Disability and the 2010 Equality Act: Relevance in personal injury claims

Medico-legal experts instructed to write reports for use in personal injury claims may be perplexed by the number of those instructions which ask for an opinion about whether the claimant is disabled. Orthopaedic experts may be concerned that labelling the claimant as disabled could be regarded as a somewhat pessimistic approach. However, lawyers seeking an opinion on this point do so for valid technical reasons which this article will explore. Therefore, the purpose of this article is to explain why lawyers so often ask medical experts whether they consider that the claimant can properly be described as disabled according to the criteria set down in the 2010 Equality Act. It is hoped that this will enable medical experts to appreciate the significance of an opinion on this point, particularly so far as estimating claims for future loss of earnings is concerned. After outlining what might be described as the traditional method of calculating future loss of earnings, the article will turn to the modern method increasingly being adopted by the courts in appropriate cases and will seek to explain why the concept of disability is so important to that methodology. It is hoped that this analysis will help to explain why so many medico-legal instructions now raise the question of disability and will help to put such instructions into proper context. Where an injured person has continuing symptoms, even if these are not particularly significant, this may be important in terms of their future employability and may have a bearing on their future earning potential. There are, of course, cases where the injuries have an immediate, and continuing, effect on earnings and employment prospects. A more insidious problem is that encountered by the injured person who gets back to work (perhaps doing the same job) but is likely to face …