Octoberbrochure - (Page 4) THE SIXTH EDITION OF THE OGDEN TABLES: A Year On The sixth edition of the Ogden Tables was published in March 2007, utilising new research and introducing a new method of calculating future loss of earnings. The new tables have now been used for over a year and this article assesses how they have been interpreted and applied by the Courts. In Wells v Wells [1999] AC 945 Lord Lloyd said “I do not suggest that judges should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as a starting point rather than a check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds…”. Have the Courts been quick or slow to depart from the new tables and the often very different results that they now produce? Previous editions of the Ogden Tables were based on Labour Force Surveys from the 1970s and 1980s reflecting a very different economy and labour market to what we have today. New research by Dr Wass and Professor Verrall and his colleagues identified the key factors which affect a person’s future working life to be whether they are employed, whether they are disabled, and their level of educational achievement. Their studies found that an unemployed disabled male with no qualifications will only work for 23% of their working life to 65 whereas a non-disabled male educated to degree level would be in work for 92% of their working life to 65. Their research demonstrated that while a quarter of claimants were being overcompensated the majority were being undercompensated. On the application of resulting new tables claimants made disabled by accidents could be awarded significantly greater compensation than under previous Catherine Atkinson tables. Conversely, claimants found to have been disabled prior to injury could see significantly lower compensation. So has this been reflected in the Courts? In Conner v Bradman & Company Limited (2007) EWHC 2789 (QB) the Claimant’s injury led to instability in his knee and necessitated a knee operation which would prevent him from continuing in his profession as a mechanic. The Claimant’s intention was to become a taxi driver. The principle issues were whether the Claimant was, as a result of his injury, disabled and if so whether the discount to his residual earning capacity of 0.49, as stipulated by the Ogden Tables, should be applied. HHJ Coulston QC found the Claimant was disabled but considered it likely that he would be able to continue working for more than half of his remaining working life as a taxi driver. The discount of 0.49 was therefore adjusted to 0.655 (half way between the discount of 0.49 applicable to the Claimant as disabled and employed, and the 0.82 discount which would have applied if the Claimant was not disabled). HHJ Coulston QC stated that he was sympathetic to the Claimant’s argument that “the Ogden Tables are based on detailed actuarial evidence and should not be the subject of impressionistic ‘tinkering’ by the judge”. However, he also noted that the introduction of the Ogden Tables made it plain that they were not ‘inviolable’. The introduction states that “in many cases it will be appropriate to increase or reduce the discount in the tables to take account of the nature of a particular Claimant’s disabilities. This willingness to adjust the figures in the Ogden Tables has been apparent in other cases before the Courts. In Hunter v MOD NIQB 43 (2007) the Court found that the Claimant was disabled as a result of his knee being weak and unstable but found Catherine joined Chambers on 1st October after the successful completion of her 12-month pupillage at 9 Gough Square, where she was a pupil to Stephen Glynn, Timothy Godfrey and Aileen Downey. A graduate of the University of Edinburgh (MA 2004) and City University (GDL 2005), she is looking forward to building upon the range of experience offered by 9 Gough Square and establishing a broad practice. that disability to be comparatively modest and therefore adjusted the discount determined by the Ogden tables. The discount was not only increased to the midpoint between that applicable to the Claimant as disabled and that applicable if he was not, but was further increased to reflect a reduction factor of a 36 year old (the Claimant’s age at the date of trial) as opposed to that of a 30 year old (the Claimant’s age at the date of the accident). This adjustment was made as a result of the Court’s finding that the Claimant was medically capable of employment and that he is likely to have been able to find work before the trial if he had looked. Rather than a discount of 0.20, a discount of 0.60 was applied. In Leesmith v Evans (2008) EWHC 134 (QB) the Claimant was a lighting technician whose injuries led to an amputation of his left leg and reduced grip in his dominant hand. His residual earnings capacity discount rate was also varied from 0.54 to 0.60 in consideration of the Defendant’s submissions that the degree of disability must be taken into account and that some degree of disability had already been accounted for in the determination of the post-injury multiplicand. In Hopkinson v MOD & VT Services Limited (2008) EWHC 699 (QB) the reduction factor for the non-disabled multiplier was varied because the Court found that the Claimant’s good work history implied that 4 View our news online at www.9goughsquare.co.uk http://www.9goughsquare.co.uk
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