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Successful Clinical Negligence Claims Rely Less On Typical Earnings

Doctor holds head in hands while being consoled
12th January 2015

A claim for clinical negligence is more likely to be accepted in court if an expert’s assessment of a claimant’s future earnings is backed by “individual” evidence instead of submitting general data.

Recent research has highlighted the high number of claim cases, which were found to be using “typical example” data reports and “anecdotal evidence” from expert witnesses. However, judges have come under increasing pressure to reduce court costs since the introduction of key changes in April 2013 – known as the ‘Jackson reforms’ – which aimed to “restore balance” to the court system.

In response, judges have begun looking more closely at previously accepted method of calculating a claimant’s earnings and questioning the “objectivity” of expert witnesses.

 Calculations no longer adequate

The findings of independent studies suggest that the traditional level of research carried out has become increasingly open to challenge in the courts. Calculations traditionally relied upon by lawyers to arrive at a compensation figure are no longer considered to be adequate by the judges.

Researchers point to the use of “aggregated data from national statistics or other salary surveys”, which may no longer convince a judge to accept the evidence presented in a compensation case. Increasingly, legal advocates are required to carry out a more thorough and accurate research, including interviewing people in “similar careers” as part of their preparation in presenting their case if they wish an expert's evidence to be heard.

In practice, this requires an expert to compile a comprehensive report detailing an individual claimant’s current and future earnings based upon a projected future career path if the injury or accident had not happened.

Increasingly, it has been those legal firms who submit a calculation of a particular claimant’s potential lifetime earnings rather than present a “typical” example that have tended to be more successful in persuading a judge when presenting a case of clinical negligence. 

Unguarded Conveyor Belt: Car Plant Prosecuted For Failing To Prevent Injury

Poorly guarded machinery led to car plant worker suffering horrific personal injuries when he was dragged by the conveyor belt through the processing unit.

The 57 year old maintenance electrician, who was monitoring a defective piece of equipment to find the cause of the fault, was struck by an empty container moving through a gap in the machinery along a circular conveyer belt.

After being knocked to the ground, the electrician was dragged by the conveyer belt into a restricted processing area where he suffered severe crushing injuries to his lungs, fractured ribs, spine and right hand, and a blood clot to his heart. Under intensive care in hospital, the maintenance fitter was put into an induced coma for the first twelve days and was only able to return to work after more than four months of recovery.

Created a crush hazard

Following an investigation by the Health and Safety Executive (HSE), it was found that the car manufacturer had failed in its duty to ensure a safe system of work had been put into place. As a result of insufficient machinery guards to prevent injuries occurring, the company had allowed access to dangerous moving parts within the production process, and created a crush hazard from  the moving conveyer belt.

At Birmingham Crown Court in December 2014, the car manufacturer pleaded guilty to a breach of Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1999* and fined £40,000 plus £13,474 towards prosecution costs.

*Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1999 states that 1) Every employer shall ensure that measures are taken in accordance with paragraph (2) which are effective (a) to prevent access to any dangerous part of machinery or to any rotating stock-bar; or (b) to stop the movement of any dangerous part of machinery or rotating stock-bar before any part of a person enters a danger zone (HSE).