ACTUARIAL ASSESSMENT OF DAMAGES: THE THALIDOMIDE CASE—II
| Date | 01 May 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01332.x |
| Published date | 01 May 1972 |
| Author | J. H. Prevett |
ACTUARIAL ASSESSMENT
OF
DAMAGES
:
THE
THALIDOMIDE CASE-I1
(Continued
from
p.
155)
THE
CASE
FOR
REFORM
IT
is proposed in the concluding sections of this part of the article
to consider a number of proposals that have been made in recent
years for changes in practice
or
law reform with the object of
achieving a wider use of actuarial assistance in the assessment of
damages.
It
should be borne in mind here that we are not
concerned only with those cases decided by the courts (estimated at
less than
5
per cent. of the total) but also with those settled by
agreement.
If
the failure to employ actuarial methods has had the
result of damages awards being arbitrary, inconsistent, and generally
too low, then this is likely to be even more true in cases settled by
negotiation than of those submitted to the jurisdiction
of
the courts.
A
number
of
possible reforms, all of which would require
legislation, are considered below
:
(a)
Periodical payments
It
has been suggested that in some
or
even all cases where
damages fall to be assessed for continuing pecuniary loss, the court
should award an annuity rather than a lump sum. This proposition
is perhaps
‘(
out of order
”
in the context of this article since
if
adopted
it
would largely remove the need for actuarial assistance in
the assessment
of
damages. There is nevertheless, in the writer’s
opinion,
a
strong case on general grounds for the payment of
damages as a periodic income rather than as a capital sum.
If
such payments were subject to regular review, adjustments could
be made to allow for changes in the circumstances of the injured
party, changes in taxation and changes in the level
of
wages
or
cost
of living.
A
powerful argument for the award of damages as
periodical payments in a fatal accident case was until recently that
in making an award to a widow it would no longer be necessary
for
the judge to perform the distasteful function of assessing her
remarriage prospects on the basis of personal attractiveness, since
the periodic payments codd be adjusted
or
terminated on re-
marriage. This problem has, however, been largely removed by
the Law Reform (Miscellaneous Provisions) Act
1971
to which
reference has been made earlier in this article. William Phillips has
discussed the case for periodic payments in articles in the
Solicitors’
vor,.
35
257
2
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