Fatal Damages Part 8: Loss of Income and Services Dependency and Bereavement Awards

INTRODUCTION

As we considered in edition 204 of BC Disease News, claims under the Fatal Accidents Act 1976 (FAA) differ from those brought under the Law Reform (Miscellaneous Provisions) Act 1934 (LRMPA), in that they must be brought by or on behalf of the deceased’s living dependants. In contrast, claims under the LRMPA are brought on behalf of the deceased’s estate.

Section 3(1) of the 1976 Act empowers the court to award ‘such damages, other than damages for bereavement…as are proportioned to the injury resulting from the death to the dependants respectively’.

A common example given of claims brought under the FAA are where a deceased husband and father provided for his wife and children and as a result of his death, the dependants (his wife and children) have lost not only the financial dependency on his wages but also any additional ‘services’, such as DIY or gardening, that the deceased may have carried out.

In this instance, the dependants can recover the financial loss by way of compensation, and also the cost of replacing the lost services. We discussed who qualifies as a dependent in edition 204 (here).

In making an award under this head of loss, the court will consider things such as, how long would the deceased have been able to provide the benefit or service, the age of the dependents – when would children have become self-supporting in any event, the size of the lost income and the level and extent of the services which the deceased provided.

We will look at all these factors in this feature but firstly, let us look at how such losses are calculated.

BACKGROUND

We have previously discussed the decision of Knauer v Ministry of Justice [2016] UKSC 9 in which the Supreme Court overturned two previous House of Lords judgments and unanimously ruled that the multipliers in assessing future damages for fatal accident claims should be calculated from the date of the trial, not the date of death.

The Supreme Court advocated the methodology provided by the Ogden Working Party and set out in the Explanatory Notes to the Ogden Tables-see the current 2017/18 edition of Facts and Figures at section A8, paragraphs 64-91 (pages 70-79) and also paragraphs 64 to 81 of the seventh edition of the Ogden Tables downloaded here. It is referred to as the ‘actuarially recommended approach’.

This new approach assesses the multiplier as at date of trial and applies discount factors to both pre-trial and post-trial losses to reflect the risk that the deceased may have died in any event and not survived to provide the dependency. These discount factors are found at Table E for pre-trial dependency and Table F for post-trial dependency.

Part of Table E is replicated below and in our example of a male aged 70 at death and a 3 year period lapsed between death and trial the discount factor is 0.97.

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The multiplier for future dependency is then assessed from date of trial and not death. That multiplier also has to be discounted by the Table F factor to reflect the risk that the deceased might have died anyway before the trial and not survived to provide any post-trial dependency.

Part of Table F is replicated below and in our example of a male aged 70 at death and a 3 year period lapsed between death and trial the discount factor is 0.93.

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Let us look at a worked example below.

Example

Let us take a male diagnosed with asbestos related mesothelioma who dies from the condition aged 70 in 2015. The medical evidence is that the deceased had a normal life expectancy and would have lived for a further 17.2 years to age 87 but for the mesothelioma

The claim is pursued by the deceased’s wife. She was aged 60 at the time death and included within the claim is a dependency claim on the deceased’s pension income he would have provided for life and dependency on the deceased’s DIY services valued at £1,500. The claimant’s life expectancy is to 88 and she would have outlived the deceased in any event. The dependency would therefore have come to an end of the deceased’s death at age 87. The trial and assessment of damages takes place 3 years after death in 2018.

So in our example the dependency is assessed as follows:

  1. PRE-TRIAL DEPENDENCY

Pension Dependency

3 years x £10,000 x 0.97 Table E discount factor = £29,100.

Services Dependency

3 years x £1,500 x Table E discount factor 0.97 = £4,365.00

Interest of £218 would be awarded on this past loss in the usual way.

  1. POST-TRIAL DEPENDENCY

Pension Dependency

Determine the multiplier from trial and not death. The deceased would have been aged 73 with a life expectancy of 14.92 years.

The Ogden Table 28 multiplier (-0.75% discount rate and with interpolation) is 15.79.

Future dependency=£10,000 x 15.79 x 0.93 Table F discount factor=£146,844.52.

Services Dependency

Ogden Table 28 multiplier for 7 years (ages 73-80) = 7.19

7.19 x £1,500 x Table F discount factor 0.93 = £10,030.05

No interest is payable on future loss.

  1. THE OVERALL CLAIM

The overall claim = (i) Pre trial dependency (+interest) + (ii) Post trial dependency=

                                    £33,465+ £218 +£156,874.57.=£190,557.57

The key dates within our example are represented in the timeline below.

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Now that we have outlined how to calculate the damages for loss of dependency on income and services, we can turn to look at the different factors the court will consider when determining how much a dependent should be awarded.

FACTORS

An example of a more unusual issue that can arise in dependency claims for loss of financial dependency and services can be seen in the case of Haxton v Philips Electronics UK Limited [2014] EWCA Civ 4. In this case, both a husband and wife developed mesothelioma as a result of being exposed to asbestos. Mr Haxton was employed as an electrician by the defendant for over forty years during which he had been exposed to asbestos and died of mesothelioma in 2009. Mrs Haxton was never employed by the defendant but her exposure was secondary through washing her husband’s asbestos contaminated work clothes. She also later developed mesothelioma in 2011 and at trial had only weeks or months to live.

Mrs Haxton, issued two separate proceedings against the defendant. One was in her capacity as widow and administratrix of the estate of her late husband for which she claimed damages under the LRMPA and the other was as a dependant under the FAA. In this claim, liability was conceded and ultimately damages were agreed with the damages for loss of dependency being based on the assumption that she had a remaining life expectancy of 0.7 years because of her illness.

Mrs Haxton  also issued proceedings in her own right, seeking damages for negligence and breach of statutory duty. Liability was again conceded and damages agreed at £310,000 except for one disputed item – the claimant argued that but for the defendant’s negligence, her life would not have been cut short and the assessment of her dependency claim in the first action would have been significantly greater and the defendant should compensate her for this loss. The value of this head of loss, which was made up from lost earnings and pension benefits, was £200,000.

Although at first instance, it was found that this head of loss was irrecoverable, the Court of Appeal disagreed. Mr Justice Elias handing down judgment at para 14 stated:

‘The Fatal Accidents Act confers a statutory right to recover for the loss of dependency and in her claim under that Act she cannot recover more than her actual loss. But I see no reason why the diminution in the value of that right resulting from the negligence of the respondent cannot be recovered as a head of loss in the claimant's personal action. This does not, in my view, involve any interference with the principles governing the payment of compensation under the legislation. They are left wholly unaffected…. It is a common law claim for damages for loss of dependency; it is a claim for diminution in the value of a valuable chose in action, a statutory right. There is nothing in the language of the Fatal Accidents Act or the authorities on that Act which suggests that there is any special attribute distinguishing this particular chose in action from any other. It follows that Ms Foster's related submission, that this is not a head of loss which ought to be recoverable in law, fails also’.

The submission made by the defendant that this head of loss was too remote was also dismissed by the Court. As such, the claimant’s appeal was allowed and the additional £200,000 was awarded.

However, in the case of Rupasinghe v West Hertfordshire Hospitals NHS Trust [2016] EWHC 2848 (QB), Mr Justice Jay rejected an attempt by the claimant to recover damages as to her future loss of earnings. The deceased was killed as a result of the defendant’s negligence and as a result his wife returned to Sri Lanka with their young children. The claimant brought a claim as the deceased’s widow under the FAA for her own loss of income and pension as a result of having to move back to Sri Lanka as a result of her husband’s death.

This was rejected by the judge who held:

‘It is axiomatic, and in any event well established by cases such as Malyon v Plummer, that a free-standing claim for loss of earnings falls outside the scope of section 3 of the Fatal Accidents Act 1976. This is because such a claim does not relate to the loss of a benefit which would have accrued to the Claimant had the Deceased survived. The Act is only concerned with losses which flow from what the Deceased did when alive: either by the making of a financial contribution to the household, or by providing childcare and similar services (capable, under the common law, of being accorded a financial value)’.

As such, the claimant’s claim was deemed to be an independent claim for loss of earnings.

Another common issue which arises in dependency claims is in relation to the ‘but for’ life expectancy of the deceased. A useful example of this can be found in Magill v Panel Systems (DB Ltd) [2017] EWHC 1517 (QB), a fatal mesothelioma claim pursued by the widow & dependent of the deceased who had been negligently exposed to asbestos by the defendant during employment and died at age 60.

The deceased did not die directly from mesothelioma but instead from a cardiac arrest, however, the claimant claimed that but for the mesothelioma the deceased would have undergone a coronary artery bypass graft which would have prevented his death from cardiac arrest. The defendant disputed this.

In short, the claimant argued that but for the mesothelioma, the deceased would have survived 19.5 years and the defendant argued that he would have survived for only about 8 years due to his pre-existing heart condition. The judge, concluded that although it was fairly optimistic, he accepted the claimant’s calculation that the claimant’s life expectancy would have been 19.5 but for the mesothelioma.

As a result, the judge then went on to consider the claimant’s claim for dependency on the deceased’s services.

The claimant made a claim for both her past and future dependency on the deceased’s services on the following basis:

As a result of her husband’s death, the claimant has required assistance with tasks such as gardening, DIY and decorating. A nominal figure of £500 per year is claimed from the date of death until trial’.

In both the claimant’s and deceased’s witness statements it was suggested that the deceased had been mowing the lawn up to his mesothelioma diagnosis and that he and the claimant were planning on doing quite a lot of decorating and DIY in their new home.

However, at trial the claimant had to concede that she was giving the deceased a lot of personal care prior to the mesothelioma diagnosis due to his pre-existing conditions and that he would have been incapable of decorating the house at that stage.

The judge therefore concluded:

Whilst I accept the deceased did mow the lawn at some point in the past I am not convinced he was doing this before his diagnosis of mesothelioma. The two questionnaires he completed in 2012 and 2014 reveal extensive disability such that the claimant was awarded a carer’s allowance…In my view these answers are not consistent with a man who is carrying out DIY decorating and gardening at home. The impression I got was that the claimant was acting as the deceased’s full time carer before the diagnosis of mesothelioma and that she carried on doing just the same afterwards, albeit with the need to devote more time to his complicated medication regime. The burden of proof is on the claimant and I am not satisfied on balance of probability that she has lost the benefit of the deceased services in any meaningful way as a consequence of his death’.

So whilst the defendant  failed to decrease the dependency on services claim by proving the deceased’s reduced life expectancy due to his pre-existing conditions, these conditions were taken into account when considering whether the deceased would have in fact have been able to carry out the services. Pre-existing medical conditions are therefore an extremely important consideration in claims for dependency on earnings and services.

CONCLUSION

Following Knauer, the multiplier in assessing future damages for fatal accident claims is calculated from the date of the trial rather than the date of death. We discussed the impact this change had on mesothelioma claims in Edition 131 (here). There we noted that whilst this new methodology would mean small increases in damages for individual claims – this may mean a more significant increase across an entire book of mesothelioma claims.

In this feature, we have also looked at some recent judicial decisions which highlight some common issues that occur in claims for dependency on income and services. Factors to look out for which may impact on the amounts recoverable include:

  • Pre-existing conditions which may reduce life expectancy-in either the deceased or the claimant;
  • Pre-existing conditions which may reduce the deceased’s ability to provide services or would have resulted in early retirement;
  • Evidence that dependants, particularly children, would have become self-sufficient before the deceased’s life expectancy, and;
  • Does the loss flow from what the deceased did when alive? Or is it too remote?

This series of features will be followed by an easy to use guide on Fatal Damages in the coming weeks.