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Leapfrog granted: The death knell for Cookson v Knowles?

Leapfrog granted: The death knell for Cookson v Knowles?

By Tamar Burton

It has long been the case that the multiplier in a fatal accident claim is assessed at the date of death rather than at the date of trial: Cookson v Knowles [1979] AC 556.  This is unlike the position in personal injury claims with living claimants where the multiplier is assessed at the date of trial.

The Cookson v Knowles Problem

Claimant lawyers, academics and the Law Commission have argued that the Cookson v Knowles approach causes unfairness and results in the under-compensation of dependants. The injustice is two-fold. First, a delay between the date of death and bringing a claim to trial means that the overall length of dependency is reduced. Second, a discount of 2.5% is made to the dependency award for the period between the date of death and the trial to reflect accelerated receipt. This is despite the fact that these sums that have not yet been received by the dependents due to the delay between death and trial. This is illogical and contrary to the traditional application of the discount rate to future losses only.

One example of the absurdity of this method of calculation is the frequently cited case of Corbett v Barking Health Authority [1991] 2 Q.B 408. The dependant was a young boy, who was two weeks old when his mother died at the age of 29. The case did not reach trial until 11 years and six months after his mother's death. The trial judge held that the boy would have been dependent on his mother until the age of 18. He further held that the multiplier to be adopted was 12 years from the date of the mother's death.  For future loss the judge awarded only six months' dependency, even though the boy was aged only 11 and a half at the date of trial and would on the judge's finding have been dependent on his mother for a further six and a-half years. The majority of the Court of Appeal increased the multiplier to 15. However, despite this, the dependency award covered only three and a half of the six and a half year dependency.

The rationale in Cookson v Knowles was that the deceased’s life expectancy, but for the accident, can only be reasonably set at the date he or she died. This case was decided in 1979.

As all personal injury and clinical negligence practitioners will be aware, this was before the widespread use of the Ogden tables following the case of Wells v Wells [1999] 1 AC 345. The multipliers in the Ogden tables take into account mortality, contingencies other than mortality and accelerated receipt. Therefore, the Ogden tables can be used to taken into consideration the uncertainty of the deceased’s life expectancy. This argument was summarised by Nelson J in White v ESAB Group (UK) Ltd [2002] P.I.Q.R QB:

 

When, however, the aim of the court is to do the best that it can to put the claimant as nearly as possible in the same position as he was before he was injured, the existence of a method of calculation which provides a known under compensation should in my judgment be reassessed. There is no reason why a court should not be able to assess uncertainties post death in a fatal claim as at the date of trial in the same way as it does in a personal injury claim when considering the uncertainties facing a living claimant in assessing his future loss. The actuarial tables themselves now deal with the question of mortality risk and whether, for example, a deceased would have remained in employment or become ill, or for other reasons ceased to provide maintenance, are all matters which a Court has to assess on the evidence available to it at the trial. The same is true of facts relating to a spouse such as mortality and the likelihood of a divorce or separation leading to no further maintenance.

 

The Law Commission conclusions that a multiplier which has been discounted for the early receipt of damages should only be used in the calculation of post trial losses has, in my view, considerable force, and if known facts as at the date of trial are to be taken into account, as they must be, they should, it seems to me, be taken into account by assessing the multiplier as at the trial rather than as at the date of death so as to avoid any illogical deduction for an accelerated receipt which has not taken place.”

Despite judicial acknowledgement of the unfairness of the Cookson v Knowles approach, judges below the Supreme Court level are bound by it. This was confirmed by the Court of Appeal in A Train & Sons Ltd v Fletcher [2008] EWCA Civ 413.

 

Leapfrog Permission Granted

The Supreme Court has recently given permission to the claimant in Knauer v Ministry of Justice [2014] EWHC 2553 to challenge the calculation of multipliers at the date of death in fatal claims.

Mrs Knauer died of mesothelioma at 46 after being exposed to asbestos while working at HMP Guy’s Marsh. Her husband brought claims under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. At first instance, Bean J (as he then was) held that he was bound to follow Cookson v Knowles but suggested he would calculate the multiplier at the date of trial “if it were open to me to do so.”

While many claimant lawyers are persuaded that the approach in Cookson v Knowles is wrong and that the assessment of fatal claims should be brought into line with personal injury cases, hopefully the Supreme Court will get a chance this time to consider the arguments.  It is understood that the case of A Train settled after the Court of Appeal.  Assuming the defendant does not buy off the appeal in the meantime, those representing dependants will be awaiting the Supreme Court’s decision with great interest.

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