.

But a lot of the time, you are going to get cases where the effect on the capacity to work is less dramatic. The Claimant may have had a short period of time off work, a few weeks or months, but they then returned. You are going to get cases where the Claimant is now doing the same work, and the same hours, for the same money. They may have some minor limitations, but not really anything which is meaningfully standing in their way.

If you put your personal injury lawyer hat on, and you think back to the compensatory principle, you are trying to put your client back in the position that they would have been if the accident had not happened. Here, they are back to doing the same work, and the same hours, for the same money. Does that mean that there is no loss?

Well, sometimes it does. There are cases where there is genuinely nothing to claim. But sometimes there is a loss. And actually you can end up with a client who is doing the same work, and the same hours, for the same money, standing to receive quite a significant award of compensation.

These are often difficult cases. You should always be able to work out with precision the damages which a particular Claimant should get. Here, there is often a very wide range of potential answers. There can be a huge difference between the lowest award that might potentially be justified, and the highest. This may make you a bit nervous.

So how do we deal with claims where there have been minor limitations in capacity for employment? That is the purpose of this article.

Disclaimer

This article is meant to be a helpful introduction to the subject and is not advice to be relied upon. The law changes all the time and the facts of every case are different.

If any solicitors reading this would like some advice, please feel free to contact my clerks.

The approach to this article

The way that I am going to approach this article is to run through the questions which you should be asking yourself, in my view, when you get a claim like this.

Here are the four main questions to have in mind:

1. What has actually happened to the Claimant?
2. Has there been a reduction in earnings levels?
3. Does the Claimant meet the threshold for disability?
4. What if the Claimant does not meet the threshold for disability?

The case study: Anna

I thought it might be helpful to start with a case study.

It goes without saying that this is not a real person. However, I have taken inspiration from a few cases that I have dealt with.

Anna is 30 years old. She comes to you after an accident in 2021 where she has broken her ankle. We are about two years on, and she has made a good recovery. The fracture has healed and the metalwork has been removed.

Anna works as a waitress. She normally earns about £20,000 net. She has a degree in biomedical sciences.

After the accident, she had a few months off work, returned on light duties, and has eventually worked her way up to doing full hours.

You have valued the injuries. You have also calculated the past loss of earnings during the time where she was either off work or earning less. This is all pretty easy stuff.

But she then tells you that she is actually struggling a bit by the end of the working day. There is a lot of standing in her job, and by 5pm she is hobbling around. She can do her full hours, but she is not feeling great by the end.

You take a second look at the report from the orthopaedic surgeon you instructed. It says towards the end of the report, ‘the Claimant is disadvantaged on the open labour market’.

You think, uh oh. You probably need to do something about that. But what?

What has actually happened to the Claimant?

The first thing to do is to have a detailed discussion with the Claimant. This is a good way of really getting to the bottom of how the accident has affected them.

What is the situation at the moment in terms of their work? Are they able to carry out all of their duties? If not, have their duties been modified? Is there anything they are not able to do? What about the situation at home? Bear in mind that limitations at home can give you a good idea of the limitations that might be there at work.

Has there been a reduction in earnings levels?

The next question is whether the accident has caused any direct reduction in earnings levels.

You might be thinking – hang on, I thought we weren’t really considering cases where someone has had a drop in earnings levels. I thought we were thinking about cases where someone is doing the same work, and the same hours, for the same money.

We are. But there might still be a drop in earnings levels hiding away:

• Is there additional work that they have turned down (e.g. extra shifts)?
• A lot of jobs have quite a defined career path. If the Claimant is injured, are they no longer able to take up promotions and progress forward?
• Are they no longer able to take up different, better-paying work? Did they have aspirations to do different work which are now closed to them?

You may need to consider obtaining expert evidence if you encounter anything complex.

It is also sensible to remember that sometimes people can return to work only for things to go completely wrong. It is quite common for someone who has been quite badly injured to go back to work, keep pushing and pushing, and then come to a realisation that they just cannot continue. Don’t assume that the situation as it is at the present day will continue indefinitely. The conference is a good way of sussing out whether the Claimant having returned to work is going to be sustainable into the future.

You may remember Anna. We had a conference with Anna and she said that actually, she wasn’t wanting to work as a waitress for the rest of her life. If there accident hadn’t happened, she wanted to train as a paramedic. She has a degree, so that is not unrealistic. She doesn’t think she can do it now because of the manual handling required.

If we had seen that she had returned to work, for the same money, and not pushed any further, we would potentially have missed something quite significant.

Does the Claimant meet the threshold for disability?

The next question is whether the Claimant meets the threshold for disability.

Again, you might be thinking that this is not really the focus of the article. We are thinking about minor restrictions in capacity for employment. We are usually talking about people who have been able to do the same work, and the same hours, for the same money. Someone who is disabled isn’t the sort of person we are talking about, right?

The answer to this is that there are some legal definitions of disability which actually have quite a low threshold. A person who is able to do the same work, and the same hours, for the same money, may still be treated as being ‘disabled’.

This can have a huge impact on the amount of money which they are able to claim. We are going to look at how the calculations work later on. But, if someone is disabled because of an accident, you essentially assume that they are going to earn less in the future because of their disability. The Ogden tables include ‘reduction factors’ which adjust future earnings for disability. The reductions can be massive – 30%, 40%, 50% or more.

Another thing to mention is that a drop in earnings can go hand in hand with a Claimant being disabled. If you think about it, someone previously able to earn £50,000, but now earning £20,000, may well meet at least one of the tests for disability.

Let’s look at the definitions.

(A) Where do the definitions of disability come from?

Confusingly, there are three places where we get a definition of disability:

• Section 6 of the Equality Act 2010;
• Section 1 of the Disability Discrimination Act 1995;
• The Introductory Notes to the Ogden Tables (8^th edition).

Definition 1: Section 6 of the Equality Act 2010

Section 6 of the Equality Act 2010 reads as follows:

(1) A person (P) has a disability if —

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

(2) A reference to a disabled person is a reference to a person who has a disability.

That sounds quite sensible – a person is disabled if they have an impairment which causes a ‘substantial and long-term adverse effect’ on their daily activities.

The real spanner in the works comes from Section 212(1) of the Equality Act 2010:

General interpretation

In this Act., ‘substantial’ means more than minor or trivial.

In theory, a Claimant who is suffering from any restrictions which are ‘more than minor or trivial’ might meet the test for disability. That sounds a bit strange. We are looking at something here which is very different to the ordinary person’s definition of disability.

But it gets even worse. There is case law making clear that your job isn’t to look at the Claimant in the round, comparing what they can do alongside what they cannot do. You are actually just homing in on what they cannot do. Even if the Claimant as a whole is doing fine, those limitations can result in the Claimant being treated as being disabled:

Aderemi v London and South Eastern Railway Ltd [2013] ICR 591

“Because the effect is adverse, the focus of a tribunal must necessarily be upon that which a claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definitions of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.” [paragraph 14]

If we are using the definition in Section 6 of the Equality Act 2010, then potentially every Claimant with some sort of restriction ends up being treated as disabled. That doesn’t feel right. Let’s think back to the compensatory principle. If there is a good chance that someone will not actually suffer a loss, why should we give them hundreds of thousands of pounds?

The wacky results that come from using Section 6 of the Equality Act 2010

You may have heard of a case called Billett v Ministry of Defence [2015] EWCA Civ 773. This is one of the most important recent cases dealing with loss of earnings capacity.

The Claimant had a non-freezing cold injury which, to be fair to him, did cause him some problems. He struggled in cold weather. However, there was basically no impact on his work. The Claimant was working as a lorry driver and doing very well. He was working full time and enjoying the work. It was said as follows in the judgment:

“He is pursuing his chosen career as lorry driver, with virtually no hindrance from his disability. He secured employment with Framptons within one week of leaving the army. He has strong qualifications for lorry driving and an excellent CV. Furthermore the judge held that the claimant was “a hard working and capable man, who is likely to be sought after by employers” (judgment paragraph 38 (a))” [paragraph 96]

We are going to say more about the Ogden tables shortly. We are now using the eighth edition of the Ogden Tables. The seventh edition used the definition for disability in Section 6 of the Equality Act 2010. The Claimant in Billett was clearly disabled according to that fairly loose definition and was potentially going to receive around £200,000.

A great result for him, you might think. The Claimant is merrily working as a lorry driver with no appreciable hit to his earnings and gets a free £200,000.

The case went to the Court of Appeal and everything came to a screeching halt. The Court of Appeal said that no, in fact, it wasn’t right to use this approach. The Court of Appeal said that this approach effectively gave him too much and they awarded him two years of earnings as a lump sum award instead.

This led to a lot of angst about whether the approach to disability in the Ogden Tables could be trusted. Happily, the eighth edition of the Ogden Tables ditched the definition of disability in the Equality Act 2010, and so we can largely forget about it.

Definition 2: Section 1 of the Disability Discrimination Act 1995

There is a different definition in Section 1 of the Disability Discrimination Act 1995:

Meaning of “disability” and “disabled person”.

(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act and Part III of the 2005 Order if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

(2) In this Act and Part III of the 2005 Order “disabled person” means a person who has a disability.

You can see that the wording is identical to that in Section 6 of the Equality Act 2010. We have a physical or mental impairment, which has a substantial and long-term adverse effect, on the ability to carry out normal day-to-day activities.

However, the threshold for disability in the Disability Discrimination Act 1995 has ended up in practice being a bit more difficult to meet. The Introductory Notes to the Ogden Tables refer to this test as being “more restrictive”.

Schedule 1 of the Disability Discrimination Act 1995 helps us with some of the things which can have an adverse effect on the ability to carry out normal day-to-day activities:

“An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following—

(a) mobility;

(b) manual dexterity;

(c) physical co-ordination;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.

(i) taking part in normal social interaction; or

(j) forming social relationships.

I am not going to spend time examining the differences between this test and that in Section 6 of the Equality Act 2010, simply because the definition in the Disability Discrimination Act 1995 has been ported across into the definition of disability in the Introductory Notes to the Ogden Tables, which I will deal with next.

Definition 3: The Introductory Notes to the Ogden Tables (8^th edition)

The Introductory Notes to the Ogden Tables are crucial and need to be examined by every personal injury practitioner. They include the definition of disability which is relevant for the Ogden Tables, and they also give some useful guidance about when a person will be disabled within the meaning of the Ogden Tables:

“It is important to note that the definition of disability used in the Ogden Tables is not the same as that used in the Equality Act 2010. The Ogden definition of disability is based upon the definition of disability set out in the Disability Discrimination Act (DDA) 1995 (supported by the accompanying guidance notes). This is because this is the definition that applied at the time of the underlying LFS research which underpins the suggested Table A to D reduction factors. In addition to meeting the DDA 1995 definition of disability, the impairment must also be work-affecting by either limiting the kind or amount of work the claimant is able to do.” [paragraph 69]

The notes state that the Ogden Tables definition of disability is defined as follows:

“’Disabled person’:       A person is classified as being disabled if all three of the following conditions in relation to ill-health or disability are met:

(i) The person has an illness or a disability which has or is expected to last for over a year or is a progressive illness; and

(ii) The DDA 1995 definition is satisfied in that the impact of the disability has a substantial adverse effect on the person’s ability to carry out normal day-to-day activities; and

(iii) The effects of impairment limit either the kind or the amount of paid work he/she can do.

‘Not disabled’: All others” [paragraph 68]

The notes define ‘normal day-to-day activities’:

“Normal day-to-day activities are those which are carried out by most people on a daily basis and which include those carried out at work.” [paragraph 69]

There is some detail about what is a ‘substantial adverse effect’, but it is not especially clear:

“The meaning of the word ‘substantial’ has changed over time in both law and common understanding such that the threshold whereby an activity-limitation qualifies as ‘substantial’ (and therefore amounts to a disability) was lower in 2019 than it was when the data were collected. This is reflected in a higher disability prevalence rate in the working-age population which was around 12% in 1998 and is around 19% in 2019, reflecting an increased reporting of qualifying activity-limiting impairments rather than an increase in the number or severity of such impairments.” [paragraph 69]

The notes also include some guidance from the Disability Discrimination Act 1995 as to what disability means in a practical sense. However, the notes say that effectively there are a lot of caveats and that this list should not be seen as the gold standard:

• “Mobility – for example, unable to travel short journeys as a passenger in a car, unable to walk other than at a slow pace or with jerky movements, difficulty in negotiating stairs, unable to use one or more forms of public transport, unable to go out of doors unaccompanied.

• Manual dexterity – for example, loss of functioning in one or both hands, inability to use a knife and fork at the same time, or difficulty in pressing buttons on a keyboard.

• Physical co-ordination – for example, the inability to feed or dress oneself; or to pour liquid from one vessel to another except with unusual slowness or concentration.

• Problems with bowel/bladder control – for example, frequent or regular loss of control of the bladder or bowel. Occasional bedwetting is not considered a disability.

• Ability to lift, carry or otherwise move everyday objects (for example, books, kettles, light furniture) – for example, inability to pick up a weight with one hand but not the other, or to carry a tray steadily.

• Speech – for example, unable to communicate (clearly) orally with others, taking significantly longer to say things. A minor stutter, difficulty in speaking in front of an audience, or inability to speak a foreign language would not be considered impairments.

• Hearing – for example, not being able to hear without the use of a hearing aid, the inability to understand speech under normal conditions or over the telephone.

• Eyesight – for example, while wearing spectacles or contact lenses – being unable to pass the standard driving eyesight test, total inability to distinguish colours (excluding ordinary red/green colour blindness), or inability to read newsprint.

• Memory or ability to concentrate, learn or understand – for example, intermittent loss of consciousness or confused behaviour, inability to remember names of family or friends, unable to write a cheque without assistance, or an inability to follow a recipe.
• Perception of risk of physical danger – for example, reckless behaviour putting oneself or others at risk, mobility to cross the road safely. This excludes (significant) fear of heights or underestimating risk of dangerous hobbies.”

The notes comment on the case of Billett and suggest that the Claimant in that case would probably not have met the new definition for disability:

“Mr Billett was disabled under the looser Equality Act 2010 definition but arguably he was not disabled under the tighter Ogden definition of disability because his impairment was not sufficiently limiting relative to the criteria set out below.” [paragraph 69]

(B) How does the approach differ if the Claimant is disabled?

If you have a Claimant who is disabled, the starting point really has to be to use the Ogden tables to see what the effect of the disability is on their future income. There are other methods which can be used to account for loss of earnings capacity, and we will look at these in due course, but these other methods usually produce lower amounts and if you are acting for a Claimant you want to try and get as much as possible for them.

The Ogden tables are essentially a tool which helps you to calculate future loss of earnings. There are a number of different aspects to the Ogden tables, and we are only going to look at the adjustments which are for disability.

Section B of the Introductory Notes to the Ogden Tables deals with what are called ‘contingencies other than mortality’. This is effectively an attempt to work out what effect your age, gender, education level, and disability status has on the proportion of your future earnings you are assumed to be capable of recovering.

We have Tables A, B, C and D. Table A is for non-disabled men, Table B is for disabled men, Table C is for non-disabled women, and Table D is for disabled women.

I have attached Table C to show you what it looks like. This would be the correct table when attempting to reconstruct what Anna’s earnings would have been absent the accident. The Levels 1, 2 and 3 are for her education level, and she falls into Level 3. We can see that her reduction factor would have been 0.88:

If Anna is disabled, we can use Table D to work out the new reduction factor. We can see that the reduction factor is now only 0.59. That is effectively a 29% drop in income.

(C) Can the figures in Tables A to D be adjusted?

You may encounter an argument that the figures in Tables A to D should be adjusted. You may have a Defendant who says that although the use of Tables A to D is appropriate, the reduction factor is too low, and should be increased (thereby reducing the size of the claim).

This used to happen all the time before the eighth edition of the Ogden Tables were produced. This is probably because the previous editions of the Ogden Tables used the definition for disability in the Equality Act 2010, which was ludicrously low, and so all sorts of people were being caught by the definition of disability and getting enormous awards of compensation that they didn’t really deserve.

There is some guidance in Section B(g) of the Introductory Notes to the Ogden tables as to when adjusting the figures is appropriate. The guidance is not especially helpful. The general impression from the notes is that you can adjust the figures, but you probably shouldn’t:

“Adjustments to the reduction factors since they were introduced in the 6th edition (2007) have proved to be difficult and controversial.” [paragraph 83]

“It is in the nature of assessing damages that a single estimate based on a group average will be inaccurate for an individual claimant and a certain degree of inaccuracy must be accepted.” [paragraph 83]

“[T]he Table A to D reduction factors should generally be used unless there is a good reason to disapply or to adjust them.” [paragraph 60]

“Where a departure is considered to be appropriate, it could be in either direction and it would normally be expected to be modest.” [paragraph 91]

“In some cases, it may be difficult to determine the scale of the departure and it may be helpful to consult expert opinion.” [paragraph 92]

(D) What are the alternatives to the use of Tables A to D?

Where you have a disabled Claimant, the main alternative to the use of Tables A to D is to seek some sort of lump sum award.

You may have come across a Smith v Manchester award. These were very common before the Ogden tables came in. However, you do still see them from time to time.

There is often some confusion about what a Smith v Manchester award is actually intended to compensate. The purpose of this is sometimes said to be to compensate a Claimant who, having lost their job, spends longer searching for a new one. However, there is sometimes reference to the injured Claimant having lower earnings in the future as a whole. See for example Moeliker v A. Reyrolle & Co. Ltd [1977] 1 WLR 132:

“Smith’s case is merely an example of an award of damages under a head which has long been recognised — a plaintiff’s loss of earning capacity arises where “as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by his injury”.

This seems to me to trespass a little on the idea of a Blamire award. A Blamire award is also a lump-sum award which is intended to compensate a Claimant for a specific reduction in earnings levels. It is where the reduction (for whatever reason) cannot be precisely calculated that a Blamire award can be made.

There needs to be a ‘real and substantial risk’ that the Claimant will lose their job in the future for a Smith award for be made.

It might be safest to think in general terms about a lump sum award (whether you call it a Smith award or a Blamire award) which is intended to reflect a general loss of earnings capacity in the future which cannot be precisely calculated.

You can see that this is covering much the same ground as the use of the reduction factors in the Ogden tables. The use of the reduction factors to reduce the post-accident income, or the making of a lump sum award, is intended to compensate the Claimant for a general loss of earnings capacity in the future.

For a disabled Claimant, it is sensible to see this as a choice between alternatives:

1. The use of the reduction factors in the Ogden tables;
2. The making of a lump-sum award.

(E) When might you want to consider a lump-sum approach?

The Introductory Notes to the Ogden Tables make clear that the use of the Ogden tables for a disabled Claimant is the default approach. However:

“[…] there may be some cases when the Smith v Manchester or Blamire approach remains applicable or otherwise where a precise mathematical approach is inapplicable.” [paragraph 59]

The notes give an example:

“For example, there may be no real alternative to a Smith v Manchester or Blamire award where there is insufficient evidence or too many imponderables for the judge to be able to make the findings necessary to support the conventional multiplicand/multiplier approach.” [paragraph 59]

The key thing in my view which tends to support a lump-sum approach for a disabled Claimant is uncertainty:

• Has there been another accident after the index accident?
• Was the Claimant already injured, or otherwise limited in what they could do, at the time of the index accident?
• Is it difficult for other reasons to trace the effect of the accident on the employment?
• Has the injury been characterised as an acceleration period, or an exacerbation?
• Is the evidence about the Claimant’s likely earnings poor?
• Has the Claimant had a significantly disrupted career?

You might also consider a lump-sum approach where the Claimant (as in Billett) only just sneaks over the threshold of disability. However, given the new definition in the Introductory Notes to the Ogden Tables, a person who is deemed to be disabled probably does have the sort of meaningful disability that justifies the Ogden Tables being used.

You might also consider a lump-sum approach where a calculation using the Ogden Tables produces a figure which appears to be a significantly disproportionate. However, again, if the Claimant meets the new definition for disability in the Introductory Notes to the Ogden Tables, it seems unlikely that the figure generated will be truly disproportionate.

It is also worth remembering the warning in the Introductory Notes:

“But, merely because there are uncertainties about the future does not of itself justify a departure from the well-established multiplicand/multiplier method and judges should therefore be slow to resort to the broad-brush Blamire approach, unless they really have no alternative.” [paragraph 59]

What if the Claimant does not meet the threshold for disability?

If the Claimant does not meet the threshold for disability, that in my view is where one can consider a lump-sum approach with a clear conscience.

An alternative might possibly be to try and use a mid-point between the disabled and non-disabled reduction factors. This is discouraged where Claimants are disabled (see paragraph 91) but perhaps it might be an option where the Claimant is not disabled.

What have the courts done in the recent past?

It is often helpful to look at what the courts have actually done.

I have tried to find some cases from after 2020, which is when the eighth edition of the Ogden Tables came out, but there actually aren’t many to look at.

There are only two cases which are mildly useful. Both cases involve Defendants making frankly spurious challenges to the Ogden Tables approach and getting shot down.

Matthew Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417

The Claimant in this case was riding his motorcycle when he crashed and suffered an injury to his leg. The Claimant developed compartment syndrome, which was not properly treated, and the Claimant lost his leg.

The Claimant wanted a calculation using the Ogden Tables. The Defendant was saying that there were too many uncertainties and wanted a lump sum.

It is true that there were a lot of uncertainties – to do with the employment that the Claimant would have had absent the accident, and the work that he would now do.

However, the Judge shut the door on this. The Judge essentially said – I can carry out a calculation, and therefore I am going to.

“My conclusion is that while there are uncertainties as to the Claimant’s employment history in the absence of an amputation and what are now his future employment prospects, this is a case where it is possible to reach conclusions that enable a court to adopt the multiplicand/multiplier method. The notes to the Ogden Tables contain guidance as to the methodology to be adopted when calculating the future loss. This is contained in Tables A to D of section B. The Notes state that it is guidance, rather than being prescriptive. The guidance should generally be followed but a claimant’s particular circumstances may justify departing from the guidance.” [paragraph 64]

Natasha Palmer v Seferif Mantas, Liverpool Victoria Insurance Company Limited [2022] EWHC 90

Here is another case where there was a disagreement about whether there should be a lump-sum approach, or a calculation using the Ogden Tables.

This was a case involving a nasty car accident where the Claimant was left with a brain injury. The Claimant had attempted to return to work after the accident, but had struggled, and had left work and spent a protracted period of time on benefits.

This is another case where the challenge to the calculation using the Ogden Tables seemed somewhat opportunistic. The Judge rejected it out of hand:

“In respect of the present case, I find that the Claimant is disabled and, given the extent of her present disabilities, I do not find this is analogous to the position of the Claimants in Billet and Murphy, in which they were able to continue with their chosen careers with virtually no hindrance from their disabilities and where the decision to award damages for Future Loss of Earnings on a multiplier/multiplicand basis would have resulted in a disproportionately large award. […] In the present case, as was held in Inglis at Paragraph 215, that not only is the Claimant disabled within the definition of the Ogden Tables, but her disability has a particular impact on her ability to carry out her day-to-day work. I therefore determine that this is not a case which it would be appropriate to make a Smith v Manchester award as I do not consider the Claimant would recover a disproportionate award for future loss of earnings. I therefore do so on the conventional multiplier/multiplicand basis with appropriate adjustment for the RF.” [paragraph 116]

What about Anna?

Let’s try and answer the questions for Anna.

What has actually happened to Anna?

She is struggling a bit by the end of the working day. She is hobbling around and in pain. She probably cannot wear high heels. She might not be able to do heavy manual handling.

Has Anna suffered reduction in her earnings levels?

Possibly, given her aspirations to be a paramedic, and we need to find out what she would have earned, what her career progression would have been like. If there has been a reduction in earnings levels due to the accident we will need to properly evidence it.

Putting this to one side:

Does Anna meet the threshold for disability?

This is a difficult one.

She certainly meets the definition in Section 6 of the Equality Act 2010.

She might meet the definition in the Introductory Notes to the Ogden Tables:

1. Does she have an illness or a disability which is expected to last for over a year or is a progressive illness? Yes
2. Does the impact of the disability have a substantial adverse effect on her ability to carry out normal day-to-day activities? Possibly (see below)
3. Do the effects of impairment limit either the kind or the amount of paid work she can do? Yes

With regard to the ‘substantial adverse effect’, the examples given in the guidance feel different to what we are looking at:

“Mobility – for example, unable to travel short journeys as a passenger in a car, unable to walk other than at a slow pace or with jerky movements, difficulty in negotiating stairs, unable to use one or more forms of public transport, unable to go out of doors unaccompanied”

If she were to meet the Ogden definition for disability, what would the Ogden Tables calculation come out as?

Income: £20,000

Table 12: Multipliers for loss of earnings to pension age 68 (females)

Claimant is 30: multiplier at discount rate of -0.25% is 39.01

Non-disabled reduction factor (employed, Level 3 education; Table C): 0.88

Disabled reduction factor (employed, Level 3 education; Table D): 0.59

Non-disabled earnings: £686,576

Disabled earnings: £460,318

Difference: £226,258

Can you calculate it? Yes.

Is that too much? It feels too much.

So what should we claim? It is very hard to say.

It is not clear whether she meets the threshold for disability. It is certainly arguable that she meets the threshold, and the court hearing the claim may agree. The Claimant is probably going to have an easier time showing that she is disabled if she is physically prevented from taking up her intended role as a paramedic. The question of whether the Claimant meets the threshold for disability would probably end up being fought over in court.

It would probably be sensible for the Claimant to plead a claim using the reduction factors in the Ogden Tables. This will generate quite a large claim (as we have seen above).

That said, it might be a claim to settle for less.

If someone came along and made a Part 36 offer reflecting two years of net earnings, as in Billett, that is the sort of offer which might put Anna (in my view) at quite a lot of risk.

How can you protect yourself when dealing with claims like this?

It is very easy to say how these cases should work. However, when you get to that final stage, of trying to work out what to do, you suddenly have this very wide discretion. In Anna’s case, you could legitimately take the view that she is not disabled and plead a claim for some sort of lump sum – perhaps has little as six months of net earnings. Or, you could legitimately take the view that she is disabled, and plead a claim for over £200,000.

I think the key thing for me is to show your working. Can you get a file note, or even better an advice from counsel, which goes through the above questions and carefully considers them? If you choose a particular option, can you explain why you chose it? Will there be evidence of you carefully going through things with the client and covering everything?

It might seem scary having a fairly wide discretion – and frankly it scares me sometimes – but that wide discretion can actually be protective. It is going to be very difficult for someone to come along and say that you have done something that no solicitor, or barrister, would do.

Conclusions

I hope this article has been helpful.