Hello and welcome to this webinar on fatal cases. I've called it preparing the calculation on what I wanted to do was take a look at how we put together a calculation in a fatal claim following the case off now, which went to the Supreme Court in 2016. So what? We're going to take a look at us? We'll take a look at the calculation, the losses, if you like from the date off, the trial will look at how we use the organ tables toe work out those losses on. We will take a look at putting together actually the whole calculation from the date off death, if you like, all the way up until, in the case off the services claim through the deceased look likely a date of death. Um, so we'll put the whole thing together. We'll do. We'll have a look at worked. Example on. We'll also take a look at sexually four off the Fatal Accidents Act, which talks a bit about deals really with some of the benefits that might be coming into the estate to the dependence. So we'll look at effectively benefits to the dependence. What's happened after the death. What money has come in to the dependence after the death? And what does the act say about the extent to which those sums are deductible? That could be death in service benefits? It could be insurance policy, payout, all sorts of possibilities. We know, of course, that when there's Bean a fatal accident, that there are two bases really bringing the claim. One on behalf of the estate of the deceased statement, of course, is the Lord for Miscellaneous Provisions Act 1934. Claim on the other is for Under the Fatal Accidents Act 1976 on. That's for the benefits of the dependence of those who can show that they had an expectation of financial benefit from the deceased Andi, also those entitled to a bereavement award. Some controversy, of course, about those two categories because Nautile those who would qualify as coming in the list of dependence also qualify for a bereavement award has been a matter of some challenge in courts recently. You notable example being cohabit teas, which could be with two years cohabit t status up up dependent, but not someone in talking to receive our bereavement award, and we know that those acts had amendments pursuant to the Administration of Justice Act 1982. However, having said that, we know. Also, there's a lot of controversy about the the dating nature of you, like of the acts, some amendments in 2000 for with Civil Partnership Act, but very much the act lacking behind the way modern life works. Really. Im three possible heads of damage under the Fatal Accidents Act dependency claim for the financial losses suffered by the dependent of the Deceased Bereavement Award on a claim for funeral expenses If paid by the defendant, we know that the claimant has to doom or than prove they were dependent under the statutory definition. If you like off dependent, we know that has to be a reasonable likelihood that the claimant has or will suffer some financial loss as a result off the death off the deceased. So we know that that's a necessary part. The claim on also what will look at is the possibility that the dependence will argue that they had a claim for their reliance. If you like their dependency on services that the deceased would have provided, that could be all sorts of things D. I. Y. Services. Childcare will give some examples later, but the possibility they have a claim in respect of their sort of reliance, if you like on those tasks done by the deceased prior to the day, the level of dependency, as we know is subject to a formula on that formula is well set out a long time ago. Actually, in 1984 in the case of Harris and Empress Motors on, we remind ourselves that for a family unit, husband and wife, the assumption within Harris is that in that unit, just husband and wife probably are. Each individual gets to spend about 33% of the family income on themselves alone. Therefore, starting point with a proper partnership. If you like husband wife is that is a 66% dependency. Once one of the partners has died, that's the baseline. By the same token, it's accepted that a family unit with Children means that probably individuals get to spend Lessel themselves. Therefore, the dependency and a family unit with Children would be off the order off 75% with course 25% being spent by the deceased on themselves. on. If you like their own needs now, we should remember, should be clear, really, that this is a starting point. It's a starting point because, of course, there may be differences. It may be argued that the disease is somebody who perhaps would have spent rather mawr on themselves than the average individual. Perhaps they had a very expensive hobby, um, cutting vintage cars or airplanes, something of that kind on. It wouldn't be a particular surprise if you're acting for the claimant that the defendant might run an argument off that kind of his evidence to support it. By the same token, the claimant might argue. Well, actually, the deceased was someone who spent rather less on themselves. Perhaps you know, somebody who spent a lot of time with their family spent large sums on their family and family living on again. The argument will be in those circumstances that their percentages should be different. One of the things that's key to this discussion on this webinar is the pretty size make a decision that we heard in 2000 and 16 on the case off Now on the Ministry of Justice are now. In that case, the court took the view. Supreme Court took the view many commentators argued, long overdue. This view, actually that in claims brought pursuant to the Fatal Accidents Act 1976 the correct date with which to assess the multiplier for future loss should be the date of trial and not the date of death. Now, traditionally, and indeed, if you check out the Ogden tables prior to this decision, the court has followed the opposite arrangement. So the traditional way off working out the loss was to actually assess the mall supplier at the date of death. Now there's a a bill in problem with this arm and an unfinished at many claimants have argued on that sees that well, hang on a minute. We're setting the mold supply at the date of death if there's a gap, which it will be some kind between the date of death on the day of trial. In theory, some of that multiplier, if you like, will have been used up by the time we get to trial. And indeed, you know, you may remember when you first started doing with fatal claims, the real key issue was that get on with its quickly as possible. Have a shorter gap, if you like, between the date of death and the date of trial. Because otherwise the climate with claimants will be disadvantaged. Having, if you like, for want of a better term used up the multiply by the time the trial actually happened. Now, that method, if you like of calculation, goes back to a case called Cooks and a Knowles in the late seventies actually on. In that case, the core follow the approach of setting the multiply at the date off death, but on course have followed that ever since. You know, as I say, it led to money many injustices. Now a big change in our is the fairway. The proper way to do it is to assess the multiplier for future loss at the date of trial. Much fairer because of the date of trial. Of course, the future still to come. It seems reasonable that you set a multiplier at that date on. Don't artificially set one earlier on. Find that some of its bean, if you like, used up by the time you get to trial. So now claims fatal claims calculated in much the same way actually is conventional person injury Keynes multiplier is calculated from the date of trial. Now that's gonna make and does make Ah, big difference to the quantum in most fatal accident schedules on this particular issue was considered to be so important that it was a one sided leap frog appeal to the Supreme Court on frankly, very little resistance, to be honest, was mounted by the defendants. The Supreme Court said, If it's now so obvious, if this is so clear, what should happen? Why did the House of Lords reach a different conclusion all those years ago? The short answer. Those cases were decided in a different era when the calculation of damages for P I and death was nothing like a sophisticated as it is now. And indeed, you know, you remember the date of the case that we talked about Cooks in the Noles actually predated the often tables in that era. The call actively discouraged the use off actuarial tables to try and calculate multiplies. So the area is very, very different Now we need, of course, to talk about multiplies on. We need to talk about the multiplier as a tool. If you like for discounting post trial loss on one of the issues that arises if you like. If you set the multiply at the date of trial is that if you're the defendant, one of your arguments might be, well, hang on a minute. That's not right, because how can we discount if you like the prospect off the deceased, never having lived until the date trial, everything from the date death, of course, is all possibilities. How can we take into account the risk if you like, that, the deceased may not have lived until the date of trial. Now the answer that is relatively simple really announced. That is what It's fine because we got the tables. And indeed, Table E, for example, is you've got on your slide actually looks at the possibility off, Let's say, discounting the multiplier to take into account the fact that the claimant may know I have lived until the date of trial. There is a way of allowing for that one of the things we should talk about in terms of the of the Oakton tables, and I know you know your your file of often tables as mine is bulging, really, because of course we have. The supplementary tables came out when the discount rate changed to minus 9.75% in March of 2017. So we we got it to thoughts that sets of tables to come through with anyway. But one of the important things is in future. Practitioners no longer need to wrestle with Section D off the explanatory notes to the often tables in deciding whether to drop the schedule in accordance with the current approach or the actuarially recommended approach or the alternative approach. Now there is just one approach. The actuarially recommended approach. That's the correct one. That's the only one we have to worry about in a sense, useful, I think, in your sets of tables to just cross the others out because the only one that matters has given you a template off. How to put together the calculation is the actuarially recommended approach. The others are no longer relevant on that applies to all fatal cases that you will be dealing with. Let's take a bit of a look at a wept example, because I think it's probably the best way to try and look at how the new case makes us adjust if you like the way in which we put together the calculation. And on this first slide, what I've tried to do is give you some. Give us some information, really about the deceased on the kinds of pieces of information that are vital and that we need on one of those pieces of information we know because we know the Ogden tables. Except that it's an important issue is the educational status if you like the educational level reached by the deceased. Now we know that in the tables when working up a multiplier, I'm working out contingencies that one of the things that's really, really important is someone's educational status. We also know another thing that's really important is to decide whether somebody on I've said in my slide has disabilities. Actually, of course, the matter is, are they disabled within the meaning off the Equality Act is, Is that the position, or were they disabled? I should say, in the case of the deceased, before the excellent or not for their death will note, and that's an important factor on also whether or not that person was in employment prior to their death we know those are important factors because government actuaries a statistics tell us those are important factors. So what we know is Russell died after an accident. He leaves his financially dependent wife, Geraldine. She's aged 33. Russell was 43 when he died, and we know he was educated to a level, Stern said. He had three A Levels is employed as a financial adviser, and we know his net salary was 55,500. No disabilities, married for eight years. Relationships stable plan to retire. Another piece of important information. We need to know what tables to use, so we need to ask this question. When was the deceased planning to retire when he was 65? On the evidence is that we know it was 65 because he wanted to spend more time playing golf after his retirement again. All important information we need to collect from in this particular case is widow so that we know how to use the tables we're going to assume, because to pull off the calculation, it all we need to make an assumption as to what date the trial will take place in relation to the death on. We've used three years, so we've said Let's assume the trial will take place three years after the accident. On that there's no financial dependency after the age of 65 on to keep this one simple so we can see how the calculation goes together. No services dependency. There's no argument that the widow was dependent on Russell for services you might provided. That could have been D I. Y. It could have been Don't walking. It could have been childcare. We're assuming Not so we can just look purely at the calculation in relation to his earnings and that that's what we're going to do. We're going to take a look some of the assumptions that we're going to make right now. Let's take a look at some off the assumptions that we've made in relation to the figures on you know, we said earlier that the whilst the Harrison impressed Motors template, Let's call it that is not something we have to slavishly follow. In this particular case, we've made an assumption that Russell is only with his wife. There aren't any Children, and therefore we've taken the Harrison Impress Motors, third off his earnings to represent the money he would have spent on himself. We said his income 55,500 on that's deducted for his own living expenses, using, as we said, the actuarially recommended approach. So that's the template in the Ogden tables that we need use will forget all the others. Just the actuarially recommended approach. The following facts become important. 43 at the date of death R 46 at the dates off the trial, which we assumed a three years hence are dependent Female agent Date of death 33 are Aged day trial 36 We said we'd allowed a planned retirement age of 65 we've assumed, as I say, that three years until the trial will take place now. The first part of our calculation is to calculate damages for the period from the fatal accident to the date of trial, and we've said that that assumption has been made, but he is actually a three year period. What we need to work out is the factor if you like. We talked about this earlier for possible early death before the date of trial. One of the problems from the defendant camp about this approach than our approach is. Well, how do we allow for the fact that we don't know if the deceased would have survived until the date of the triumphs, and we need some method to take into account the contingency that he wouldn't have done? We got table E for that on table, Lee says, for a male aged 43 at the date of death, on a period from the accident to trial three years that what we need to do is we need to look at the figures in the table. And if we look, we've got a slight problem here because we know we've got a 43 year old male. Now the table doesn't give us the figure for a 43 year old male. What it does do is it gives us a figure for a 40 year old male on, gives us a figure for a 50 year old male on. You'll see that the contingency amount for a 40 year old is one on for 50 year old is 500.99 now, a couple of options here. I guess we could argue. Well, okay. Why don't we just add those two figures together and divide by two. That will give us an average. Surely that's inappropriate. We're working out what the figure all to pay, Strictly speaking, because Mr Russell was nearer to 40 than he was 2 50 that wouldn't be quite accurate on what we need to do is we need to interpret late between the two figures in the table. So inter plate between the age of 40 with a figure of one and 50 with a figure of 500.99 now, officer out on the slide The calculation, the method of putting together this calculation so we can interplay between those two figures on what you'll see is that pretty much the figure that we get 20.997 does in fact, fall somewhere between the two numbers. And indeed, let's not do it. But if we added together and divided by two, we come up with a number no, very different. Actually, now that's the purpose of this part of the calculation. What we've got now is a factor by which we need to take into account the possibility off early death off the disease, and we know because we looked at this earlier. But what we're assuming is we're assuming a multiple kind of £37,000 a year on. That's because we've taken off 1/3 of his net earnings for his own spending Allah theme. Harrison Empress Motors, If you like template. So let's take a look at where that leaves us. Step three pretrial damages. Okay, three times 30.997 Remember we said we had three years times 37. That gives us a loss of £110,667 in that period between the date of death to the day of trial. That multiplier, if you like, after any application of discount for early death of the deceased before the trial, even of the accident not taken place has to be applied to that multiple can that we've already got the 37,000 on. Then what we need to do in step four is we need to work out the interest if you like on that song. Because, of course, that Los has already been suffered and we're entitled to interest on that. Okay, So damages from the day trial to the dates off, retirement will come to that shortly. But let's just finish our our interest calculation interest half rate 0.25% from the date of death to the date of trial. That's three years at 30.25%. Let's take three years. That backpack there's is no 30.75% Okay, so interest, then on £110,667 is nor 0.75%. That's £830. Consequently, total pretrial damages, including interest 110,667 plus the interest that we calculated 830 brings us to 100 and 11 497 fails and pounds. That's the loss from the date of death to the day of trial, using our assumption of a three year gap between those two things. That's the first on relatively easy part is made of our calculation already done that it's easy to calculate what the number will be from the day of death to the date of trial. Our next drop, if you like, is to get a figure for the date of trial to the date off. Retirements on that assessment off that multiply isn't got involved. The following steps and we'll work through these in a moment. What's the expected period from the date of trial, which the disease would have been able to provide the dependency. So how long would Russell have been able to provide that dependency? Look at the period for which the dependent would have been able to receive the dependency. Remember, his widow is younger than Russell. Take the lesser off the two periods. Always the lesser treat the resulting period that we get as a term certain on. That's easy because organ tables and Table 28 give us multiplies for a term certain the appropriate rate of interest. Apply any adjustments for contingencies other than immortality and, if necessary, make an allowance for the risk the disease might have died anyway are before the date off his retirement. So we got another adjustment. If you like to make, let's look at that in action. Let's look at damages from the period from the date of trial. Two retirements, a step one. What's the expected period for which the deceased would have provided the dependency Table nine. We're going to look out. I'm here. We're not going to be looking at the discount rate going to look up the column. That's not percent. We're going to do that because we're just trying to find a period of time. We're not trying to discount the sum of money at this point. So table nine nor percent for males age 46. The agent, as at the date trial, gives us a multiply 18.31 That's the period over which you would have supplied if you like the dependency, the period for which the dependent that's his widow would have been able to receive it. Okay, well, this time we need to look at tables to on this is because of gender. And again, we're not trying to discount a number. So we're looking in. The North Percent column were not worrying about the discount rate at this point. So table to know percent for females aged 36 the figure we get is 53.53 we said we have to take the lesser off those two periods, always, in which case it's 18.31 In other words, that's the period over which Russell would have been able to provide the dependency. That's what the tables say is the period of time you would have been able to provide the dependency up until his retirement age. The tables calculate if you like the appropriate figure for a man of his age on, We know we're taking the lesser of those two periods. Now it's a step for that. We for the first time, I get to use the discount rate. So at last we get to use the discount rate. Now we know now we've got a term certain. We know that we've been told the term over which Russell will be providing that dependency is 18.31 years now, minus 0.7% 75% sorry rate of return. That's table 28 cause that's the term certain table. We look at the table on what we see. Okay, we see that we can't find 18.31 years because the tables will give us a figure for 18 years on. They'll give us a figure for 19 years, so we need to get our calculator out again because this time we've got to inter plate, as we did earlier with age. This time We got to inter plate between 18 years of 19 years to get the right figure for 18.31 years. Now again, 18 years, the figure is 19.28 For 19 years, it's 20.43 Again, we could just add those two figures together and divide by two. It wouldn't be quite accurate because we're slightly nearer to 18 years of 18.31 than we are 19 years. So we'll use the calculation that we use before the method through which we run that calculation. And it gives us a new figure off 19.64 that's rounded to two decimal places. That's the adjustment figure using the discount right now. Step five. We need to adjust for other things. Why? Well, we know. We said earlier that the tables see it as important What the employment status of the disease waas whether he was disabled or not. Prior to the accident on his death, on his educational status and its table A that we use them for him. He was employed G eat a column because of his educational level. Is Ages 46 the date of trial. I am, we're going to use thief 45 to 49 age range and table eggs. That's as close as we can get on. That gives us an adjustment factor off nor 490.86 So multiplier of 19.64 times the new adjustment factor nor 0.86 gives us two did to two decimal places. 16.89 Step six. Okay, with what? One more adjustment to Dio. And yes, again, we have an adjustment factor for the risks that the disease might have died anyway, aren't now, You know, we've already discounted the fact that might have died before the date of trial. We now need to discount the fact that the disease might have died anyway, sometime before the date of his retirement on its table A but will give us thes thes figure table F for males aged 43 with three years until trial again. We don't get a figure for a male aged 43. We've got one for 40 and it's 400.99 on we've got on for 50.99 are here. Both figures are the same. So at last we don't need to worry about inter plating. We don't need the calculators out. The fact of possible early death is 0.99 so multiplier of 16.89 times the factor for early death 0.99 That gives us a new multiplier off 16.72 and that's to two decimal places. That's the best we can do. And indeed, what the Ogden Tate was recommend, in fact, that we do so Step seven gives us then post trial damages. 16.72 times are Mel's black and the £37,000 that gives us 618 um, pounds and 646 £118,000.640 Step eight then is to put the total financial dependency figure together. We know we had a figure for the date up until trial on that was 110,667 plus the interest of 8 30 plus the 618,640 that we've had up until the date of retirement. It gives us a total of £730,137. Now we need to repeat you like that calculation for each dependent separately on Remember that we'll also need to work out a multiplier if we had any for lost services. Pretrial, post trial, Pope pre retirement on then as long as we can argue that the deceased would have provided those services D i y trucker, that sort of thing, using the same methodology exactly the same process toe work out what the losses would bay now. One of the things we need to take into account is that the discount rate, of course, dropped in March 2017 to minus nor 20170.75% from rate of 2.5%. Now that change came in on the 20th of March 2017. It means that future lost calculations are much more generous when using the Upton tables. And that's the case the living claimants to. So what we have to take into account is that at the moment, the discount rate is a very generous one, if you like, in terms off the the current level of the discount rate, we need to talk in a moment about the future off that because we know with the Civil Liability Act that the chances are, we're told, the chances are that that discount rate will go up, which would mean it is a much less generous basis off assessment. One of the things that we need to look at really is to try and look at the basis on which we make some of our assumptions in our fatal calculation. The reasons, for example, that were arguments. Someone in this particular case would have retired at the age of 65. So we need to focus on the strength of the evidence to establish those issues. Just finish up a couple of things we need to deal with. The Civil Liability Act does have the new method of setting the discount rate. We know because all commentators tell us that the discount rate will do nothing but go up. That is less generous to all claimants living and deceased on the deceased on it's much less generous because the discount rate will make a difference with the amounts that could be recovered into the future. What it does mean is, if you're putting together a calculation of the type that we've just been talking about getting on with its quickly as you can on negotiating with your opponent as soon as you can. Really important, because it will mean significant less sums being awarded to dependence on to live in claimants. Once that discount rate than the new as we expect it to bay, Higher rate comes in. I hope that's been useful. Andi, thank you very much for listening.
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