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Addressing the practical reality? (Part 2)

  • Legal Development 26 August 2021 26 August 2021
  • UK & Europe

  • Insurance & Reinsurance


Today’s judgment is the second in as many months, following on from Rix v Paramount Shopfitting Co. Ltd  in which the Court of Appeal has considered the award to the dependents under section 3(1) of the Fatal Accidents Act 1976 of “such damages … as are proportioned to the injury resulting from the death”.   The Court heard the employer’s appeal in respect of the High Court's assessment of damages on 6 July 2021.  

The facts of the case

The late Mr Witham contracted mesothelioma from asbestos exposure, including in the course of his employment with the defendant. He sadly died on 10 January 2019, aged 55, leaving the claimant (his widow) with sole responsibility for two foster children that had been placed with them by Oxfordshire County Council under a ‘foster plus’ agreement since 2015.  Both children suffered from behavioural disorders.

Following an assessment of damages hearing that took place during November and December 2019, Anthony Metzer QC (sitting as a Deputy High Court Judge) accepted that the foster care arrangements would have continued until 2029 and assessed the claimant's damages in the gross sum of £928,827.22.  The defendant appealed in respect of the bulk of this award, seeking to set aside the sums awarded in respect of the claimant's alleged loss of dependency upon the deceased's childcare and household/domestic services (£666,181) and in respect of loss of dependency upon the deceased's other services (£99,651.90) and substitute a sum of £63,882.

The grounds of appeal

There were initially four grounds of appeal pursued, but permission was refused on the last of these.  However, the defendant was later granted permission to add a fifth ground of appeal in light of evidence that the council had removed the foster children from the claimant's care in May 2020.

The amended grounds of appeal to be dealt with by the Court of Appeal were:

  1. the claimant was not entitled to an award in respect of her purported loss of dependency upon the deceased's childcare and domestic services as this was not a loss suffered by the claimant herself;
  2. alternatively, the fostering allowance and other benefits received by the claimant should be taken into account in this respect;
  3. it was in any event wrong to assess the value of the dependency by reference to the full commercial cost; and
  4. the award in relation to the future loss of services dependency could now be seen to be erroneous in light of the foster children no longer being in the claimant's care. 

The decision

Ground five was agreed to be addressed in advance of the other grounds.  The claimant sought to object to the admission of the evidence that the foster children were no longer in the claimant’s care, relying upon both the general principle of the finality of litigation and the failure on the part of the defendant to challenge the length of the dependency at the hearing. 

The court accepted the need for finality, except in exceptional cases. The new evidence was viewed as directly relevant to the continuation of the dependency and resulted in a fundamental change in the ‘factual matrix.’  A refusal to admit the new evidence “would affront common sense, or a sense of justice."  

As regards the claimant’s argument that had the defendant challenged the period contended for, she could have relied upon the judge having taken into account the prospect of the fostering arrangements ending earlier than intended, the court accepted the defendant's point that there was no basis for challenging the period in light of the evidence. The Court recognised that this was not an area of uncertainty at trial and what had subsequently occurred was entirely unforeseen. The new evidence was admitted and this aspect was remitted to the trial judge for re-evaluation. 

Grounds one to three were unanimously dismissed.

In relation to ground one, the defendant’s position was that the loss was in fact to the foster children, who were agreed as not qualifying dependents. The Court of Appeal highlighted that the assessment of the dependency is fact specific and that the reality of the claim before the judge was that the claimant lost her career in specialist nursing as she was dependent upon the deceased for taking the role of househusband and principal carer for the children. On the basis that the decision to foster was found not to be "incidental" to the husband/wife relationship, the claimant could legitimately claim the cost of replacing the services which the deceased provided in caring for the children “to enable her to place herself in the position she was in prior to her husband’s death.”

As regards ground two, the Court indicated that before his death, the claimant and the deceased had the benefit of both the foster care payments and his services whilst after his death, she had the benefit of the former but not the latter. This payment being a constant both before and after the deceased's death accordingly did not affect her loss of dependency upon his services.

In relation to ground three, the foster plus agreement that the claimant had entered into specifically required the claimant to look after the foster children; she could not delegate these responsibilities to others, including paid carers. Nevertheless, the argument that the judge should have looked at the reality of the situation when costing care was rejected. It was found that it was open to the judge to value care not on the basis of the gratuitous replacement by a friend or relative but on the basis of the estimated cost of employing labour to replace the lost services, thus he was entitled to award the commercial rate without a deduction for gratuitous care. 

Whilst professing ‘common sense’ and ‘justice’ as regards ground five in the judgment, it is hard to see the application of these qualities elsewhere.  Frequent references to ‘the family’ in the first instance judgment betray the judge’s misreading of the position (the foster care payments received had a value of up to £60,000 per annum).  The judge and the Court of Appeal both refer to the ‘reality of the situation’.  The reality was that if the claimant had ‘lost’ a career opportunity paying up to £50,000 per year (a loss not compensable under the Act), this had been replaced by a position paying her a greater amount.  Even if the claimant could have claimed loss of earnings from her nursing career, it is hard to see how compensation for this purported loss could be sensibly measured by an award for loss of ‘childcare’ dependency. Again, the reality was that the claimant was specifically forbidden from bringing in paid carers, so it is difficult to understand how damages “proportioned to the injury could be based upon commercial care rates, with no deduction for tax and national insurance that will never be payable, including add-ons such as 58 weeks’ pay (to allow for carers’ holidays or illness), employers’ NI contributions and carers’ expenses, and with no allowance for the respite care available

What this decision means for you

These cases are fact-sensitive, allowing first instance judges a great deal of discretion in terms of assessing damages. However this decision, along with those in other cases, including Rix and Welsh Ambulance Services v Williams [2008], appears to indicate that the Court of Appeal has little interest in overturning lower court judgments about dependency awards, however much those might arguably offend against section 3 of the Act.

The Supreme Court does not appear quite so approving of developments in this area (see for example the comments of Lord Sumption in Cox -v- Ergo Versicherung AG [2014]).  It is understood that Rix might be progressing to the Supreme Court which, in the absence of intervention by Parliament, represents the best hope for a return to ‘common sense’ in respect of fatal accidents damages. 

Simon Morrow represented the defendant in this case.

*This content was written by BLM prior to its merger with Clyde & Co*


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