Two House of Lords authorities have been overturned by the UK Supreme Court in an English appeal concerning the date from which the multiplier for a future loss of dependency claim should be calculated.
In Knauer v Ministry of Justice, seven judges today agreed that the multiplier to be applied to the annual value of the claim should be calculated from the date of trial rather than the date of the deceased's death.
In doing so they ruled that the reasoning in the House of Lords decisions of Cookson v Knowles  AC 556 and Graham v Dodds  1 WLR 808 was illogical and its application resulted in unfair outcomes.
The decision brings the law in England & Wales back into line with that in Scotland, where a similar change was made by the Scottish Parliament in the Damages (Scotland) Act 2011.
The claimant, Mr Knauer, sued following the death in August 2009 of his wife, who had been employed at HM Prison, Guy’s Marsh, from mesothelioma. Liability was admitted in 2013 and a hearing on damages took place in 2014. The trial judge held that he was bound by the authorities to calculate the multiplier from the date of death, although he would have preferred to calculate from the date of trial in line with the approach recommended in a Law Commission report.
In a joint judgment by Lord Neuberger and Lady Hale, with which Lords Mance, Clarke, Reed, Toulson and Hodge agreed, the court said it had no hesitation in concluding that this was a case when it was appropriate to depart from precedent.
The most important reason was that there had been a material change in the relevant legal landscape. Cookson and Graham were decided in a different era, when the calculation of damages for personal injury and death was nothing like as sophisticated as it is now and the use of actuarial evidence or tables was discouraged. Since then, the Ogden Tables, first produced in 1984, had been endorsed by the courts and included fatal accident calculations based on the recommendations of the Law Commission. There was now a perfectly sensible way of addressing the concern then expressed over how to deal with the uncertainties around what would have happened to the deceased between the death and the date of trial.
A further concern that the longer the trial were delayed, the more a claimant would be able to recover if the date of trial were adopted, was also less of an issue due to the transformation of the litigation landscape, with the court now being able to set timetables and insist that the parties kept to them. In any event, the proper use of the Ogden Tables made the concern irrelevant.
The judges also commented that the unfair effect of the previous rule had led courts to distinguish the earlier cases on inadequate grounds, which meant that certainty and consistency were being undermined.