Why Did The Courts Got It Wrong Over Many Years?
The Ogden Tables were used to compensate future awards of compensation for fatal accident dependents and victims of life changing injuries. The Ogden Tables use what are called ‘multipliers’ that is a calculation to apply a fixed lump sum award the claimant would received today and ‘discount’ the compensation lump sum due to the fact that the claimant would get the money now rather than piece meal over what can be many years into the future.
In fatal accident claims, however, the Courts in the 1970’s (see case of Cookson v Knowles  in particular where Lord Fraser stated:
‘In a personal injury case, if the injured person has survived until the date of trial, that is a known fact…But in a fatal accident case, the multiplier must be selected once and for all as at the date of death because everything that might have happened to the deceased after that date remains uncertain…’
Thus to calculate the future compensation for dependants from the date of death rather than the date of trial (which happens as a matter of routine in life changing injury claims) has the effect of under-compensating the dependants of the deceased. Why? This is because the Odgen Tables used to calculate the future awards were designed to calculate the ‘multiplier’ from the date of trial not the date of death.
So if there is a long delay between the date of death and date of trial or settlement this will lead to injustice and under-compensation to the dependents. This has been a known fact for many years but the Courts have done nothing about it until the decision in Knauer v MOJ 2016. The mis-use by the Courts of the Ogden Tables was considered in White v ESAB Group (UK) Ltd  and Aths v Ms  EWCA Civ 972 and criticised in Corbett v Braking HA .
Just one good fatal accident decision in many years has taken place where the Supreme Court in the case of Knauer v MOJ 2016 decided to change the law so that the multiplier must run from the date of trial, not the date of death. This can add thousands of pounds for bereaved families who have been under-compensated and let down the the Government and the Judiciary.
[Author Ronnie Hutcheon – Principal Solicitor in the Firm of R James Hutcheon Solicitors]
But the Courts thought they were bound by the past judgement and thus the law could not be changed without the Government changing the law.
Even the Law Commission Report entitled Claims for Wrongful Death suggested to the Government that the law should be changed (among other issues) so that compensation for fatal accident claims for future awards should be used the same way as lift changing injury claim, that is The Ogden Tables for future awards for compensation should be from the date of trial not the date of death.
Common sense has played a part here with practical know how of the change in times but lest not forget the injustice to victims in the past whose fatal accident claims have been vastly under compensated by the slow changing pace of the Judiciary and the constant strength and lobbing of Government by insurance companies who continue to influence the Government. The losers are the victims. Help us change the law and sign our Government E-Petition on bereavement awards.
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