This recent decision from the Court of Appeal handed down on 26th August 2021, affirms the judgment given at the original assessment of damages hearing. The decision arguably pushes at the boundaries of entitlement for dependency claims. The court also looked at the proper way to quantify a dependency which does qualify under the Act. As a Court of Appeal decision it is, of course, binding on lower courts.
Because of new evidence, heard during the appeal, concerning changes in the Respondent’s domestic position which called into question the level of award originally made at the assessment hearing, the claim has been remitted to the trial judge for the dependency award to be re-evaluated.
Background
The Respondent’s husband died in January 2019 aged 55 of mesothelioma contracted following exposure to asbestos at work. His widow brought a claim under the Law Reform (Miscellaneous Provisions) Act 1934 and the Act. Liability and causation were agreed in March 2019. At the assessment of damages hearing the judge awarded a total including interest of £928,827.22.
The Respondent was working as a specialist paediatric diabetes nurse. The deceased was a builder. They did not have children of their own but decided to foster a brother and sister in 2015. The placements were made permanent in 2018. The deceased carried out the childcare and domestic duties. After her husband died the Respondent carried on as the sole carer.
Assessment of Damages hearing
The judge had to determine two issues:
- The valuation of the Respondent’s dependency on the deceased for his staying at home to provide childcare and domestic services; and
- The valuation of the Respondent’s dependency upon the deceased for other services.
The judge found that the dependency was the Respondent’s rather than the children’s. When the deceased became ill his wife stepped in to become the primary carer. The children themselves had suffered no loss as, in effect, one foster carer had replaced another. In fact the
Respondent was dependent on her husband as principal carer for the children which allowed her to pursue her career in the knowledge that the children would be cared for. This being the case the judge found that the dependency was recoverable in law because the Respondent had a “reasonable expectation of pecuniary advantage” i.e. the money she would have earned at work as the result of her husband being present to look after the children.
The appropriate measure of the dependency was not the Respondent’s loss of earnings and pension as this was not covered by s3(1) of the Act1. The correct approach was to value the services the Respondent had lost as a result of the husband’s death rather than the services she was presently providing.
The grounds for appeal
The Appellant sought permission to appeal on the following grounds:
- The award of £585,904 for the deceased’s child care and domestic services was not open to be made as a loss proportioned to any injury suffered by the Respondent;
- Alternatively, the Respondent’s loss in replacing the deceased’s child care services can only be assessed taking account of the allowance the Respondent receives for doing so;
- The dependency should not have been assessed on a full commercial cost basis as the costs would never in reality be incurred by the Respondent; and
- The award in relation to future loss can be seen to have been wrong in the light of events since the trial because the children are no longer in the Respondent’s
N.B. The original fourth ground was not allowed to proceed by the judge hearing the Appellant’s application for permission to appeal. A new fifth ground was added following a further application by the Appellant in October 2020. Grounds 1, 2, 3 and 5 proceeded to appeal therefore.
At the appeal the fifth ground was dealt with first with the consent of the parties.
Ground 1
The Appellant argued that the true nature of the deceased’s services was for their foster- children. They are the ones who were deprived of the deceased’s services, rather than his wife. Foster-children are not included in the list of eligible dependants set out in s1(3) of the Act. It was not open to the court to try to bypass this fact by, in effect, inserting a valid dependency claim where not existed in reality.
The Respondent sustained a loss from her inability to work but that was not recoverable under the Act. The Appellant also argued that the foster-care was a business rather than family arrangement.
The Court held that the judge’s findings were based on the evidence available and were not open to challenge in the appeal. The reality was that the Respondent lost her career as the result of her husband’s death and her loss of his services. The fact that the children also benefitted from the deceased’s care did not militate against the Respondent’s claim. The decision to foster was at the core of the husband/wife relationship and not incidental to it. The Respondent was entitled to claim the cost of securing the childcare services to place her in the position she had been in before her husband’s death.
Ground 2
The Appellant’s case under this ground was, in essence, that the Respondent had suffered no loss as she took over care of the children and continued to be paid the carer’s allowance by the council.
The Court disagreed and said that the Respondent had the benefit of the allowance payment before her husband’s death. After his death she still had the payments but had lost the benefit of the deceased’s services. The fact of the payments did not affect the Respondent’s loss of dependency on her husband’s services.
Ground 3
As the Respondent was accepted to be the person who would care for the children, the judge had failed to look at the reality of the situation and not have costed the care on a commercial rate basis.
The Court again disagreed. It is the value of the lost services which requires compensation not the value of how the Respondent was managing after the death. The judge was entitled to value care on the cost of employing someone to provide it on a commercial basis rather than a friend or relative providing it gratuitously. There was no need to make a 25% deduction. The commercial rate was appropriate in the circumstances. The decision being based on a fact- specific assessment by the judge, he was entitled to make the decision he did.
Grounds 1 to 3 of the appeal were dismissed; ground 5 was allowed.
Ground 5
The Appellant adduced evidence to the effect that the children were no longer in the Respondent’s care. They had been removed in May 2020 by the local authority and not returned. This was not disputed, although the Respondent had complained to the council which was investigating.
The Court accepted, as Smith LJ said in Welsh Ambulance Services NHS Trust and another v Jennifer Mary Williams [2008] EWCA Civ 81, that the dependency is fixed at the moment of death and the only relevant post-death events are those which affect the dependency. It found the new evidence directly relevant to the dependency: as the children were no longer in the Respondent’s care the dependency could not be said to be continuing.
Although a new point should only be allowed in exceptional circumstances (Jones v MBNA International Bank [2000] EWCA Civ 514), since the judge made his findings at the assessment hearing the evidence had changed and this could not have been foreseen. Out of the £928,857 awarded to the Respondent, £666,181 was awarded for the childcare/household duties of the deceased. The only reasonable step was to remit this matter to the trial judge to allow the dependency to be re-evaluated, unless the parties could agree.
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