Expert Evidence for Smith v Manchester/Blamire Claims
“It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity”
Lord Denning MR Fairley v John Thompson (Design and Contracting Division) Ltd  2 Lloyd’s Rep 40
Legal argument may well prevail as to whether Ogden 7, which takes into account other factors other than mortality which may reduce a claim for loss of earnings, should be applied or if the Smith v Manchester approach would be more appropriate. The case of Billett v MoD  EWCA Civ 773 provides the latest and most poignant reminder of this.
The right medical expert can provide assistance to the Court under CPR 35.3 to provide guidance on whether a Claimant is disabled under the Equality Act 2010 and the Ogden Tables A-D and the effect on what that Claimant can, and pertinently cannot do in respect of the following categories: –
- Manual dexterity;
- Physical co-ordination;
- Problems with bowel/bladder control;
- Ability to carry or otherwise move everyday objects;
- Memory or ability to concentrate;
- Perception of risk of physical danger.
Courts have faced significant challenges in determining what a “substantial adverse effect” on a person’s “ability to carry out normal day to day activities” is and an expert who is a veteran of personal injury reporting and experienced in advising Employment Tribunals would be best placed to provide this advice. Solicitors face the very real difficulty of finding an experienced and versatile expert who can take in medical information and expert evidence on all matters relevant to a finding of disability and future earning capacity.
Expert reporting is often confined to one medical speciality or another but rarely is it brought together in one cohesive document which delivers the full potential of medical expertise under CPR 35.3. Complex cases will only become more accessible if one relies on expert evidence which is ultimately unequivocal and, should this ever prove impossible, narrows the issues to the thinnest of lines. As pressure to deliver CPR 1.1(2)(b) becomes ever more important concise and helpful medical evidence becomes ever more important too.
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Dr Charlesworth-Jones: Medical Negligence Expert
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Having worked with Dr Charlesworth-Jones on several complicated cases in the past I am happily able to recommend him; as an expert he has the ability to analyse the materials presented to him in a manner which is both easy to digest and appropriate to diverse legal forums. In my view, a useful medico-legal report is required to be succinct, impartial and instructive and I have no doubt that in all of Dr Charlesworth-Jones’ reports these objectives have been achieved. I have been highly impressed by his lack of equivocation and his ability to work to close deadlines. I have little doubt that in the absence of these reports my own cases would have become highly disputatious.”
Barrister, No5 Chambers