11 November 2022: Carter - A

Mr Carter might have been thought of as an unusual expert witness for the Inquiry to call. A labour market analyst and founder member of the Expert Witnesses Institute, it was thought that as well as calculating loss of earnings for infected and affected people, he could have something to say about the standards expected from those granted such a specialist status as an expert witness, particularly since so many important decisions may turn on something an expert says in a court, Inquest, or Inquiry. Surely there has to be unquestionable independence and objectivity from such people. If only this had applied to the clinicians who advised – on a lucrative consultancy basis – the pharmaceutical companies producing products, then advised the Government purchasers on the preferred products and the safety protocols for treatment, then applied their special knowledge to the treatment of patients who trusted the prescriptions given to them and which would never be experimental, then published research papers which enhanced their academic standing, then taught students how to be a good doctor like they were, then gave evidence to advise legal cases where a peer who did things the same way they did was being challenged on their practice, then expected that same peer to do the same thing for them if the roles were reversed. Yes, if only some kind of standards had applied to these experts’ unvirtuous circle of conflicting interests.

Mr Carter has appeared as an expert witness to advise on loss of earnings cases in relation to personal injury claims, among other matters. After hearing the evidence of Sir Robert Francis, he wrote to the Chair with his views on these matters.

The first assertion he made was to ensure that a career is not frozen at the point when a person can no longer work, since a typical career happens in the form of an arc, not a point in time. In relation to the infected, there will be scenarios to project to whatever time of their working life has been lost due to the injury. This includes using the ASHE (Annual Survey of Hours and Earnings) resource. The witness described how he would go about preparing a report for a court, say. This is done on an individual basis and takes into account, for example, the school a person attended if they were a young person so as to give an indication of what someone might be expected to achieve in the future. This might also involve noting what siblings went on to earn. This writer supports the concept of making the assessment of compensation related to the Contaminated Blood Scandal being as light-touch as possible. Perhaps this witness ought to be part of the Arms-Length Body panels to create tariffs.

The ASHE documentation describes how the figures it uses are pulled together, including what it does not cover, such as self-employed people. The assertion by ASHE is that the median wage is a better figure to use than the mean wage. However, the witness prefers to use the mean average. There are tables for males and females as well as tables for “all”. He uses the “all” tables. The calculations have to consider factors such as seasonal aspects to certain jobs, and issues such as overtime and bonuses. The witness uses ASHE daily, but there are flaws he said. The non-inclusion of self-employed people, and not including the employers contribution to pensions, are among other elements that should be considered. When Mr Carter does his calculations he has to go to other sources to fill these gaps. Recently, an added complication was the period when many people were on furlough due to Covid-19. If someone was frozen at a furlough figure, they would be down by 20% since furlough only paid 80% of a salary. He said there has to be a ceiling somewhere since not everyone gets to the top of the career ladder. A process of “centiles” allows for recognising where someone might be on a career pathway based on their age. The witness gave examples to illustrate how the calculation processes work.

The question was asked about simply applying the 55% centile to infected blood people, but the witness felt this would undervalue some individuals. All this work to get to a figure relies on a very detailed individual assessment. This writer was concerned that it might swing the pendulum away from generalised tariffs and regressively return to assessments, including there being a need for arguments for and against in an adversarial setting, and therefore massive amounts of angry retraumatising.

ASHE is not the sole resource. Others include the Ogden tables. Within Ogden, there is a different starting point for people with a pre-existing disability. Research shows that a person with a disability has to apply for seven more jobs than an able-bodied person before they secure work. This downscales the calculations for a person with a disability So, there is an automatic downgrading of disabled people when court-based personal injuries claims are worked out due to the calculations being based on as close a mapping to the real world as possible. This doesn’t seem morally right, but is factually and societally right. As was said in The Lion King, “Life’s not fair”.

(There followed a short break to allow people to follow the two-minute silence for Remembrance Day. It was a poignant reminder of the many people who had fought and lost the battle against contaminated blood. Hopefully, they will be remembered too.)