Practice and Procedure


PUBLISHED November 25, 2003

The judge had exercised her discretion wrongly by permitting a joint report from an actuary to assist the court as to the appropriate multiplier in a fatal accident claim as that decision was a matter of law.Appeal from the order of District Judge Young on 12 August 2003 following a case management conference that the expert evidence of an actuary dealing with the calculation of multipliers should be given by the report of a single joint expert instructed by the parties jointly. The claim was under the Fatal Accidents Act 1976 following a road traffic accident from which the claimant's wife ('D') died. She left a dependent daughter ('C') who was disabled and would require care for the rest of her life. There was an issue between the parties as to the amount of the multiplicand representing D's care for C. The claimant's solicitors proposed to ask an actuary to calculate the multiplier on two bases: (i) the Cookson v Knowles (1979) AC 556 approach, as from the date of D's death; and (ii) the Ogden Tables approach, as from the date of trial. The claimant envisaged that the court would then decide the correct approach. The district judge ordered that an actuary appointed as a single joint expert would be of assistance to the court as this was a complicated matter and, as the Court of Protection was involved on C's behalf, the court wanted to be sure that the figures were right. The defendant appealed contending that the judge erred by failing to understand the purpose for which an actuary was called.HELD: (1) The judge's decision to permit a joint report from an actuary was wrong on the facts of this case. Actuarial evidence was irrelevant on the question of principle as the Law Commission and the Ogden Working Party had already analysed the need for the multiplier to be calculated as from the date of trial rather than from the date of death. The resolution of which of those dates should be used was a matter of law and did not require any further input from an actuary. (2) The involvement of the Court of Protection could not be a reason in itself for the instruction of an actuary. (3) The Ogden Tables (4th Edition) applied to the calculation of multipliers from date of trial. The criterion of simplicity required that in the majority of cases the tables alone would suffice for the purposes of the calculation. (4) Actuarial evidence was not required on the facts of the case. The judge's discretion was wrongly exercised and the order for a joint expert report should be rescinded.Appeal allowed.