Fixing a bad date – future loss in Fatal Accident Act cases

In a personal injury claim past loss is calculated to the date of trial and future loss is calculated from the date of trial. However, since the judgment of the House of Lords in Cookson v Knowles [1979] AC 556, in Fatal Accident cases future loss has been calculated from the date of death.

In Report 263 by the Law Commission (Claims for Wrongful Death) published as long ago as 1999 an actuarial flaw was recognised in this method of calculation – it incorporates a discount for early receipt of monies that are not in fact received early. As such, claimants were being undercompensated. The report recommended that future loss in Fatal Accident cases be calculated from the date of trial, in line with standard personal injury claims.

Knaur v Ministry of Justice [2016] UKSC 9 

Finally, 17 years after the recommendation, the Supreme Court has changed the law to implement it. In the case of Knauer v Ministry of Justice [2016] UKSC 9 it was held that “the correct date as at which to assess the multiplier when fixing damages for future loss in claims under the Fatal Accidents Act 1976 should be the date of trial and not the date of death”.

The change is retrospective and therefore applies to all Fatal Accident claims that are currently proceeding.

The necessary calculations now need to take into account the risk that the deceased would have died in any event between their actual date of death and the date of trial. The Supreme Court recognised that such a discount will usually be very modest, but there may be appropriate cases in which it is more substantial. A different discount will need to be applied to both (i) post-death but pre-trial losses and (ii) post-trial losses.

Those familiar with the Ogden Tables will recognise this method of calculation as the “Actuarially Recommended approach” set out in the Explanatory Notes. A full explanation as to the implementation of the Actuarially Recommended approach can be found at paragraphs 64 to 81 of the seventh edition of the Ogden Tables, which can be downloaded from.

The judgment in Knauer v MOJ can be downloaded from here.

Richard Paige practices in all areas of personal injury and clinical negligence on behalf of both Claimants and Defendants and frequently prepares schedules and counter-schedules incorporating substantial future loss claims.