We continue to live in very difficult times. The legal system is learning to adjust. This article looks at some recent developments to personal injury law.
COVID 19 and compensation claims
The pandemic and the resulting lockdown continue to affect the lives of everyone. The business has not been spared. The legal system is learning how to adapt to “the new normal”.
The lockdown caused the closure of many Courts. Slowly they are reopening, however, things will not return to normal for a long time.
Courts are operating with skeleton staff levels. Papers sent to the Court are not being processed as quickly as they were before the lockdown, and the issue of proceedings has been delayed.
There is still a massive backlog in terms of the listing of cases for Trials and the hearing of applications. That is true of civil and criminal proceedings.
Many people were furloughed. Many were – still are – confined to their homes. For a time factories and businesses were shut or working on a reduced basis. There was less traffic on the roads, and as a result, there were fewer accidents at work, fewer road traffic accidents and fewer public place accidents.
Government figures have confirmed there was a 38% fall in the number of injury claims registered with the Compensation Recovery Unit (CRU) during the first three months of lockdown.
COVID 19 lead to the closure of many Courts in the short term. They are now steadily reopening.
When cases are eventually listed for hearing, how do they take place?
Video conferencing has come on leaps and bounds in the last 2-3 years. The lockdown gave a massive impetus to its use, not just for socialising but for business. That has been true of the legal system.
The majority do not take place in a Courtroom, but remotely. The advantages are obvious. The Judge, the lawyers, the parties and witnesses do not come into direct contact with one another. So the risk of spreading the virus has been minimised.
However, there have been considerable problems and the legal system is still wrestling with them. Many parts of the country have less than ideal Wi-Fi connectivity. Some have almost none. Some witnesses and experts may struggle to participate and give evidence.
There are security concerns – fair or unfair – particularly about some video conferencing platforms; especially those with links to China.
There are more immediate concerns about the integrity of video conferencing systems. Can they be hacked? Are they hacked? Can people eavesdrop on hearings when they should not be allowed to?
An investigation is still underway concerning a Trial held by video conferencing where, partway through, it became apparent to the Judge that people who had no business to do so were listening to evidence which being given live. Happily, this sort of problem is very rare. But the system is not flawless.
Video conferencing has become enormously helpful in the making of arrangements for medical experts to examine Claimants. In personal injury and medical negligence cases, the parties need to obtain medical evidence; the Claimant needs to be examined by suitably qualified doctors.
Many private hospitals are not making facilities available for medical examinations, concerned about the of spreading COVID 19. Video conferencing has been enormously helpful.
The risk of cross-infection by patient to expert, by expert to patient and so on is removed.
The patient does not have to travel long distances for examination. Indeed, the patient and expert don’t even have to be in the same country.
The cost is greatly reduced and the risk of infection posed by journeys on public transport avoided.
However, sometimes, this is not appropriate; for example, where the expert needs physically to examine the patient. If that is not necessary, video conferencing is now a well-regarded solution to the problem of arranging examinations. It is a trend which is bound to continue.
The eighth edition of the Ogden Tables was published on Friday 17 July 2020. If you make or become involved in a compensation claim; a personal injury or clinical negligence claim the chances are that you are going to hear something called the Ogden tables.
What are the Ogden tables?
Ogden tables are a set of statistical tables and other information used in court cases in the UK. They make it possible for Courts and the lawyers who appear in them, to calculate future losses in personal injury and medical negligence cases.
Suppose that there is to be a claim for future financial losses. Typically, a claim for loss of earnings. Generally, it’s not too difficult mathematically to work out what the annual loss will be. But how do you work out the total of the future loss? The loss will continue year upon year. But for how many years? How many times is the loss multiplied to give you the total? The answer lies in the Ogden tables.
Suppose that a man is aged 38 when he is injured and cannot return to work. He might be aged 40 by the time of a Trial. In the ordinary way of things, he could have expected to continue to work until – at least – retirement age. Between 2026 and 2028 this is scheduled to rise to 67.
So do you take the annual loss (less tax and National Insurance Contributions) and multiply it by 27 (67 less 40) to arrive at the total? The short answer is “No”. The Ogden figure gives a lower figure for a variety of reasons.
First and foremost, the Claimant will not generally receive a series of annual payments year after year, but rather a one-off total. So he or she will be getting the money for future years, early. He or she will be expected to invest it and generate a dividend from the investment. Of course, as we are always warned on TV and radio, the value of investments can down as well as up.
There are risks to think about. The risk that even if the accident giving rise to the claim had not happened, the Claimant would have died early, with no further earned income. Not a pleasant thing to dwell on but a reality that cannot be ignored. Happily, the Ogden tables give the correct answer taking all of these considerations into account.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.