UK: Knauer (Widower And Administrator Of The Estate Of Sally Ann Knauer) V Ministry Of Justice

Last Updated: 10 March 2016
Article by Claire Petts

Multipliers for loss of dependency in fatal claims to be calculated from the date of trial, not the date of death

On 24 February 2016, a unanimous seven Justice Supreme Court, departed from long established principles and ruled that damages for future loss of dependency in fatal injury claims should be calculated from the date of trial, rather than the date of death.  This change has been anticipated since 1999 when the Law Commission published its report on Claims for Wrongful Death, and it brings the law in England and Wales in line with the approach adopted in Scotland since the enactment of the Damages (Scotland) Act 2011.  This method of calculating damages was recommended in the 7th Edition of the Ogden Tables (paragraph 64 onwards of the explanatory notes), and should now be applied.

In its ruling, the Supreme Court commented that the precedent set down in the cases of Cookson1 and Dodds2 came from an era when the calculation of damages for personal injury and death was less sophisticated, and applying these principles in the current climate was outdated and unscientific.  While the new approach is arguably a more reasonable method of calculating damages, insurers should note that it will result in higher dependency awards, and an increase in case reserves.  However, the change is limited to fatal cases only, and therefore, will affect a small number of claims, most notably those involving young dependent children.  In all existing fatal claims, Part 36 Offers should now be reviewed.

Facts

The present case involved a claim brought by the widower of Mrs Knauer, a prison officer, who died of mesothelioma in 2009, aged 46, after exposure to asbestos at Guy's Marsh Prison in Dorset.  Liability was admitted in December 2013, and the case proceeded before Bean J in July 2014, on an assessment of damages only.  The value of the income and services lost as a result of the death (the "multiplicand"), was agreed, and at issue was whether the number of years by which that figure was to be multiplied (the "multiplier") was to be calculated from the date of death, or from the date of trial.  The difference between the two approaches in this case was around £50,000 (or 10% of the total award). 

Interestingly, the trial judge commented that while he was bound to follow the Cookson principles, he would have preferred the approach recommended by the Law Commission, of calculating the multiplier from the date of trial.  In what is clearly indicative of the calls for reform in this area, he invoked section 12 of the Administration of Justice Act 1969, granting a certificate to allow the case to bypass the Court of Appeal, and come directly before the Supreme Court. 

Arguments for Reform

The principle criticism of the conventional approach, was that Claimants were being awarded reduced damages as a consequence of a discount being applied to past losses.  In fatal cases, the practice was to take the multiplier as at the date of death, and deduct from it the time which has elapsed between the death and the trial.  The Supreme Court in Knauer commented that this was to "mix up a calculation based on properly considered actuarial principles, with an arbitrary arithmetical deduction", and noted that in previous cases trial judges were seeking to circumvent potential injustice by invoking "artificial or distorted" methods to avoid under-compensating Claimants.  This practice was leading to certainty and consistency of litigation being undermined.  In one case, for example, in a bid to ensure the Claimant was sufficiently compensated, a trial judge awarded interest on the whole sum of damages3. This decision was subsequently overturned on appeal. 

While it was clear that reform was needed, arguments against reform had been raised by the trial judge in Dodd.  He commented that adopting the date of death reduced the need to deal with uncertainties around what would have happened to the deceased between the death and the date of trial.  Further, if the date of trial was to be adopted, this would encourage Claimants to delay trials, as the longer the trial was delayed, the more a Claimant could recover.

In dealing with these concerns, the Supreme Court in Knauer commented that the Ogden Tables, published since the Dodd ruling, included fatal accident calculations based on the recommendations of the Law Commission, which dealt with the first concern.  With regard to the second, this was less of an issue in present day litigation, as the CPR requires parties to litigation to adhere to strict timetables. 

The Court concluded that the correct date as at which to assess the multiplier when fixing damages for future loss in claims under the Fatal Accidents Act 1976, should be the date of trial and not the date of death.

Conclusion

This ruling represents a significant departure from longstanding principles, however, it is one which has been long anticipated.  Principally the change is beneficial to Claimants, however, it also provides Defendants with more certainty when calculating reserves in fatal cases.  While this will lead to increased damages, it is limited to fatal claims, and therefore, change only affects a relatively small number of cases. 

Footnotes

1. Cookson v Knowles [1979] AC 556

2. Graham v Dodds [1983] 1 WLR 808

3. Fletcher v A Train and Sons Ltd [2008] EWCA Civ 413; [2008] 4 All ER 699

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.