Ogden Tables challenged

In an article in the New Law Journal of 3 December 2010 Brent McDonald considered the future of the Ogden Tables in the light of judicial reaction to the sixth edition. A significant change by the sixth edition was the lower residual earning capacity figures, due to higher discounts for contingencies. There has been judicial resistance to the new approach, due in part to the failure of Ogden to specify the level of disability assumed by Tables B and D. In Clarke v Maltby [2010] EWHC 1201 [QB] [2010] All ER (D) 283 (May), the judge refused to apply a Table D Ogden discount on the grounds that the claimants’ degree of disability had been fully reflected in the difference between her lost and residual earning capacity, resulting in the claimants’ damages being reduced by £122,750, reflecting the difference in the applicable discount factors of 27%. The judge in McGhee v Diageo Plc [2008] [ScotCS] CSO874 refused to apply the tables at all. This cost Mr McGhee some £182,000. The judge said he presumed the tables ‘were based on some average disability of greater severity’, use of which would produce an award which was ‘clearly excessive’. The author concluded that ‘it was ironic that multiplies were introduced to bring precision into personal injury claims. This was designed to avoid impressionistic discounting by judges which had been prevalent beforehand. That 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.’