Your Expert Must Really Know The Business
So much of my work as an expert involves a business, obviously, since that falls directly into my expertise as a chartered accountant. But so often I come across opposing experts who haven’t taken the trouble to really know the business. And it’s not difficult.
Let me give an example of a farmer, a tower of a man, who was a workaholic; he ran an arable farm of 180 acres, laid his own hedges and cleared his ditches, and made a modest profit.
But he also had a plant hire business; he renovated plant machinery and traded in anything from lawn mowers and tractors up to tower cranes; he converted disused farm property into habitable cottages for rent; he converted disused buildings into science parks for rent, and he was even, at the time of a Road Traffic Accident, renovating the family’s Grade II listed mansion.
After the accident, he still had all his business ideas and connections, but could no longer do the heavy physical work at the same rate as before, typically 100 hours each week.
My opponent looked at the farm and plant hire accounts, saw a modest profit, and said that this should be the multiplicand for future loss; but this approach ignored all the other work being done by the claimant, particularly the creation of future rental income by conversion of property into science parks. I recognised that he still had his business ideas and his mobile, and was able to do deals, but physical labour was beyond him.
So my approach was obvious: buy him a man, and the status quo ante would be restored. I reckoned that a lump sum from the Ogden tables to produce £18,000 per annum would put him right.
My opponent took the easy route; I took the trouble to understand the business. And the judge agreed with me, to the penny.
Need help with a similar issue? Speak to Chris.
Some months later, I was at a conference at a solicitor’s office in St Albans. He specialised in motorcycle accidents – a fertile field – and this poor chap suffered a complete deglove of his leg, which ended his career as a hypobaric deep sea diver.
The solicitor, his partner, the client and I waited for the QC to arrive. When he came in, he immediately said, “Hello, Chris. How are you?”
I had to say that I regret I didn’t recognise him. He replied that if he put on his judge’s wig, would I recognise him then? He said, “You were the expert in that farming case in Derby. You were impressive.”
What an introduction! The point was that I had taken the trouble to understand the farmer’s business, and meet the test in Bradburn –v- Great Western Railway [1880] 5 App Cas 25 at 39, where Lord Blackburn, using suitable Victorian language, said this:
“I do not think there is any difference of opinion as to its being a general rule that, where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”
If you want a potted guide to understanding a business, why not ask me to send you my chapter, which appeared for many years in Kemp & Kemp The Quantum of Damages?
It’s free, it’s only 11 pages long, and it provides a guide to loss of income by the self-employed and the family company director. And it is of relevance to many kinds of litigation, not just personal injury.
Happy reading!
