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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> White (widow and Administratrix of the Estate of David Charles White Deceased) v Esab Group (UK) Ltd [2001] EWHC QB 453 (11th October, 2001) URL: http://www.bailii.org/ew/cases/EWHC/QB/2001/453.html Cite as: [2002] PIQR Q6, [2001] EWHC QB 453

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White (widow and Administratrix of the Estate of David Charles White Deceased) v Esab Group (UK) Ltd [2001] EWHC QB 453 (11th October, 2001)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th And 11th October 2001

Mr Justice Nelson :

1. On the 4th May 1997 David Charles White died from mesothelioma due to exposure to asbestos in the course of his employment with the Defendants as a plumber and machine fitter from 1967 until he was unable to continue working for them by reason of his terminal illness in 1996. The Claimant, his widow, claims damages under the Law Reform (Miscellaneous Provisions) Act 1934 and under the Fatal Accidents Act 1976. Liability has been admitted and the action proceeded before me on the assessment of damages only.
2. The issue which arises in this case is whether the multiplier used in assessing future dependency under the Fatal Accidents Act should be determined as at the date of death, or as at the date of trial. At the commencement of the hearing before me the amount of the claim was also in dispute but differences were resolved during the hearing and two alternative totals agreed. On the conventional basis of the assessment of the multiplier for past and future dependency, namely as at the date of death, total damages were agreed in the sum of £280,000. On the basis put forward by the Law Commission, namely that the future dependency, i.e. post trial losses, should be assessed as at the date of trial, total damages in the sum of £310,339.98p were agreed.
3. The Claimant submits that the use of a multiplier which has been calculated as at the date of death to include both pre-trial and post trial losses will result in under compensation. This arises because the actuarial tables which were used (Government Actuary’s Department, Actuarial Tables with explanatory notes for use in Personal Injury and Fatal Accident cases) were adjusted to reflect a discount for early receipt when no such early receipt had taken place in respect of pre-trial losses.
4. The Law Commission in its report on Claims for Wrongful Death (Law Comm. number 263) recommended that in order to deal with this problem a multiplier which has been discounted for the early receipt of damages should only be used in the calculation of post trial losses. They asked the Working Party responsible for the actuarial tables with the Government Actuary’s Department under the chairmanship of Sir Michael Ogden QC, to consider how the Ogden tables should be used or amended to produce accurate assessments of damages in Fatal Accident Act cases. In response to this request the Ogden Working Party produced the fourth edition of the actuarial tables which adopted the Law Commission’s recommendations.
5. The Law Commission and Sir Michael Ogden in his introduction to the fourth edition of the actuarial tables in August 2000 expressed the opinion that legislation was not required to give effect to the revised method of calculation in view of Lord Lloyd’s speech in the case of Wells -v- Wells [1999] 1AC at 379, when he said that the Ogden tables should be the starting point for the assessment of multipliers. The views and recommendations of the Law Commission and the Ogden Working Party have received strong support from the editors of Kemp and Kemp (volume 2 21-002/5 - 21-003).
6. The Defendant submits that the conventional approach is clearly established in the House of Lords decisions of Cookson -v- Knowles [1979] AC 556 and Graham -v- Dodds [1983] 1 WLR 808, that those decisions were fully considered, and correct, and in any event are binding upon this Court. The Defendant also sought to argue that there should be a greater discount on pension dependency than the Ogden tables permitted, but in the absence of any evidence upon the matter did not pursue it before me.
7. As an alternative contention, the Claimant submits that the case of Corbett -v- Barking Havering and Brentwood Health Authority [1991] 2 QB 408 enables the Court to take account of the survival of the dependant and the fact that there has been no accelerated receipt between date of death and trial so as to adjust the multiplier fixed at death. The Defendant submits in relation to this alternative contention that the dissenting judgment of Lord Justice Ralph Gibson is to be preferred and that no adjustment can be made to the multiplier on the facts of this case.

The Law.

8. The calculation of the multiplier in a Fatal Accident Act case was expressly considered by the House of Lords in Cookson -v- Knowles [1979] AC 556. Lord Fraser, with whose speech Viscount Dilhorne, Lord Salmon and Lord Scarman concurred, considered whether the damages ought to be assessed as at date of death or as at date of trial. He said:-

"In strict theory I think there is no doubt that they should be assessed as at the date of death, just as in theory they are assessed at the date of injury in a personal injury case." (574)

9. In assessing damages to be awarded to dependants Lord Fraser said the Court has to make estimates of many uncertain factors such as the amount of time that the deceased would probably have continued to work and what he would have earned during that time. But when events have occurred between the date of death and the date of trial, which enable the Court to rely on and ascertain facts rather than mere estimates they should be taken into account in assessing damages. (575)
10. It was argued before the House of Lords that the method of calculation of the multiplier should be the same in personal injury and fatal accident cases, as otherwise unfairness would be created. The Court of Appeal had used a multiplier of 11 from the date of death of the deceased, and had then deducted 2½ years in respect of the 2½ years from the date of death to the date of trial leaving a balance of multiplier of 8½ for damages after the date of trial. If the deceased had had a twin brother, it was contended, who had been injured on the same day as the deceased was killed, his multiplier would have been assessed as at the date of trial and it would have been higher than 8½. Lord Fraser accepted that that assumption was probably correct but said that it did not follow that the multiplier of 8½ was too low in the Fatal Accidents Act claim where different considerations applied:-

"In a personal injury case, if the injured person has survived until the date of trial, that is a known fact and the multiplier appropriate to the length of his future working life has to be ascertained as at the date of trial. But in a fatal accident case the multiplier must be selected for once and for all as at the date of death, because everything that might have happened to the deceased after that date remains uncertain. Accordingly having taken a multiplier of 11 as at the date of death, and having used 2½ in respect of the period up to trial, it is in my opinion correct to take 8½ after the date of trial. That is what the Court of Appeal did in this case." (576)

11. None of their Lordships expressly considered the effect of accelerated receipt on damages but the Defendant submits that it must have been in Lord Fraser’s mind when specifically considering the contrast between the case of the twin brothers one of whom was injured and one of whom was killed in the same accident.
12. In Cookson it was held that the damages calculated by reference to a single multiplier taken as at death should be divided into two parts, the pre-trial loss and the future loss. Interest was only to be awarded at half short term interest rates on the pre-trial loss between the date of death and the date of trial with no interest on the future loss. The Court of Appeal in Northern Ireland in the case of Graham -v- Dodds [1983] 1 WLI 208, reached the conclusion that Lord Diplock and Lord Fraser in Cookson had expressed opposite and irreconcilable opinions. This conclusion was rejected by the House of Lords which found that the Court of Appeal in Northern Ireland had based their decision on a misunderstanding of the decision in Cookson. Lord Bridge said that the ‘propriety of calculating the overall multiplier from date of death was not questioned’ in Cookson. Lord Bridge set out the passage in Lord Fraser’s judgment in Cookson in which he said that the multiplier must be selected ‘once and for all as at the date of death’ and described Lord Fraser’s reasoning as being as cogent as it was clear. Lord Bridge said that any doctrine that the multiplier could be calculated on the assumption that the deceased, if he had survived the accident, would have remained alive and well and in the same employment up to the date of trial ignored the uncertainty which effects everything that might have happened to the deceased after the date of his death and was ‘clearly contrary to principle and would lead to the highly undesirable anomaly that in fatal accident cases the longer the trial of the dependants’ claims could be delayed the more they would eventually recover.’ (815)
13. There is therefore clear House of Lords authority for the proposition that the multiplier in a Fatal Accident Act case both for pre-trial loss and future loss should be calculated as at the date of death. It should however be noted that both these decisions were made before reliance upon actuarial tables became common or accepted practice. The first year that the Ogden tables were published was in 1984, the year after the decision in Graham -v- Dodds.
14. The Law Commission state their disagreement with Lord Fraser’s assertion that the multiplier should inevitably be selected ‘once and for all’ as at the date of death firstly on the basis that it is unnecessarily exclusive even in cases where the deceased’s life expectancy controls the multiplier and secondly that it appears to have no application at all to cases where the duration of the Claimant’s needs controls the multiplier. In the former case there may be circumstances arising after death such as advances in medical science which could now treat a life shortening medical condition which could not be treated in the deceased’s lifetime, which will affect the accuracy of any multiplier calculated as at the date of death. In the latter case the Law Commission concludes that the selection of a multiplier as at the date of death has no logic whatsoever as it is the Claimant’s circumstances not the deceased’s which are relevant to the selection of the multiplier and the Claimant’s circumstances are best viewed in the light of all the facts known at trial. (Paras 4.8 and 4.10)
15. In Corbett -v- Barking Havering and Brentwood Health Authority [1991] 2 QB 408 the Court of Appeal considered itself bound by the date of death calculation rule even though the multiplier in that case was effected primarily by the Claimant’s needs, the Claimant being a child who would have been dependant on his deceased young mother only until adulthood. When the trial took place the infant Plaintiff was 11½ with a dependency until the age of 18. As the multiplier calculated as at the date of death was 12 there was only one half of a year left for the future dependency. The majority of the Court of Appeal dealt with this anomaly by increasing the multiplier to 15 by adjusting it to take into account facts which had arisen from the delay before the trial took place, namely the survival of the infant Plaintiff. The multiplier was therefore not fixed at the date of trial but left as at the date of death and then adjusted to take into account new facts. Lord Justice Ralph Gibson in dissenting said that the majority’s conclusion was in effect to calculate the multiplier as at the date of trial and hence departed from the reasoning in Graham -v- Dodds.
16. Furthermore the Law Commission point out that if a discount is to be made from the multiplier selected as at death, as in Corbett, the discount should only be made from the proportion of the multiplier to be used in the calculation of the Claimant’s future loss and that any adjustment made to the date of death calculation at trial would be insufficient to counteract the erroneous discount for early receipt. In Corbett the discount was made on the whole multiplier.
17. The Law Commission concludes therefore that the present law is still subject to two powerful criticisms even with the mitigating effect of the decision in Corbett. First it is irrational and unduly complex to calculate the Claimant’s life expectancy at the time of death, only to make an adjustment to the inaccurate ‘date of death’ figure to take account of information relevant to the original calculation. This irrationality and complexity appeared to be based on the erroneous assumption that the deceased’s life expectancy would always control the multiplier. Secondly the approach in Corbett may still result in the adoption of a lower multiplier than the simple date of trial calculation raising the criticism of inaccuracy. (Para 4.13)
18. The Defendant mounts another criticism against the decision in Corbett upon the basis that it is frequently the case that a dependant survives until trial and the anomaly in that particular case only arose because of the very substantial delay in getting the case to trial. It was, the Defendant submitted, a hard case making bad law.
19. Claimants are now strongly discouraged from delaying their claims and the Court has power to withhold interest for a period of time between death and the date of trial. Delay can therefore, the Claimant submits, be dealt with so as to prevent any unfairness, and should not therefore be taken as a contra indication to assessing the multiplier as at the date of trial as Lord Bridge appears to have suggested in Graham -v- Dodds. (815). The Court’s duty to manage litigation in accordance with the overriding objective under the Civil Procedure Rules provides a further weapon against delay; the Court could fix a notional date when the trial should have been brought and assess damages as at that time.
20. Although the question of a discount for accelerated receipt was not considered expressly in either Cookson or Graham it had in fact been considered by Mr Justice Balcombe, as he then was, after the Court of Appeal decision in Cookson and before the House of Lords decision. He said that he did not understand why the Court of Appeal had calculated the multiplier as at the date of death and then deducted the 2½ years which had lapsed between death and the date of trial from that multiplier. He said:-

"I do not understand the reason for doing this. Since the multiplier is intended to reflect the fact that a lump sum award is being made in respect of future annual loss, and to reflect all contingencies - e.g., that either the deceased or the dependant may not have survived the relevant period - it seems to me to follow that the multiplier must necessarily be determined as at the point of time from which one is looking forward, i.e., the date of trial according the second part of the ruling in Cookson -v- Knowles." (Dodds -v- Dodds [1978] 1 QB at 553.)

21. The editors of MacGregor on Damages 16th Edition 1997 paragraph 1773 suggests that the proper approach was that which was adopted in Dodds -v- Dodds. When a single calculation of loss of dependency for the whole period from death was made it followed that the multiplier must be calculated as from the date of death (e.g. Kay -v- J M P Co [1976] QB 85) but when Cookson and Knowles required separate calculations for the loss of dependency up to trial and for the loss of dependency from trial onwards it then followed that the starting point for the multiplier needed for the second part of the computing exercise becomes the date of trial. The editors of MacGregor however then accepted that whatever it should have been, the law was that the assessment takes place as at the date of death as decided in Cookson and Graham.
22. The Law Commission conclude and the Claimant submits that whatever the position after Cookson and Graham the landscape has been radically changed by the House of Lords in Wells -v- Wells [1999] 1AC 345. Firstly the House of Lords in Wells indicated that the Court should strive to put a Claimant as nearly as possible in the same position as he was before he was injured:-

" The purpose of the award for an injured Plaintiff is, in so far as a sum of money can do so, to put him as nearly as possible in the same position as he was in before he was injured. One has to accept that the calculation will not altogether be exact, but one has to do the best one can to achieve as close an approximation as may be possible. The tendency over recent years has been to pursue with increasing sophistication a greater degree of particularity and precision." (Per Lord Clyde 394)

23. Secondly Lord Lloyd noted that there had been in the past a continuing hesitation to embrace the actuarial tables but said:-

"I do not suggest that the Judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as the starting point, rather than a check. A Judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to ‘a spread of multipliers in comparable cases’ especially when the multipliers were fixed before actuarial tables were widely used." (379)

24. Both the Law Commission and Sir Michael Ogden expressed the opinion that after Wells and Wells the Courts should have no difficulty in applying a new more scientific approach despite Cookson -v- Knowles. (Para 4.20 Law Comm and Sir Michael Ogden’s introduction to the 4th edition of the actuarial tables).
25. It should however be noted that the House of Lords in Wells were dealing with personal injury litigation not Fatal Accident Act cases. The issue in the case was whether a lump sum was to be calculated by reference to investment in index linked Government securities producing an annual net return on capital of 2.5 - 3% or on the conventional basis of a mixture of equities and gilt’s producing an annual return of 4 - 5%. The ILGS calculation resulted in a significantly greater lump sum payment than the conventional basis. The difficulty in choosing between the two methods arose because money does not retain its value and Lord Lloyd posed the question of how a Court was to ensure that a Plaintiff receives the money he will need to purchase the care he needs as the years go by despite the impact of inflation. (364) In other words the need for the decision was created by changing economic circumstances and patterns rather than by any error in earlier judicial authority or approach.
26. The effect of the decision in Wells -v- Wells, the Law Commission recommendations, the Ogden tables 4th edition and the views of Kemp and Kemp have already been considered by Mr Nigel Wilkinson QC sitting as a Deputy Judge of the High Court in Wilkins and William Press Limited and another (unreported transcript 30th November 2000). He considered himself bound by Cookson -v- Knowles and refused to increase the multipliers which would be appropriate as at the date of death. The Claimant submits however that it does not appear from the transcript that the accelerated receipt point was argued before the Deputy Judge.

The merits of the Claimant’s contentions.

27. The Law Commission report, and the Ogden Working Party report and 4th Edition of the actuarial tables, together with the strong support of the editors of Kemp and Kemp present a powerful case, which for my part, I am persuaded is correct. The actuarial tables have long been in use and have proved a very valuable tool in assisting Courts to reach towards proper compensation in each case. When Cookson -v- Knowles and Graham -v- Dodds were decided there was a hesitancy about accepting actuarial aids as anything other than a check to an impressionistic assessment of a multiplier. The House of Lords have now said that the actuarial tables should be regarded as the starting point rather than just a check for calculating multipliers. If however they are used in Fatal Accident Act cases to calculate a multiplier as at the date of death, a discount for accelerated receipt will be made for the whole multiplier when in fact for losses up to the date of trial there has been no accelerated receipt. The Claimant will inevitably in such circumstances be under compensated.
28. The Defendant’s contention is that there are many areas in the calculation of damages in fatal accident cases which are imprecise and rough and ready, and perfect compensation can never be achieved. The uncertainty as to what would have happened if the deceased had not died make it appropriate for a discount to be made even if that discount is not strictly applicable as there has been no accelerated receipt. In other words the Defendant submits, the uncertainties are reflected by the discounted rate. Even if the discount is often greater than the table now reveal as correct, the Defendant submits, as Lord Justice Ralph Gibson said in Corbett (438), that that is because the law requires the damages to be calculated in that way.
29. When however the aim of the Court is to do the best that it can to put the Claimant as nearly as possible in the same position as he was before he was injured, the existence of a method of calculation which provides a known under compensation should in my judgment be reassessed. There is no reason why a Court should not be able to assess uncertainties post death in a fatal claim as at the date of trial in the same way as it does in a personal injury claim when considering the uncertainties facing a living Claimant in assessing his future loss. The actuarial tables themselves now deal with the question of mortality risk and whether, for example, a deceased would have remained in employment or become ill, or for other reasons ceased to provide maintenance, are all matters which a Court has to assess on the evidence available to it at the trial. The same is true of facts relating to a spouse such as mortality and the likelihood of a divorce or separation leading to no further maintenance.
30. The Law Commission conclusions that a multiplier which has been discounted for the early receipt of damages should only be used in the calculation of post trial losses has in my view considerable force, and if known facts as at the date of trial are to be taken into account, as they must be, they should, it seems to me, be taken into account by assessing the multiplier as at the trial rather than as at the date of death so as to avoid any illogical deduction for an accelerated receipt which has not taken place.
31. I am not however satisfied that there is any merit in the Claimant’s alternative contention based on Corbett. There are no new facts of any significance here. The survival of the dependant occurs in most cases and in my view has no effect on the multiplier on the facts of this case. It cannot be said that the fact that there has been no accelerated receipt between date of death and trial is a factor which should be taken into account. That is not a fact which relates to Mrs White but to all Claimants. Nor is it a fact which has arisen between the death and the trial.
32. The question then arises as to whether a first instance Court has any power to effect what it seems are desirable changes in the Court’s approach to the calculation of multipliers in fatal claims. I deal with this in two sections, firstly whether the rule in Cookson and Graham is a rule of law, practice or a guideline binding upon this Court and secondly whether the effect of Wells and Wells is to enable any Court, including the first instance Court simply to apply the current Ogden tables.

The ‘date of death calculation’ rule - law, practice or guideline.

33. Lord Fraser in Cookson said that ‘in strict theory’ damages should be assessed at the date of death. (574) He also said that in a Fatal Accident Act case ‘the multiplier must be selected once and for all as at the date of death..’ (576). This is in contrast to his opinion on the awarding of interest under statute where he said that the Courts had a wide measure of discretion and the House of Lords could only provide guidelines as to the principles on which the discretion should be exercised. (578)
34. Lord Bridge in Graham -v- Dodds said that the issue of whether in assessing damages for loss of dependency arising from a fatal accident the multiplier or number of years purchased should be calculated from the date of death or from the date of trial was ‘strictly one of law’.(813) He referred to any contention to the contrary of the multiplier being assessed as at death as being ‘contrary to principle’ and described the Court of Appeal in approving directions to the jury in Northern Ireland on the basis of pre-trial loss being treated as special damage as having ‘erred in law’.
35. These passages in the opinions in the cases of Cookson and Graham suggest that the House of Lords regarded the ‘date of death calculation’ rule as being a rule of law. There are numerous references in the cases to ‘guidelines’ and the exercise of discretion but these relate to matters concerning interest or discount rates. Thus in Cookson Lord Diplock referred to the Court laying ‘guidelines’ as to the matters to take into account in exercising the discretion conferred on it by statute in the award of interest. Lord Salmon said that the Courts could only lay down broad guidelines for assessing damages ‘in cases where the facts are similar to those of the instant case and where economic factors remain similar to those now prevailing’ (574). This appears as does, the rest of his brief judgment, to relate to changing economic factors such as inflation and investment in equities. Lord Scarman referred to guidelines not being treated as though they were a rule of law (579) but again that refers to the award of interest.
36. In Wells -v- Wells Lord Lloyd said that guidelines as to interest are not to be regarded as rules of law or even rules of practice, they set no binding precedent and can be altered as circumstances alter. ‘It follows that a new approach to setting the appropriate discount rate.. does not have to be justified under the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.’ (372) Here also, Lord Lloyd was referring to guidelines on the exercise of discretion as to interest or the decision of the Court in changing economic circumstances.
37. The Court of Appeal considered itself bound in Corbett and Lord Justice Farquharson said that it was not open to the Court to calculate the measure of damages as at the time of trial in view of the two decisions in Cookson and Graham which did not permit that course. (445)
38. There is in my judgment a clear distinction to be drawn between guidelines as to discretion or changing economic circumstances and decisions in principle. I am satisfied on the basis of the passages in the authorities set out above that the ‘date of death calculation’ rule is a rule of principle or law rather than a guideline. This Court is therefore bound by that rule.
39. It would in practice make no difference were the matter to have been only a guideline. Guidelines can only be altered by Appellate Courts not by first instance Courts.

The effect of Wells and Wells.

40. When Lord Lloyd said that the Ogden tables should now be regarded as the starting point rather than a check, and that a Judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, he was dealing with the general approach to the assessment of damages, and in particular multipliers, in personal injury cases. As the decisions in Cookson and Graham emphasis the difference between the calculation of multipliers in personal injury and fatal cases it cannot be assumed that the House of Lords in Wells intended this part of their judgment to apply to Fatal Accident Act claims as well as personal injury claims. The Ogden Working Party said ‘it seems obvious to us that when directing Courts to use the tables, the House of Lords would have regarded it as absurd that the tables should be used in such a way as to produce an inaccurate answer through using them in fashion which was appropriate to the old approach. Consequently we do not consider that any of the cases decided before Wells and Wells precludes the Courts from using our recommended procedure.’
41. For my part I am not satisfied that the House of Lords must be taken to have been referring to Fatal Accident Act claims as well as personal injury claims. The ‘new approach’ referred to related to the setting of the appropriate discount rate and not to any principle of law established by the House of Lords in Cookson or Graham. When Wells -v- Wells was decided the Law Commission report had been published (November 1999) but the section on fatal accidents was neither referred to nor inevitably encompassed within the judgment. The 4th edition of the Ogden tables had not been yet produced. It is therefore in my judgment necessary for an Appellate Court to consider the matter before it can be taken that the procedures recommended in the 4th edition of the Ogden tables must be followed.
42. The decision in Corbett provides no solution on the facts of this case and the fact that the Court of Appeal adopted a more flexible approach does not mean that established principle can be altered by a first instance court.
43. There must, as the Defendant submits, be certainty in litigation so that the parties know where they stand. If I were to accede to the Claimant’s arguments, and make my decision meet the merits as I see them, I would be ignoring authority and causing confusion until such time as the matter had been dealt with by an Appellate Court. It would be inappropriate for me to take that course.

Conclusion.

44. I conclude that the Law Commission recommendations are correct and that the multiplier in respect of post trial losses in a fatal claim should be calculated as at the date of trial rather than as at the date of death. The procedure recommended in the Ogden tables 4th edition section D should be followed.
45. Whilst these are my views as to the merits however I am bound by authority to follow the date of death calculation rule set out in Cookson -v- Knowles and Graham -v- Dodds. Neither of these authorities in my judgment is expressly or impliedly overruled by the decision of the House of Lords in Wells -v- Wells. Nor does that decision provide a means of distinguishing them.
46. Accordingly I award the Claimant damages in the agreed sum of £280,000.

11th January 2002