Prigmore v Welbourne

In a fatal-accident dependency claim, the choice between a multiplier calculated from death or trial is a question of legal principle, not one for actuarial evidence. An actuary may assist with numerical calculation only after the applicable principle is fixed. The Ogden Tables ordinarily provide a simple and economical calculation. Actuarial evidence is exceptional and is justified where precision is critical, such as a very large claim with an established multiplicand. A substantial claim with disputed multiplicand and duration of dependency does not meet that threshold. The status of a dependant as a patient and the involvement of the Court of Protection do not, without more, justify a joint expert. An appellate court may intervene where case-management discretion was exercised on an erroneous basis and may then re-exercise it.

Mrs Anne Prigmore died after a road traffic accident, leaving dependants including a disabled daughter who required lifelong care. Her personal representative brought a dependency claim in which the parties disputed both the multiplicand for care services and the period over which those services would have continued.

At a case management conference, District Judge Young ordered that actuarial evidence on the calculation of multipliers should be provided by a single joint expert. The defendant appealed, contending that actuarial evidence could not resolve the legal issue concerning the starting date for the multiplier and was unnecessary for the remaining calculation. The central issue was whether the discretion to order the report had been properly exercised.

The appeal was allowed and the order for a single joint actuarial expert was rescinded.

1. Appellate review. A case-management decision involves the exercise of discretion. An appellate court should intervene only where the decision was wrong because the discretion was exercised wrongly, including where the decision-maker exceeded the generous ambit within which reasonable disagreement is possible. The error in this case justified appellate intervention: the District Judge had not sufficiently distinguished the legal question of principle from the factual and numerical question of calculation.
2. Actuarial evidence. Whether a multiplier is calculated from the date of death or the date of trial is a question of legal principle. Actuarial evidence is irrelevant and inadmissible for deciding that issue. It may assist only with the numerical calculation after the applicable principle has been established. The principles in Cookson v Knowles [1979] AC 556 therefore did not require actuarial evidence.
3. Court of Protection. The involvement of the Court of Protection, and the fact that a dependant is a patient, cannot by themselves justify instructing an actuary. Such matters do not alter the judge’s intellectual process or make actuarial evidence relevant. In an exceptional case where the Court of Protection had refused approval to a proposed settlement, actuarial evidence might assist with calculation, but not with the legal principle. That was obiter guidance because no settlement had been disapproved here.
4. Ogden Tables. The tables are intended to provide simplicity and ease of calculation. Actuarial advice should be sought only where accuracy in the multiplier is of critical importance, for example in a very large claim with an unambiguously established multiplicand. This was a substantial but not very large claim, and the multiplicand and period of dependency remained disputed. Those issues would affect the compensation more than precise multiplier calculation, so a joint actuarial report was unnecessary.
5. The discretion was re-exercised by the appellate court after full argument. The defendant was entitled to his costs, subject to agreement or assessment.

• District Judge Young, Sheffield District Registry: On 12 August 2003, gave general directions and ordered that actuarial evidence on multiplier calculations be provided by a single joint expert.
• Court of Appeal (Civil Division): Allowed the defendant’s appeal, held that the discretion had been wrongly exercised, rescinded the order and directed that the defendant should recover his costs subject to agreement or assessment.