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Future Loss in Fatal Claims: Logic Restored
The Appellant’s appeal was unanimously allowed. The Court has overruled the principle established by the case of Cookson v Knowles  AC 556 and held that the multiplier for future loss in a claim under the Fatal Accidents Act 1976 should be calculated at the date of trial rather than the date of death.
In a single judgment written by Lord Neuberger and Lady Hale (with whom Lord Mance, Lord Clarke, Lord Reed, Lord Toulson and Lord Hodge agree) the Court fully endorsed the conclusions of the Law Commission report Claims for Wrongful Death (1999) (Law Com No 263).
The Court described the current approach in fatal accident cases, taking a multiplier at the date of death and then deducting from it the time that has elapsed between death and trial as: “to mix up a calculation based on properly considered actuarial principles with an arbitrary arithmetical deduction.”
The Court classified Cookson v Knowles  AC 556 and Graham v Dodds  1 WLR 808 as cases of “a different era, when the calculation of damages for personal injury and death was nothing like as sophisticated as it now is.”
The government’s submission that the application of the rule in Cookson v Knowles  AC 556 and Graham v Dodds  1 WLR 808 was not unfair because some Claimants were over-compensated in fatal claims was rejected by the Court. There was no appeal from the trial judge’s award under other heads of loss and, in any event, it does not follow that just because some Claimants are overcompensated the Claimant in this case should be undercompensated. For Sally Knauer’s family, the parties agreed that fixing the multiplier at the date of trial made a difference of £52,808.
Last week we saw the Court acknowledge, in the context of joint enterprise, that the criminal law had “taken a wrong turn” in 1984.
Personal injury and clinical negligence practitioners will welcome the fact that the Court has taken the opportunity to remove the unfairness that has applied since 1979 to the calculation of future losses in fatal cases.
The Court invoked the 1966 Practice Statement and emphasised that (as in the joint enterprise case) it was overturning judge-made law:
“The current law on the issue we are being asked to resolve was made by judges, and, if it is shown to suffer from the defects identified above, then, unless there is a good reason to the contrary, it should be corrected or brought up to date by judges.”
For a detailed consideration of the issues in the case, please see: Leapfrog granted: The death knell for Cookson v Knowles?