Articles - Ogden’s end?

Personal Injury -

Date: 03 December 2010

Authors: Brent McDonald

Issue: Vol 160, Issue 7444

Categories: Features, Personal injury

Ogden 6: are the tables in tatters? Brent McDonald reports

Tables A–D of the 6th Edition of the Odgen Tables contain factors to discount awards or future loss of earnings to reflect contingencies other than mortality.

The explanatory notes to the 6th edition state that different factors should be used as the starting point in computing the residual earning capacity of those who are disabled. Tables B and D apply if the claimant is disabled, otherwise tables A and C apply. The definition of disabled is the same as that under the Disability Discrimination Act 1995. The difference between tables can be dramatic. Applying table C, an employed female of 54 with a low skill level is expected to work for 82% of her remaining career. This drops to 57% if she becomes disabled and table D is applied.

Judicial adjustment
Conner v Bradman [2007] EWHC 2789 (QB), [2007] All ER (D) 495 (Nov) was the first case on Ogden VI to reach the law reports. Despite holding that Mr Conner was disabled, his residual capacity was adjusted upwards by some 23% higher than the figure put forward in table B for disabled males. The extent of the adjustment is said to have causedconsternation on the part of Dr Victoria Wass of the Cardiff’s Business School, the academic whose research gave rise the figures in tables A–D.

A recent case which considers Ogden VI is Clarke v Maltby [2010] EWHC 1201 (QB), [2010] All ER (D) 283 (May). On 25 September 2004 Mrs Clarke was a front seat passenger in a car being driven by Maltby. Clarke suffered a head injury in the accident. The central issue for Owen J to determine was the degree to which this injury would affect Clarke’s functional capacity as a solicitor.

Although Clarke made a substantial recovery from her physical injuries, her case was that she had become increasingly aware of a range of problems. These included mental fatigue, cognitive dysfunction, disinhibition, temper, impaired memory, concentration and processing as well as compromised and inappropriate speech and word finding. By the hearing, Clarke’s ongoing symptoms were entirely due to a brain injury and were unlikely to resolve.


Findings
The judge found that Clarke “will not be able to sustain the required level of performance as a solicitor” in her specialist field, and that but for the accident she would have moved to a medium sized central London or City law firm to pursue her ambitions. Future loss of earnings was based on Clarke’s expected basic income plus the lost chance of higher earnings calculated by reference to the % chance of attaining the higher levels of success.

Notwithstanding his complete acceptance of Clarke’s medical and employment evidence, Owen J simply held without further elaboration that “I am not per
suaded that it is appropriate to apply a table D Ogden discount. Her degree of disability has been fully reflected in the difference between her lost and residual earning capacity”.

Based on the figures set out in the judgment’s Appendix, this decision wiped some £122,750 off Clarke’s claim, reflecting the difference in the applicable discount factors of 27%. This can be contrasted with the result in Leesmith v Evans [2008] EWHC 134 (QB), [2008] All ER (D) 08 (Feb) where the same argument only resulted in a 6% adjustment being made to the discount factor (from 0.54 to 0.6).

Owen J is not alone in departing from the tables. A further example is McGhee v Diageo plc [2008] ScotCS CSOH 74 in which Lord Malcolm refused to apply the tables at all. This was also costly to Mr McGhee, as the departure from use of Ogden cost him some £182,000. Lord Malcolm stated that he presumed the tables “were based on some average disability of greater severity”, use of which would produce an award which was “clearly excessive”.

Canny claimant’s have also argued for and obtained departure from the tables. In A v Powys Health Board [2007] EWHC 2996 (QB), [2007] All ER (D) 283 (Dec) Lloyd-Jones accepted the submission made by counsel for A that her earnings but for the accident should be assessed using discount factors applicable to someone who was not disabled, contrary to the starting point suggested by the explanatory notes.

Likewise, in Hopkinson v MOD [2008] EWHC 699 (QB), [2008] All ER (D) 146 (Apr) the discount to be applied to earnings but for the accident was adjusted upwards from 0.81 to 0.9. This was based on the claimant’s strong work history prior to the accident. Similarly, in Garth v Grant and MIB [2007] All ER (D) 459 (May) it was accepted that the claimant’s earnings but for the accident should be assessed using table C (non-disabled females), notwithstanding the problems Ms Garth accepted that she had with severe obesity. Her evidence that it had never affected her working capacity persuaded the judge that it would be wrong to make any increase in the normal discount, even though it had a significant affect on some day-to-day activities.
 

Comment
The most significant change that the 6th edition introduced was the markedly lower residual earning capacity figures it produced. Tables B and D use as a starting point significant discounts to allow for contingencies other than mortality, even in claims involving employed claimants educated to degree level (or equivalent).

If it were generally accepted that there was no need to reduce the multiplier (merely the multiplicand) where a claimant has been rendered disabled, this would undermine much of the approach set out in the 6th edition. If, as in Clarke, a discount in the order of 0.87 was applied to pre- and post-accident multipliers, any award would in fact be somewhat lower than those made under previous editions of the Ogden Tables.

Are there really claimants who meet the definition of disabled and yet face no additional disadvantage whatsoever on the labour market? Despite Clarke’s impressive list of cognitive and orthopaedic problems, that appears to have been the conclusion of the judge. Can this be right?
It is notable that departure from tables B and D has mostly been made without any proper evidence as to what the extent of the adjustment should be, or if any adjustment should be made at all.

The judgment in Clarke is symptomatic of this. It might or might not have been just to alter the discount factor, perhaps dramatically. However, if this is to be done then surely it should be carried out with more precision than (say) splitting the difference in Conner?

A key part of the problem is that the tables’ “starting point” is not set out. Save for some clues in the explanatory notes as to what kind of problems would result in a claimant meeting the definition of disabled, there is no indication of just how disabled a claimant should be to warrant the factors in tables B and D being applied without any adjustment.

Given the dramatic increase in the discount when compared previous editions of the Odgen Tables, it was inevitable that judges were going to assume that a relatively severe level of disability must have been in mind when tables B and C were compiled. McGhee says as much in terms.

Assessments of disability using percentages have for many years been a feature of the social security system. It is tentatively suggested that one possible solution might be to have expert analysis of the degree of limitation in day-to-day function in the workplace. These could then be factored into the Ogden VI calculation.

Ironic
It is ironic that multipliers were introduced to bring precision into personal injury claims. This was designed to avoid impressionistic discounting by judges which had been prevalent beforehand. This is, however, precisely the situation we are now in. Perhaps it is no wonder then that most parties, claimants and defendants, prefer to resolve cases at joint settlement meetings, where they can better predict the outcome.
 
Brent McDonald, barrister, Old Square Chambers
E-mail: mcdonald@oldsquare.co.uk
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