Disability Definitions and Ogden

Disability Definitions and Ogden Self-employed Solicitor and Legal Trainer Nicky Carter mentions that” there is no measure of severity of disability in the Equality Act ” and comments on calculating losses for Claimants  falling “within the Equality Act definition of “Disabled” .”

Changes to the Discount rate by the then Lord Chancellor caused a huge amount of speculation and comment from all quarters of the PI world. However the rate change and recent case law has sparked a debate about the methodology of calculating losses that most lay clients would not consider.

Where a Claimant finds themselves meeting the criteria of “disabled” (per Equality Act) how might that change the approach to a losses schedule?

What is the relevance of a Claimants Disability status post accident when it comes to calculating losses?

It is important to note that there is no measure of severity of disability in the Equality Act .

Severity of impairment is measured in a different survey, the Health and Disability Survey, a one-off survey conducted in 1996–7 and before the DDA definition of disability. This system of measurement was developed by the Office for Population Census and Surveys (“OPCS”) for use in their 1985 survey of disability.

The first three least severe categories (1–3) account for 42.9 per cent of those classified as disabled. 

The middle four categories (4–7) account for a further 43.9 per cent of the disabled.

The three most severe categories (8–10) account for 13.2 per cent of the disabled population.

We know that the distribution of disability is concentrated towards the mild end of the spectrum. So that within the disabled population, most people suffer from a relatively mild degree of impairment. The disability norm is of mild or mild to moderate severity. It is not severe.

If that is the case, what are the implications for a Claimant who falls within the Equality Act definition of “Disabled” when preparing a calculation of losses?

This can affect those who ;

Claimant’s in this situation may not consider that any loss has been or is likely to be suffered. The experienced PI practitioner knows otherwise and so begins the complex and painstaking process of calculating the future losses. Steering a way through the calculation options requires a great deal of specialist skill and knowledge.

The options appear to be

Latest arguments suggest that there may be a “third way” of approaching an award for Loss of Earning capacity.

The Ogden Tables and Explanatory Notes are admissible. Whatever definition of disability is used, it cannot be just that those who fall on one side of the definition should be eligible for a much higher award than those who narrowly miss out—the Tables and Explanatory Notes properly viewed are evidence of the effect of illness and injury on lifetime earnings and that evidence should be used to inform judges making assessments—whether mathematical or “rough and ready” of the claimant’s likely loss.

A judge who decides that the Tables do not produce a fair result and who is contemplating a lump-sum award should be urged to have regard to the Tables as an indication of the suitability of that lump sum award.

The Judge would not be making an “arbitrary deduction” or ignoring the Tables, but rather checking his own assessment of the likely effect of the injury on a claimant’s earning capacity by reference to an admissible statistical database.

These decisions are key to achieving the very best award for a Claimant who may find him or herself restricted in the type or amount of paid work they can do in the future.



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