Compensation in fatal accidents cases: In what will be a welcome decision for claimants, on 24 February 2016 the Supreme Court gave judgment in the long- awaited case of Knauer v Ministry of Justice 29 declaring that damages for future losses in fatal accidents cases should be assessed from the date of trial, not from the date of death. In doing so, the Supreme Court reversed the decision of the House of Lords in Cookson v Knowles 30 which many, including the Law Commission, had long since been advocating needed to be addressed.

Few will be unfamiliar with the facts of the case, particularly as this newsletter has been following the progress of the case since Autumn 2014, but for those of you who have had your heads in the sand: Mrs Knauer was employed by the Ministry of Justice as an administrative assistant in one of its prisons and sadly contracted mesothelioma as a result of exposure to asbestos in the course of that employment. She died in 2009 and her widower subsequently issued a claim for damages under the Fatal Accidents Act 1976. Liability was ultimately admitted and the matter came before Bean J for an assessment of damages hearing, the claimant contending that the time had come to depart from the Cookson v Knowles approach and to calculate the multiplier for future losses as from the date of trial. Bean J considered himself bound to follow the House of Lords’ decision in Cookson but granted the claimant a leapfrog certificate, enabling him to proceed straight to the Supreme Court.

The decision of the Supreme Court was unanimous: Cookson v Knowles had been decided in a different era when the calculation of damages for personal injury and death was nothing like as sophisticated as it is now, when the Ogden Tables did not yet exist and where the use of actuarial tables as a means of calculating losses was discouraged on the basis that they could give a false appearance of accuracy in an area which involved a high degree of estimation and conjecture.

The fundamental proposition of tort law was, so far as possible, to place the person harmed in the position in which he would have been had the harm not been done: full compensation, no more but certainly no less. Therefore, as calculating damages from the date of death resulted in under compensation in most cases, it was plainly inappropriate that this approach should still be used and a date of trial calculation, with reduction factors applied to address the risk that the deceased would have died before trial, should therefore be adopted henceforth.

Schedules of loss on existing cases will now need to be recast in light of this far-reaching decision. Practitioners who have settled cases which require the approval of the court should ensure that the settlements agreed remain reasonable and claimant representatives may need to demonstrate to the court that the value of the claim has been reconsidered since judgment was handed down.Uplifts in general damages: on 11 February 2016 the Court of Appeal handed down its decision in Summers v Bundy 31  clarifying the effect of Simmons v Castle,32 i.e. that a 10% uplift must be applied to all awards for general damages, with the only exception being those that fell within section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’).

This appeal concerned a clinical negligence case and raised a short point as to the appropriate award for general damages. The trial judge, HHJ Gargan, had decided that the assessment of whether or not to award a 10% uplift on general damages was a matter of his discretion. The claimant, Mr Summers was legally aided throughout the claim and the judge took the view that, as a result, he should not be awarded an uplift on his general damages, stating that ‘…The purpose of the 10 per cent increase was at this stage to compensate those claimants who had to pay the CFA uplift to their lawyers out of their general damages…Because the Claimant in this case is in receipt of legal aid he does not have any uplift to pay to his solicitor and it seems to me therefore that it would be wrong to penalise the Defendant who is not getting the benefit of a windfall…’

Davis LJ giving judgment on the appeal held (at paras 21-23) that, as Mr Summers clearly did not come within the exception at s44(6) of LASPO, the judge at first instance did not have discretion as to whether to award the 10% uplift:

  1. There could not be a principled basis for permitting some  legally  aided  claimants  to  obtain  an  uplift and others not to, and therefore this would create uncertainty  for  parties  in  determining  the  form and content of Part 36 offers or other settlement proposals; and
  2. The judge’s approach was, quite simply, precluded by   the two decisions in Simmons, which had been  designed to produce ‘simplicity and clarity’; furthermore
  3. It was inconceivable that the Court of Appeal in Simmons, or the professional bodies appearing before it, would have overlooked the significant class of legally aided claimants had it been envisaged that there would be some further exception applicable to that class; accordingly
  4. The judge’s approach had been ‘wholly inconsistent’ with Simmons and with the treatment of conventional claimants;
  5. The appellant was therefore entitled ‘as of right’ to an award of general damages with a 10% uplift.