Insurers take note – changes ahead for multipliers in fatal accident cases

In a previous article, we reported on the 24 February 2016 judgment of England’s Supreme Court in Knauer v Ministry of Justice [2016] UKSC 9, in which the Court ruled that the multiplier for future losses in dependency claims under the Fatal Accidents Act 1976, should be determined using the date of trial, rather than the date of death. This was a departure from the longstanding House of Lords authorities in Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 (followed in Hong Kong) which had held that such multipliers should be determined from the date of death and not trial.

On 9 May 2018, in Kan Wai Ling and Fan Mei Na, the co-administratrices of the estate of Kan Siu Hong, Deceased v Kan Chi Fai, HCPI 232/2011 (in which case, Deacons acts for the Defendant), Hong Kong’s Court of First Instance (as we anticipated) followed the Supreme Court ruling. The Honorable Mr. Justice Bharwaney held that the multiplier for future losses in dependency claims in fatal accident cases ought to be ascertained as at the date of trial rather than the date of death, so that in that case, the Court ascertained the multiplier to be adopted by having regard to the notional age of the deceased, had he lived, as at the date of the judgment.

On the issue of loss of accumulation of wealth, the Court held that where there is no established pattern of savings, but the evidence clearly shows that the deceased would likely have made some savings from his income, as in the present case, the Court adopts a savings rate of 10% of such income to assess this head of claim as a starting point.

Impact on Hong Kong Fatal Accident Claims

Going forward, subject to any appeal, the Hong Kong Courts, rather than determining multipliers for future losses in dependency claims from the date of death (as they currently do), will calculate them from the date of trial. This will result in increased damages for future losses in dependency claims under the Fatal Accidents Ordinance (Cap.22). Insurers should therefore review the sufficiency of their current reserves for such claims and also adjust any sanctioned payments upwards.