Personal Injury Brief market insights - November 2020

A summary of key developments including Ogden 8, bereavement damages for cohabitees, an update on consultation on the personal injury discount rate in Ireland and Northern Ireland, and the Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill.

Ogden 8: an occasion for optimism?

The Seventh Edition of the Ogden Tables was published on 1 August 2011. Much has changed in the intervening nine years as the Explanatory Notes to the Eighth Edition make clear, not least Brexit, a global pandemic and gradually declining improvements in life expectancy.

For defendants, insurers and indemnifiers the changes in the Tables themselves are generally helpful. The Tables have no retrospective effect but the new, reduced, multipliers should be adopted on all existing claims. Whilst the changes are modest, the saving could be noticeable in claims with significant multiplicands across various heads of loss and the reduced multipliers are likely to strengthen existing offers. Compensators will no doubt revisit some reserves on a case-specific basis and may wish to sense-check existing offers to ensure overcompensation is avoided.

Contacts: Mark Burton, Stephen Foster and Andrew Purdie

Related item: Ogden 8: an occasion for optimism?

Fatal Accidents Act 1976 (Remedial) Order 2020: bereavement damages for cohabitees

The Fatal Accidents Act 1976 (Remedial) Order 2020 came into force on 6 October 2020, enabling cohabiting couples to claim bereavement damages if the surviving party had lived together with the deceased for at least two years prior to the death. This brings cohabitees in line with couples who are married or are civil partners (The Fatal Accidents Act 1976 already allowed for cohabitees to claim for dependency).

This legislative change follows the 2017 case of Jacqueline Smith v Lancashire Teaching Hospital NHS Foundation Trust and Others in which the Court of Appeal declared that the exclusion of a deceased’s cohabiting partner from the entitlement to bereavement damages under section 1A of The Fatal Accident Act 1976 was contrary to the European Convention of Human Rights.

The bereavement award under the Fatal Accidents Act increased to £15,120 for deaths occurring on or after 1 May 2020.

Contact: Robert Corrigan

A double whammy: discount rate consultations in Northern Ireland and Republic of Ireland close

The discount rate consultations in Northern Ireland and in the Republic of Ireland closed on 14 August and 31 August, respectively, with the outcome of both awaited.

The rate in Northern Ireland is currently 2.5%, although earlier this year the Department of Justice mooted a radical change to -1.75%. In both our responses, we have called for a mechanism that reflects the impact on all interested parties and reflects what injured people actually do with their compensation in real life.

On 22 October representatives of the Department of Justice appeared before the Justice Committee at Stormont reporting that the discount rate will remain at 2.5% pending the passing of a Bill which is expected to provide a new legal framework based on the Scottish model.

Contacts: Amanda Wylie and Joanne O’Sullivan

Related items:

Redress Scotland: Survivors Bill published

On 13 August the Scottish Government published a bill for a statutory redress scheme for survivors of in-care child abuse. The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill contains a number of key features, which include the creation of a new independent organisation (Redress Scotland) to oversee the scheme, eligibility criteria and the form of payments. The Bill also allows for the scheme to offer non-financial aspects of redress, including emotional and practical support. All claims must be submitted to Redress Scotland within five years of the establishment of the organisation.

The Bill is expected to pass into law in the first half of 2021 to allow the proposed scheme to be implemented shortly thereafter.

Contacts: Rory Jackson, Helen Snowball, Louise Bedford and Kathryn Oldfield

Related item: The Scottish Redress for Survivors Bill

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