The latest Ogden tables may well be a stopping-off point to the major changes likely to be seen in Ogden 8, but the tables themselves (and more specifically the Notes) represent a significant evolutionary change.
The multipliers have changed slightly although in even large claims the difference over the entire working life multiplier is unlikely to change by more than £1,000 compared to the OT6 multipliers.
The definition of disability is now expressly altered to that under the Equality Act 2010, a slight variant of that under the DDA. The Guidance Notes to the EA 2010 are thereby incorporated by osmosis too.
The Notes make explicit reference to two academic articles published by Dr Victoria Wass concerning the (potential) injustice with the awarding of the standard Smith & Manchester award; and the impact of ‘judicial tinkering’ with the discount factors. Dr Wass is now a member of the Ogden Working Party.
Dr Wass’s critique of the Conner v Bradman decision is unlikely to be favourite Judicial bedtime reading, but it is essential for any practitioner faced with a long-term injury claim. It is of note that the same academic article was expressly taken into account by the QBD in Sharma v Noon (2011) in considering the adjustment to be made to the discount factors.
OT7 may well herald the day in which the application of the discount factors becomes the norm and Smith & Manchester becomes the exception. Intimate familiarity with the varying (and sometimes contradictory) guidance on disability and substantial effect is essential for any credible practitioner in this area of law.
Colm Nugent appeared in the most recent High Court decision (at the time of writing) concerning the applicability of the Ogden Tables and has lectured extensively on the more detailed aspects of the use and application of the Tables and the impact of OT7.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.