KNAUER: SUPREME COURT ALLOWS APPEAL: MULTIPLIER RUNS FROM DATE OF TRIAL
The Supreme Court gave judgment in Knauer -v- Ministry  UKSC 9 of Justice this morning. The court allowed the appeal. The multiplier in a fatal accident case now runs from the date of trial/assessment and not the date of death. This means that fatal accident awards will now be higher. There is a greater incentive on defendants to settle cases earlier.
The court held that the use of the Ogden Tables means that the approach to multipliers is now more scientific. The concerns that governed the previous House of Lords decisions on this point were to a large extent alleviated.
Now the multiplier runs from the date of assessment and not the date of death. In the Knauer case itself this meant that the widow received an additional £50,000.
DISCUSSION OF PREVIOUS DECISIONS OF THE HOUSE OF LORDS
12. If this is now so obvious, why did the House of Lords reach a different conclusion in Cookson v Knowles and Graham v Dodds? The short answer is that both cases were decided in a different era, when the calculation of damages for personal injury and death was nothing like as sophisticated as it now is. In particular, the courts discouraged the use of actuarial tables or actuarial evidence as the basis of assessment, on the ground that they would give “a false appearance of accuracy and precision in a sphere where conjectural estimates have to play a large part”. Hence “[t]he experience of practitioners and judges in applying the normal method is the best primary basis for making assessments”: Lord Pearson in Taylor v O’Connor  AC 115, 140. Rather like the assessment of the “tariff” in criminal cases, the answer lay in the intuition of the barristers and judges who appeared in these cases. This was wholly unscientific. Counsel in the current case were agreed that, when they started at the Bar, the conventional approach to deciding upon the multiplier was to halve the victim’s life expectancy and add one year, with a maximum of 16 to 18 years. This is an approach which depends upon “being in the know” rather than reality.
NO INCENTIVE FOR PARTIES TO DELAY
18. If his first concern can thus be dealt with, his second concern, any incentive for claimants to delay the trial, is a little harder to understand. If it were valid, it would apply equally to non-fatal personal injury claims. Further, if the present approach leads to under-compensation, it could be said that it creates an incentive for defendants to delay the trial. The reality is that this is another respect in which the litigation landscape has been transformed since 1984. Under the Civil Procedure Rules 1998, the court is now in a position to set timetables and insist that parties keep to them. In any event, the proper use of the Ogden Tables makes the concern irrelevant. The dependants will get that which reflects their probable loss on an actuarial calculation based on the facts known at the date of trial. There is no injustice either way.
DEPARTING FROM PREVIOUS AUTHORITY
26. Finally, it was also suggested that, rather than this Court changing the law, we should leave it to the legislature to do so (as has happened in Scotland, where the Scottish Parliament has enacted section 7(1)(d) of the Damages (Scotland) Act 2011, following the recommendation of the Scottish Law Commission in their Report on Damages for Wrongful Death (2008) (Scot Law Com No 213), to the effect that the multiplier should be fixed as at the date of trial). We would reject that suggestion. The current law on the issue we are being asked to resolve was made by judges, and, if it is shown to suffer from the defects identified above, then, unless there is a good reason to the contrary, it should be corrected or brought up to date by judges. That is, after all, the primary principle which lies behind the 1966 Practice Statement. Of course, there may be cases where any proposed change in the law is so complex, or carries with it potential injustices or wider implications that the matter is better left to the legislature, but this is not such a case. Furthermore, in England and Wales, questions relating to the assessment of damages are and always have been very much for the courts, rather than for the legislature (although there are exceptions, to which we have already alluded). In relation to the point at issue on this appeal, that was recognised by the Law Commission in paras 4.19-4.22 of their 1999 report, where it is said that “legislation is probably neither necessary nor appropriate” to change the law on this point, on the ground that there was “room for judicial manoeuvre without legislation”.