The Ogden 8 my schedule

Thu, 23 Jul 2020

The Ogden 8 my schedule

Stand by your schedules and counter-schedules, dig out those old Part 36 offers and get ready to apply to increase your costs budgets; the 8^th edition of the Ogden Tables (“Ogden 8”) may impact on all three.

Life is not as good as was hoped in 2011 when the 7^th edition of the Ogden Tables was published (“Ogden 7”). The mortality figures used in Ogden 7 from 2008-based projections were more optimistic than has proven the case based on the 2018-based projections. Paragraph 9 of the Chairman’s Introduction starkly states that the difference on life expectancy for younger claimant’s is 1 year (for males) and 2 years (for females) less in Ogden 8 than in Ogden 7, or about 1-2%. For older claimants we are told the difference could be as high as 8-9%. All multipliers have changed for all ages. In short, your schedules will probably need re-drafting, counter-schedules given yet another reason to argue damages should be lower and the extra work potentially not being covered within cost budgets.

On a more helpful note, Ogden 8 includes increased guidance and examples for using the tables across the board. There are also now available on the government website the Additional Tables in Excel format https://www.gov.uk/government/publications/ogden-tables-actuarial-compensation-tables-for-injury-and-death. These should assist in particular in calculating split multipliers. Again, helpful notes on their use are provided within the Additional Tables themselves. They provide multipliers for discount rates of -0.75, -0.25 and 0.

Further practical changes include new tables for loss of earnings to ages 68 and 80 and loss of pension commencing at ages 68 and 80. That has therefore pushed back the ever important Tables 27 and 28 in Ogden 7 to Table 35 (for Discounting factors for term certain) and Table 36 (for Multipliers for pecuniary loss for term certain) in Ogden 8.

One further change needing mention is the explicit reliance on the Disability Discrimination Act 1995 definition of disability, rather than that contained in the Equality Act 2010. This is due to the data set relied upon for Tables A-D being taken from the 1998 – 2003 Labour Force Surveys, pre-dating the 2010 definition. That there have been increases in the percentage of the population self-identifying as disabled is clear, but we would argue that it is not really because the 2010 definition is substantially different, or wider, than the 1995 Act. Rather, it is more likely to be due to increased acceptance of disability combined with changes to the wording of the underlying surveys relied upon.

Judicial interpretation of the definitions would result in the majority of cases being decided the same, although changing attitudes to the issue may in any event have resulted in a broader interpretive approach to the definition developing over time, regardless of a change of wording in 2010. Certainly the 1995 Act itself was amended from 5 December 2005 to remove the requirement that a mental impairment was a “clinically well-recognised illness” before the individual could be classed as disabled. The main difference between the Acts is the inclusion of the factors, found in paragraph 4 of Schedule 1 of the 1995 and repeated in the Ogden tables, requiring a claimant to demonstrate an impact on normal day to day activities by reference to the factors on the list such as mobility, manual dexterity etc. The reality is that this was an additional linguistic hurdle, rather than creating a substantively more stringent test.

To illustrate the differences between future loss calculations with Ogden 7 and Ogden 8 data sets, let us look at some examples of typical future losses.

Let us take a female claimant, whose date of birth is 2 February 1992, who was injured on 20 October 2018 and with losses calculated at 21 July 2020.

Age at injury: 26.71
Age at date of calculation: 28.46
Retirement age: 68

The claimant’s life expectancy is standard with the current discount rate of -0.25%.

The claimant was employed at the date of the accident and is now classed as disabled, is unemployed and she has educational level of GE-A.

Then using the two data sets, let us compare four different types of future loss.

1. Earnings

Say the claimant was earning £40,000pa (gross), £30,841.92 (net) and now has a residual earning capacity of £12,500pa (gross), £12,141.92 (net).

Difference £5,937.90

2. Lifelong claim

Say the Claimant requires 4hrs/ day of care for life at an aggregate rate of £12.06, or £17,607.60pa.

Difference £36,095.58

3. Periodical loss

Say the Claimant requires a hearing aid at a cost of £1,750.00 every 5 years for life, with associated insurance costs of £150.00pa and batteries/ maintenance of £150.00pa.

Difference: £2,680.00

4. Pension
Lastly, say the claimant will sustain a pension loss from her retirement age of 68. But for the accident the claimant would have received a pension of £20,000.00 pa (gross), £18,500.00 pa (net), but this will now be reduced to £8,000.00 pa (gross and net).

Difference £22,260.00

If all those losses were present, the schedule would be £66,973.48 less under Ogden 8 than under Ogden 7. So now you can see how Ogden 8 my schedule.

Alexander Mellis View Profile

Paul Evans View Profile