Knauer v MOJ – which way will the Supreme Court decide?

For any practitioner undertaking fatal accident personal injury work, this decision is long awaited.  Seven Supreme Court judges sat on 28 January 2016 considering this “leapfrog” appeal from the High Court on just one issue: when determining the damages to be awarded for income and services dependency under the Fatal Accidents Act 1976, should the multiplier for future loss be assessed as at the date of death or the date of trial?

The current law is governed by a 1979 House of Lords decision in Cookson v Knowles [1979] AC 556 in which the Court held that the appropriate date for calculation was the date of death.  Despite this decision pre-dating the Ogden tables, the Courts have been bound by the decision for more than 35 years, which those representing claimants argue has led to an inequality and undermines the basic principle of the claimant being entitled to recover full compensation.

In Knauer v MOJ, the trial judge, Mr Justice Bean, rejected the argument that the multiplier should be calculated from the date of trial only because he was bound by Cookson and indicated he would have followed a different path if possible.  He therefore enabled the claimant to apply directly to the Supreme Court for permission to appeal on this issue.  The fact that the Supreme Court sat as seven judges suggests that they see this as an important issue and one that they will consider carefully before providing judgment.

The hearing can be viewed online and most observers consider the arguments advanced by Frank Burton QC for the dependents of Sally Knauer to be the more persuasive.  He relied on the view expressed by the 1999 Law Commission report on claims for wrongful death which supported the contention that the multiplier should be taken from the date of trial and not the date of death. However despite the Law Commission’s recommendation, the Courts have continued to be bound by the common law which many see as illogical.

Mr Burton argued that the difference, depending on whether the date of death or the date of trial was adopted when calculating the multiplier, would be in the region of £50,000 which was approximately 10% of the overall claim as advanced.  He argued that the courts were now far better equipped by the use of actuarial tables than had been the case when Cookson was decided and therefore better able to calculate the right level of compensation if the previous methodologies were departed from.

The arguments advanced on behalf of the Ministry of Justice were limited and appeared less forceful than those advanced for the Appellant. It is difficult to say which way the Court will decide and the reserved judgment is awaited, but parties on both sides of the argument wait with bated breath for the decision.

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