Practice and procedure update
Civil law practice and procedure update:
assessing future losses in fatal accident cases
David Thomas evaluates Knauer (widower and administrator of the estate of Sally Ann Knauer) v Ministry of Justice [2016] UKSC 9.
About the author
David Thomas FCILEx is a partner and head of clinical negligence at Simpson Millar LLP Solicitors, London.
The Supreme Court’s recent landmark ruling in respect of future loss in fatal accident cases has been welcomed by claimants’ lawyers. The unanimous decision made in Knauer marks a significant departure from the judgments given in the precedent cases of Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808. In a robust lead judgment from Lord Neuberger and Lady Hale, it was held that all future losses in fatal accident cases must now be calculated from the date of trial rather than from the date of death. In so doing, the highest court in the UK has overturned its own earlier decisions and taken the rare step of invoking the Practice Statement (Judicial Precedent), HL 1966; [1966] 3 All ER 77; [1966] 1 WLR 1234.
Until 1966, the House of Lords was bound to follow all of its own previous decisions under the doctrine of stare decisis, even if this led to injustice and unduly restricted development of the law. The Practice Statement recognised this anomaly and enabled their lordships to depart from a previous decision when it appeared right to do so. In the case of Knauer, the justices observed that:
This court should be very circumspect before accepting an invitation to invoke the 1966 Practice Statement. However, we have no hesitation in concluding that we ought to do so in the present case (para 23).
The conventional approach, which was labelled ‘unscientific’ and ‘illogical’ by the justices, was wary not to overcompensate dependents for their loss (paras 12 and 23 respectively). Consequently, case-law evolved requiring the multiplier for future losses to be calculated from the date of death, often putting claimants at a significant financial disadvantage by permitting their compensation to be discounted for accelerated receipt and the ‘vicissitudes of life’ between the date of death and the trial or settlement (para 6). This was clearly an anomaly as the losses had already been incurred and there was no early receipt of damages.
In the case of Knauer, had the multiplier been calculated from the date of death rather than from the date of trial, the financial disadvantage suffered by the claimant dependant would have been around £53,000. This bold Supreme Court ruling (comprising seven highly distinguished justices) will unquestionably benefit dependents placed in the unfortunate situation of having to recover compensation in order to safeguard their future financial security. Although no amount of money can ever compensate for the loss of a loved one, this decision does at least ensure that victims of negligence will now receive the full amount of compensation to which they are entitled.
The need for this much anticipated change is neatly illustrated in the first instance case of Corbett (by his father and next friend Brendan Desmond Corbett) v Barking Havering & Brentwood Health Authority [1991] 2 QB 408, where the dependent child was only two weeks old when his mother died. The multiplier for the care of the child was 12 years, and there was a time lapse of 11.5 years between her date of death and the trial taking place. The multiplier for the post-trial period was fixed at six months (ie, 12 years minus 11.5 years) despite the fact that, at the date of the trial, the actual period of dependency would have been 6.5 years (ie, 18 years minus 11.5 years). Such an outcome was unjust, but also illogical, and highlighted the need for change. In fact, the majority of the Court Of Appeal in Corbett felt compelled to increase the multiplier in this rather exceptional case; however, despite this the claimant remained substantially under-compensated.
A key reason why the Supreme Court retreated from the traditional approach was that there now exists a wholly different landscape compared with the times of Cookson and Graham above, and the English legal system is significantly more sophisticated than it was previously. The Actuarial Tables: with explanatory notes for use in personal injury and fatal accident cases, known as the Ogden Tables, which were not introduced until after Cookson and Graham, are a good example of this. The certainty and consistency of court decisions is paramount to the English justice system, and the Ogden Tables provide a degree of certainty and consistency in how the multiplier for future loss should be calculated. This, in turn, means that the multiplier is not left to the whim of judges’ gut feeling as it was in the bad old days.
It was suggested by counsel for the defendant that rather than the Supreme Court changing the law, it should be left to parliament to introduce enabling legislation. The justices’ response was unequivocal:
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 defects identiÿed above, then, unless there is 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 (para 26).
