A panel of seven Justices of the Supreme Court today unanimously changed the basis for calculating future loss of dependency in fatal accident claims and adopted the date of trial or assessment of damages as the starting point for the calculation. The previous common law approach, which dates from Cookson v Knowles in late 1970s, was to start from the date of death. The change brings English law (and, arguably, the law in Northern Ireland) into line with that in Scotland where the change to the date of trial or assessment was made in 2011 by a devolved statute.
On one hand, this new approach is forensically and actuarially far more rigorous than that in Cookson. On the other, it will result in a moderately more expensive award for dependency in these cases, largely because of the technical nature of the new calculation. In Knauer, adopting the new approach added over £50,000, or around 10% of the total damages awarded. Although this change in the law will lead to an increase in case reserves, it should be borne in mind that it is limited to fatal cases only, so relatively small numbers of claims will be affected. A more detailed analysis of the basis of the decision will follow shortly.
In this short judgment this morning the court concluded that: “there has been a material change in the relevant legal landscape since the earlier decisions, namely the decision in Wells v Well and the adoption of the Ogden Tables [which] gives rise to an overwhelming case for changing the law.”
About the Author
Alistair Kinley is BLM’s Director of Policy & Government Affairs.
Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.
He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).