Our latest article on prospective reform of the Fatal Accidents Act (FAA) 1976 was published in edition 302 of BC Disease News (here), after the Government revealed that it had no intention of instigating ‘major’ reform of the ‘bereavement’ damages system [beyond rectifying Sir Terence Etherton MR’s declaration, in Smith v Lancashire Teaching Hospitals NHS Foundation Trust & Ors (Rev 2)  EWCA Civ 1916] (click here for detailed case analysis) that the FAA is incompatible with the European Convention on Human Rights], nor to commence any ‘wider reform’ of the longstanding piece of primary legislation.
In light of this, it is interesting to examine the recent judgment of Witham (as Executrix of the Estate of Neil Witham, deceased) v Steve Hill Ltd  EWHC 299 (QB), in which a former employer (the defendant) contended that a recoverable dependency claim, by virtue of s.3(1) of the FAA, could not be successful if it encompassed a loss that was connected to the needs of a deceased former employee’s foster children.[i]
With liability having been established at the first case management conference (show cause hearing), quantum fell to be determined by Mr. Anothony Metzer QC (sitting as a Deputy High Court Judge), at a 2-day hearing, in November/December 2019.
The principal issue in dispute was as follows. Years prior to the deceased’s mesothelioma-related death, on 10 January 2019, aged 55, he and his spouse (the claimant) sought to adopt 2 autistic children (biological siblings) and, in compliance with their fostering agreement with the local authority (Oxfordshire County Council), the deceased ended his employment to assume the role of a carer, as his full-time occupation.
However, owing to her husband’s negligent workplace exposure to asbestos as a labourer, during the late 1990’s, the claimant, now widowed, was forced to give up her job as a specialist paediatric diabetes nurse to supplant the deceased as primary carer of her children, who were 13 and 9-years-old when the present proceedings were heard.
The deceased’s passing had ultimately resulted in loss, specifically lost care and support for the foster children. Ensuing this, the claimant had lost out on childcare, which led to the loss of her ability work and by consequence, loss of earnings.
Was the claimant eligible to recover dependency damages for this loss?
Under s.1(3) of the FAA, foster children are not defined as ‘dependants’, whereas biological children and stepchildren are.
The defendant therefore contended that the claimant was ‘dressing up’ a claim for the foster children as a claim for herself, on the basis that her pecuniary loss (of income) and the deceased’s lost services were more accurately ‘labelled’ as losses sustained by the children. By extension of this logic, there could be no dependency claim, ‘although it may be seen as harsh’, as the foster children were not dependants.
In response, the claimant asserted that the claim for recoverable dependency fell within the scope of the FAA and was not an illegitimate attempt to circumvent its literal interpretation. It was posited that the ‘interposition’ of foster children in no way precluded the Court from ‘identifying and quantifying the loss truly suffered by the Claimant’.
Persuaded by case precedent, the sitting High Court Judge found in favour of the claimant.
Dependency, according to the historic case of Pym v The Great Northern Railway Company  4 B&S 396, requires a ‘reasonable expectation of pecuniary advantage from the continuance of the life of the deceased’. Approving this decision, Lord Justice Latham, in Cape Distribution Ltd v O'Loughlin  EWCA Civ 178, went on to qualify that loss of dependency, encapsulated within the FAA, is not identified, nor calculated, by way of a ‘prescriptive method’.
Applying established dicta to the present case, Mr. Metzer QC interpreted that there must be a ‘wide gateway’ through which a dependant can ‘establish that pecuniary loss resulted from the death then that would meet the requirements of Section 3(1)’ and that each case will turn on its ‘particular factual circumstances’.
Whilst, ‘in non-legal terms’, the foster children were dependent on the deceased as beneficiaries of his care, the fact that the claimant had stepped in his shoes as carer meant that they had suffered no loss, where the claimant had:
‘… the Claimant has lost her full-time career as a result of Neil’s death. She was dependent upon him as the principal carer for A [child] and B [child] to allow her to pursue a career for the benefit of the whole family in the knowledge that their children, albeit foster children, would be properly cared for’.
An alternative analysis provided by the Judge was that the loss was effectively felt by the family as a whole (including those who are not recognised as ‘dependants’), which the Court was willing to acknowledge as compensable, in Cape.
Was the claimant’s loss ‘incidental’ to her relationship with the deceased?
The defendant’s residual contention was that the dependency claimed had been ‘simply and purely incidental’ to the relationship between the claimant and the deceased, i.e. did not stem from their relationship as husband and wife. However, this insinuation was dismissed by Mr. Metzer QC.
When applying the counterfactual, it was determined that, notwithstanding the remuneration received for their foster parenting, had the decision to foster been taken in the capacity of ‘business partners’, or with financial incentive, as opposed to being taken as a ‘loving couple’, then:
‘… they would not have decided together to foster A and B and determine that Neil [the deceased] would be the principal carer other than as part of their relationship …’
How should the approved dependency be valued?
Following Knauer v MOJ  EWHC 2553 and Daly v General Steamship Navigation  1 WLR 120, the measure of loss was deemed not to be correctly calculated by reference to the claimant’s lost earnings. Instead, the degree of loss was based on the cost of replacing the care services that the deceased would have provided, but for his death, i.e. a valuation of their services. Further, that these costs should be charged in accordance with the commercial rate, which, unlike gratuitous care services (e.g. care afforded to an injured claimant by family and friends), need not be discounted by 25%.
As such, the claimant was awarded £929,857.22 (of which £666,181 accounted for the contested head of loss), with the defendant having been refused permission to appeal. Although the full-text judgment of Witham (accessed here) was handed down in February, to-date, there has been no intimation that the defendant has re-applied for permission to bring an appeal before the Court of Appeal, despite having stated an earlier intention to do so.[ii]
[i] Steven Snowden QC and John-Paul Swoboda, ‘Sarah Witham (as Executrix of the Estate of Neil Witham, deceased) v Steve Hill Ltd. What counts as a dependency under the 1976 Act and how should you value it?’ (14 February 2020 12 King’s Bench Walk) <https://www.12kbw.co.uk/sarah-witham-as-executrix-of-the-estate-of-neil-witham-deceased-v-steve-hill-ltd-what-counts-as-a-dependency-under-the-1976-act-and-how-should-you-value-it/> accessed 10 March 2020.
[ii] Simon Morrow, ‘Witham v Steve Hill Ltd: the extent of a dependency’ (BLM) <https://sites-blm.vuturevx.com/93/2917/compose-email/witham-v-steve-hill-ltd--the-extent-of-a-dependency.asp> accessed 16 April 2020.
[iii] Dushal Mehta, ‘High Court success for foster family in mesothelioma dependency claim’ (Fieldfisher) <https://www.fieldfisher.com/en/injury-claims/case-studies/high-court-success-for-foster-family-in-mesothelio> accessed 24 April 2020.