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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> ATH & Anor v MS [2002] EWCA Civ 792 (11 June 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/792.html Cite as: [2003] QB 965, [2002] EWCA Civ 792, [2002] 3 WLR 1179

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		Neutral Citation Number: [2002] EWCA Civ 792
		Case No: B3/2001/1327

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE HUTTON
(Sitting as a Judge of the High Court)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th June 2002

B e f o r e :

LORD JUSTICE KENNEDY
LORD JUSTICE TUCKEY
and
MR JUSTICE JACKSON
____________________

Between:


	ATH & anr	Appellant
	- and -
	MS	Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mark Strachan QC and Andrew Young (instructed by Liddell Zurbrugg, Jockey Fields, WC1R 4BW) for the appellant
Howard Lederman (instructed by Stone Rowe Brewer, Richmond, TW9 1AA) for the respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Lord Justice Kennedy :

1. This is a defendant’s appeal from a decision of Judge Hutton (sitting as a judge of the High Court) who on 18^th May 2001 gave judgment for the second claimant against the defendant in the sum of £307,401.48 (inclusive of interest) under the Fatal Accidents Act 1976, and in the sum of £1,192.68 (inclusive of interest) under the Law Reform (Miscellaneous Provisions) Act 1934. An order was made for the apportionment of the former sum, which included the following dependency awards to three children of the deceased, namely –

(1) AH (female) £32,571.02

(2) NH (male) £119,579.68

(3) PH (male) £137,240.74

Only those three awards are in issue in this appeal. The judge ordered that all parties and witnesses save expert witnesses be known by initials to preserve the anonymity of the children of the deceased, and as no one has asked for that order to be discharged or varied in this judgment I will comply with it.

Background facts.

2. The claim arose out of the death of the deceased MTM as a result of a road accident on the M25 motorway on 22^nd November 1996. Liability was not in issue. MTM was born on 30^th June 1950 so she was 46 years of age when she died. She married Paul and they had four children – Anthony born 30^th January 1976, AH born 6^th May 1977, NH born 6^th May 1985 and PH born 14^th January 1988.
3. Unfortunately there were problems between MTM and her husband. The judge records that during the 1980’s he “suffered some sort of nervous breakdown”. He behaved “very badly and violently” and on 23^rd November 1992 he attempted to murder MTM. In July 1993 he was convicted of that offence and was sentenced to four years imprisonment. MTM and Paul were then divorced. In 1993 AK and his wife, who had been neighbours and friends of MTM and her husband, were also divorced, and in August 1994 MTM and her family began to live with AK at his home at Esher. AK, who was a Detective Sergeant, had two children of his own. They were resident at least for alternate weeks and half of the holidays, and there was also an au pair girl employed by AK. MTM continued with her nursing career. She also did “bank” nurse duties, and looked after her elderly patients who lived nearby, as well as carrying out DIY tasks such as making curtains and decorating, and generally running the home. From August 1995 onwards she and AK combined their bank accounts and discharged their liabilities out of the common pool. MTM received no support from her husband after he was released from prison, and the judge found that the co-habitation between MTM and AK “was as permanent as a marriage”.
4. Although MTM’s eldest son Anthony is not one of the persons for whose benefit this action is brought, and although he was not a witness, his career after leaving school, as well as that of his sister, is of some relevance in assessing how on balance the lives of his younger brothers seem likely to develop, and to what extent the pattern has changed as a result of their mother’s death. In September 1992 Anthony was aged 16, and he was beginning his A level course. In November 1992 his father attempted to murder his mother, and it is clear from his sister’s evidence that there had been problems prior to that traumatic event. In July 1993 his father was convicted and sentenced, and in September 1993 Anthony began his A level course again at a sixth form college, where his sister was also starting her two year approach to A levels. None of that is in any way surprising, but it does explain why Anthony did not get his A level passes until mid 1995 when he was 19½ years of age. He then got a job in the accounts department of a commercial company for a year before starting a four-year degree course in computer programming or information systems at Kingston University, where he did very well. When he began at the University he moved away from home to accommodation which he shared with other students, and after graduating in June 2000 at the age of 24½ he took employment with a computer software company.
5. AH got one grade D and two grade E’s in her A levels in the summer of 1995, when she was just 18. At that time she did not know whether she wanted to act or to teach. She applied to St Mary’s College, Twickenham but was not called for interview, and worked for several months to May 1996 as an unqualified assistant at Broadway Centre, Ashford where her brother NH was a pupil. From May 1996 to November 1996 she had no job, but she then obtained employment in the Education Department of Surrey County Council, and, having re-applied to St Mary’s, in January 1997 she was given a place. She was thus able to begin her four-year teacher-training course in September 1997, from which she graduated in June 2001, and then obtained employment as a teacher.
6. NH was something of a problem child. He was found to have emotional behavioural difficulties, and from 1994 to 1996 he was at the Broadway Centre. In September 1996, at the age of 11, just before his mother died, he reverted to mainstream education at the Salesian School, Chertsey, and in the summer of 2001, at the age of 16, he obtained GCSE passes in Geography, Science (double award),English, Mathematics, Physical Education, Design and Technology, and French five of them at grade C, others at grade D and one at grade E. He then started at a sixth form college on a B Tech course in computer programming, and an A level course in Business Studies. At the trial his sister AH gave evidence that his ambition was to follow his brother Anthony to University, and on to a career involving computers, and he seems to be making steady progress in that direction.
7. PH is now nearly 14½ and is at the Salesian College. His education has not caused problems. In the summer of 2001 he got a good report, but his marks were below the class average except in Science and French. It seems reasonable to suppose that in due course he too may well go on to some form of tertiary education, although neither of his parents in fact did so. His mother started to train as a nurse at the Charing Cross Hospital at the age of 19, and his father Paul went straight from school to train as a police officer.

After the Death.

8. By the time of the accident Paul was living with his new partner Ann, the former wife of AK, and her two sons (for such period as she had contact with them). Almost immediately after the accident Paul gathered up NH and PH and since that time he has been their principal carer, but he is not in any way party to these proceedings, and sadly it is clear that there is still some tension between AH and AK on the one hand and Paul on the other. There were contested proceedings in relation to where the children should live and the extent of their contact with AH, but there is no evidence to suggest that the Court Orders are not being complied with. After her mother’s death AH remained at the home of AK until February 2001 when she moved to a flat which had been owned by her deceased grandparents. AK then sold his house to take up residence with his new partner.

Judge’s decision and Grounds of Appeal.

9. When assessing damages the judge rejected the defendant’s argument, based on Hunt v Severs [1994] 2 AC 350, that there should be no award in respect of services and financial support formerly provided to her children by the deceased but now provided for by Paul and his wife Ann, because Paul and his wife are the only ones entitled to benefit from such an award, and they are highly unlikely to do so.
10. Secondly the judge rejected the argument that in any event Paul cannot be compensated in these proceedings for discharging obligations which as a father it was his parental obligation to discharge (see Hayden v Hayden [1992] 1 WLR 986). There was, it seems, from the time of his divorce, a maintenance order against Paul in a nominal sum.
11. The Judge’s reasons for rejecting those two arguments seem to be three fold, namely –

(1) That under the Fatal Accidents Act the court is required to award damages to dependants, and not to carers.

(2) But for the accident Paul and his wife would not have done anything for NH and PH, so no part of the award should be held on trust for Paul.

(3) The services and financial support which NH and PH have received from Paul and his wife since the accident are a benefit resulting from the death of their mother, and must therefore be disregarded pursuant to section 4 of the 1976 Act.

12. When he turned to consider the question of the multiplicand the judge accepted the submission made by Mr Lederman for the claimants that the starting point should be 75% of the net income of the deceased, and found that the deceased “would have been promoted to Grade I within 12 months of her death”.
13. As to the multiplier, the judge held that on the balance of probabilities NH and PH will go to universities and that the extension of their education, including probably a gap year, means that in the case of each of them allowance should be made for dependency extending to the age of 24. Measuring from the date of the accident he rounded up the figures to 5 years in the case of AH, 13 years in the case of NH and 16 years in the case of PH. He then used the Ogden tables (Fourth Edition) to finalise the calculation. He accepted what Mr Lederman described as “a modified Cookson v Knowles calculation” to produce in each case a discount of .5% for the first four years (i.e. roughly the period between the accident and trial) and a discount of 3% for the balance of the number of years he considered to be appropriate in each case.
14. When he gave judgment the judge initially overlooked the claim for compensation in respect of the services performed by the deceased. After hearing further submissions in relation to that head of claim he awarded £50,000. He did not indicate how he reached that sum.
15. For the loss of the special services which only a mother could provide the judge awarded in the case of AH £1000; NH £5000; and PH £7000. There is no challenge in this appeal to the first of those three awards, but otherwise the summary of the decision which I have just given identifies the matters with which we are now asked to consider.

Applicability of Hunt v Severs.

16. In Hunt v Severs the plaintiff was seriously injured when riding as a pillion passenger on the defendant’s motor cycle, as a result of his negligence. They subsequently married, and he was her prime carer. She claimed against him for amongst other things his travelling expenses when visiting her in hospital, and for the value of the services which he had rendered and would go on rendering to her in the future. Those claims were disallowed. At 358 F Lord Bridge said that the voluntary carer has no cause of action of his own against the tortfeasor. He then traced the development in English and Scottish law of the victim’s right to claim so as to recompense the voluntary carer, and at 363 C adopted the view that in England “the injured plaintiff who receives damages under this head should hold them on trust for the voluntary carer.” He disapproved of the reasoning of the Court of Appeal in Donnelly v Joyce [1974] QB 454, and said at 363 E –

“There can be no ground in public policy or otherwise for requiring the tortfeasor to pay to the plaintiff, in respect of the services which he himself has rendered, a sum of money which the plaintiff must then repay to him.”

17. Mr Mark Strachan QC, for the appellant/defendant, submits that the applicability of the approach adopted in Hunt v Severs to claims under the Fatal Accidents Act is self-evident. Subject to the words of the 1976 Act, if the person who has provided and will provide the necessary substitute services and financial support is not going to receive any award made to compensate him for those services because he or she does not want to accept payment, or because (as in this case) on the facts the payment is highly unlikely to reach the service provider, then no award should be made, and there are, he submits, recent authorities, to which I will come, which support that approach.
18. In response to that line of argument Mr Lederman has made a number of points, some of which, in my judgment, can be quickly disposed of. First he points out that there is no direct evidence of the value of any services provided to NH and PH by Paul and his wife Ann, and that Paul has made no attempt to join in this claim. The suggestion, as I understand it, is that the court should disregard the services rendered by the boys’ father for lack of evidence. That is something I am not prepared to accept. One thing that is clear is that those family members who gave evidence are not sympathetic to Paul and Ann, and as they had frequent access to the boys I am entirely satisfied that if there was any lack of care by Paul and Ann the judge would have heard about it. On the evidence available it seems to me that the only realistic conclusion is that in material terms since the death of their mother the boys have not suffered, and that is because of what has been provided for them by their father and his wife.
19. Mr Lederman then points out that as there can only be one action the defendant cannot be sued separately by the services provider, and therefore, as he submits, the defendant should be required to pay to the claimant in the action what he would have been required to pay if the services provider had been joined as a dependant. He even goes so far as to suggest that the award of damages already made is a possession of the boys protected by the European Convention on Human Rights. That I regard as no more than a smoke screen. The simple underlying truth is that in justice the claimant should not be compensated for the cost of services already provided gratuitously if that compensation is not going to find its way to the service provider.
20. A more attractive argument advanced by Mr Lederman on the evidence is that if an award is made in respect of future needs which the deceased might have been expected to meet, some at least of that money might go to meet those needs in due course. As is clear from the order made in the court below there are trusts in which money can be held “for the sole and exclusive benefit of NH and PH until they reach the age of 21” and the order made by the judge requires that all of the monies with which we are concerned in this appeal be transferred to the trustees (Anthony, AH and their uncle DH) to be held upon those trusts. Mr Lederman points out that in evidence two of the trustees, AH and DH, did not exclude the possibility of trust money being made available for university education. But with that exception they were clearly not prepared to countenance payments to Paul.
21. That brings me back to the wording of the 1976 Act. As Mr Lederman submits, section 1(2) provides that every action “shall be for the benefit of the dependants”, but if that is relied on to exclude a claim from the benefit of a voluntary service provider it must mean not only that many cases have been wrongly decided, but also that a claim in respect of those services cannot be advanced at all because the infant dependants have not suffered any loss. Section 2(1) requires that any action shall be brought in the name of the executor or administrator, and section 3(1) provides that –

“In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.”

Section 3(3) deals with the position of widows. It provides –

“In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken into account the re-marriage of the widow or her prospects of the re-marriage”

Then section 4 provides –

“In assessing damages in respect of a persons death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.”

That section obviously gives rise to the issue as to whether Paul’s services to his younger sons since the death of their mother are “benefits” which have accrued to them as a result of her death. If they are then, as the judge found, those services, past and potential, must be disregarded so no compensation can be paid in respect of them, but, at least arguably, because they have been rendered the boys have suffered no demonstrable loss. A general requirement to disregard benefits should not be so construed as to enable a claimant to recover the value of losses which dependants have not sustained.

Authorities, including Hayden v Hayden.

22. In Hay v Hughes [1975] QB 790 two small children lost both parents in a motor accident. Their grandmother took them into her home and cared for them. As the law then stood if her services resulted from the death of the mother they were a benefit to be deducted from the children’s claim for loss of services. Lord Edmund Davies, sitting in the Court of Appeal, said at 809 –

“While the need for the grandmother’s care undoubtedly arose from the mother’s death, the view which a reasonable jury would be likely to adopt would be that the children benefited not as a result of their mother’s death but simply because the grandmother has taken it upon herself to render them services.”

23. I can pass over Watson v Wilmott [1991] 1 All E R 473 because it had the complicating feature of an adoption, and come next to Stanley v Saddique [1992] 1 QB 1. In that case the infant plaintiff’s mother was killed in a car accident after which his father married another woman and, as the judge found, the child received better services from his step-mother than he would have received from his mother had she survived. The Court of Appeal set aside the judge’s award for loss of services calculated on the basis of multiplier/multiplicand and awarded a lump sum, but as to the approach to be adopted in relation to the services received from the father and step-mother after the mother’s death Purchas LJ, after examining the history of fatal accidents legislation, said at 13 E to 14 B –

“The problem is to decide whether in construing the new section 4 there is any justification for construing the words ‘benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded’ as in any way being restricted or whether they should be given the full ambit of the word ‘otherwise’ ... it seems inconceivable that Parliament would have effected a wholesale repeal of all the long-standing previous statutory exceptions from the deduction of benefits by a side wind of this sort with the exception of the exclusion of the prospects of re-marriage on the part of the widow (semble but not the widower). In my judgment, the preferable construction is that advanced by (counsel) namely that section 3(3) was left in as being a particular significant question of policy, but that by section 4 Parliament intended to further the departure from the ordinary common law assessment of damages for personal injuries by the artificial concept which has for many decades been the basis of damages recoverable under the Fatal Accident Act.

For reasons I have just given I have come to the conclusion that the judge was correct in his decision that the benefits accruing to the plaintiff as a result of his absorption into the family unit consisting of his father and step-mother and siblings should be wholly disregarded for the purpose of assessing damages.”

It is perhaps worth emphasising that in that case the plaintiff’s father was one of the providers of those benefits which the court decided to disregard.

24. In Hayden v Hayden [1992] 1 PIQR at Q111 the four-year old plaintiff’s mother was killed in a car accident caused by the negligence of her father. He brought her up on his own but part of her claim against him was for the cost of a nanny. That claim was disallowed. Sir David Croom-Johnson said of the father’s services at Q123 that “what he has done has had, as one result, the reduction of his liability” but Sir David supported an award for the loss of the mother’s services “over and above what Mr Hayden has been able to replace”.
25. As to the effect of section 4 Sir David pointed out that in Stanley v Saddique it was only after the mother’s death that the father settled down, married and created a new home to which the plaintiff moved. At Q124 Sir David continued –

“The facts in the instant case, however, are wholly different from those in Stanley v Saddique. Danielle remained in the family home with her father and, for a time, with her older brothers and sisters until they left home. She continued to be looked after by him. No reasonable judge or jury would regard Mr Hayden, in doing what he did, as doing other than discharge his parental duties, many of which he has been carrying out in any event, and would be expected to continue to do...... The continuing services of the father are not a benefit which has accrued as a result of the death. In the end, what is a ‘benefit’ must be a question of fact.”

Parker LJ reviewed the authorities and then said at Q127 that it is clear that in Stanley v Saddique Purchas LJ “regarded the services of the step-mother as being a benefit resulting from the death of the deceased which is directly contrary to the decision in Hay v Hughes”. Parker LJ continued –

“With conflicting decisions on the point whether the gratuitous services of a relative do or do not result from the death of the mother I for my part have no hesitation in following Hay v Hughes rather than Stanley v Saddique and if this is right section 4 does not apply. This however does not dispose of the matter because in Hay v Hughes the benefit of such gratuitous services was excluded, quite apart from any relevant statutory exclusions, on the ground that they did not result from the death.”

At the foot of Q128 Parker LJ continued –

“In my judgment before one gets to section 4 it must first be established what injury has been suffered by the child. What it has prima facie lost, is the services provided by the mother but the fact that they were provided by the mother is irrelevant. If in fact those services were replaced without interval of time up- to-date of trial by as good or better services it is in my view at least open to a judge or jury to conclude that the child has lost nothing up to that date. But if the replacement services can be discontinued it is of course exposed to the risk that such services may be discontinued and that risk must be quantified .... If then it is a jury question, would a jury be likely to say that the tort feasor who has provided the services and given up his job so to do must nevertheless pay what it cost to provide the services which he himself has provided.”

In the final paragraph of his judgment Parker LJ said –

“I would add by way of post script that, where the provider of the replacement services is the tort feasor, arguments successfully advanced in earlier cases that it would be unjust if the tort feasor were to benefit from the generosity of a third party cannot apply.”

26. Chronologically the next decision is that of the House of Lords in Hunt v Severs, to which I have already referred, and I can therefore move on to R v Criminal Injuries Compensation Board ex parte K.[1999] QB 1131, a decision of the Divisional Court of the Queen’s Bench Division. In that case the mother of the children was murdered by their father, and the children were taken into the care of their uncle and aunt, whose care was at least as good as that provided by their mother before her death. Brooke LJ analysed the authorities to which I have referred, namely Hay v Hughes, Stanley v Saddique and Hayden v Hayden. He found that there was no conflict between Hay v Hughes and Stanley v Saddique because “benefits equivalent to those rendered by the grandmother in Hay v Hughes did accrue to a child as a result of the death within the meaning of the new statute”, so part of the reasoning of Parker LJ in Hayden v Hayden was flawed. Brooke LJ pointed out at 1140 E that it is clear from the decision of the Court of Appeal in Auty v NCB [1985] 1 WLR 784 that the provisions of section 4(1) of the Act have to be observed at both stages of the inquiry (i.e. when assessing the loss as well as when calculating compensation) and when that is done it cannot be said that children deprived of their mother suffered no loss because the only way in which to arrive at that conclusion is to take into account excluded material. In the result Hayden v Hayden was distinguished and Stanley v Saddique was followed, but at 1141 C Brooke LJ said –

“The correct way to resolve a claim by a child whose needs are met after its mother’s death, by someone who already owed parental duties to it before the death will have to be resolved by the courts on another occasion, although fortunately that situation will not be complicated by the additional complicating factor in Hayden v Hayden that the substituted parental carer and the payer are one and the same person.”

That, it is now submitted, is this case.

27. The other member of the Divisional Court was Rougier J who said at 1143 D that the CICB had overlooked two factors –

“First, the majority of the court in Hayden v Hayden declared that Stanley v Saddique was binding upon them. Secondly, they were able to distinguish Hayden v Hayden on two specific differences of fact: (1) that the defendant was himself the tort feasor who was continuing to provide the services, so that to make him pay for them would effectively be awarding triple damages, and (2) that the defendant, as the father of the children, had been providing services before the death by reason of no more than parental duty, so that the services he provided after death could not be said to arise as a result of the death.”

28. In Bordin and another v St Mary’s NHS Trust [2000] LL.R. 287 the second claimant’s mother died as a result of medical negligence immediately preceding his birth. He was cared for at various times by grand parents, an aunt and his father, so part of the claim related to services gratuitously provided by the father. As to that Crane J said at 294 that the reasoning in Hunt v Severs confirms–

“that the recipient of damages in such circumstances holds the relevant sum in trust for the provider of care. It is not apparently a trust that the court will seek to enforce. But I am invited to say that any sum representing care by Dr Bordin falls within the area of a personal claim by him. I do not agree. Any damages under this head are those to which the second claimant is entitled and in my view he should not be deprived of them or of his ability, if it is thought appropriate, for him to recompense his father for that care.”

The last authority which I need to consider under this head is the decision of Mr Stuart Brown QC, sitting as deputy High Court Judge, in L v Barry May Haulage [2002] PIQR at Q35. In 1997 the mother of the 12 year-old claimant was killed in a road accident. He had lived with her since his parents separated 4 years earlier. After the accident he went to live with his father and his father’s partner, and their children, even though the father had not provided support for the claimant for many years, and but for the accident was very unlikely ever to have done so. The deputy judge reviewed the authorities and said at Q43 –

“I have come to the view that, on the particular facts of this case, a real and substantial loss has been demonstrated and, that the provision of substitute services, (and) support must, in the instant case, be disregarded. My reasons are these:

(1) Prior to the death no significant support nor services were in fact being provided;

(2) There was no real likelihood, given Mr L’s financial and domestic circumstances, that any such would have been provided;

(3) Thus, as a matter of fact, the services and support provided have arisen as a result of the death;

(4) Though Mr L was under a potential legal obligation to maintain L there was no likelihood that such would be realised; there is no indication that the deceased would have sought contributions still less that the litigation friend would have been able to meet such;

(5) In so far as he now has an obligation, that obligation arises by reason of his accepting the obligations arising under the testamentary guardianship which came into effect on (as a result of) the death.

The matter would have been entirely different if, as in Hayden, the parents had been living together before the death or if, as in Martin v Grey there had been a financial order for actual support in place, again before the death. If there had, at the time of death, been a real prospect of the father providing future support that would, in my view, be a matter properly to be brought into account.”

Our attention has been drawn to the caveat relating to the existence of a financial order, but I cannot regard that asbeing of any moment in the circumstances of this case, where the order was purely nominal.

Conclusion as to right to claim for dependence.

29. In my judgment, in the light of the authorities, the position is reasonably clear. Where, as here, infant children are living with and are dependant on one parent, with no support being provided by the other parent, in circumstances where the provision of such support in the future seems unlikely, and the parent with whom they are living is killed, in circumstances giving rise to liability under the Fatal Accidents Act, after which the other parent (who is not the tort feasor) houses and takes responsibility for the children, the support which they enjoy after the accident is a benefit which has accrued as a result of the death and, pursuant to section 4 of the 1976 Act, it must be disregarded, both in the assessment of loss and in the calculation of damages.
30. However, such damages can only be awarded on the basis that they are used to reimburse the voluntary carer for services already rendered, and are available to pay for such services in the future. In the words used by Lord Bridge in Hunt v Severs damages are held on trust and if the terms of the trust seem unlikely to be fulfilled then the court awarding damages must take steps to avoid that outcome. Contrary to what was said by Crane J in Bordin I believe that the trust is one which the court can, and in an appropriate case should enforce. It is not sufficient to leave the matter for further litigation in another division. I will return to that matter at the end of this judgment.

Multiplicand

31. Where a couple are living together pooling their resources and paying their bills out of a common pool before one of them is killed, in order to ascertain the multiplicand for the purposes of calculating damages the court will normally apply a percentage, usually 66%, to the net joint income, and then deduct the net income of the survivor (see Coward v Comex Houlder Diving Ltd[1998] CA, set out in Kemp & Kemp on Quantum of Damages at M2-232). Mr Strachan submits that should have been the approach of the trial judge in this case, whereas in fact what he did was to take 75% of the net income of the deceased. Such a percentage might well have been appropriate if, after the breakdown of her marriage, the deceased had lived alone with her children or had set up home with someone who did not contribute, but it did not have regard to the realities of this case. For the claimant Mr Lederman contends that the multiplicand is acceptable because the period of cohabitation and of pooling of resources between the deceased and AK was short, and because in the event AK did not remain a significant contributor of income to the family of the deceased. Of course the force of that last point is reduced by recognition of the role played by Paul and his new wife. The judge’s explanation of his reasons for deciding as he did is succinct. He said simply –

“In the particular circumstances of this case, and as MTM had been the sole supporter of the children for many years, I accept that submission by Mr Lederman and make the finding that her income should be divided as to 25% for her own support and 75% for that of her children. I accept that as a starting point.”

He then turned to the question of possible promotion.

32. In my judgment in the peculiar circumstances of this case the judge was right to abandon the approach suggested in Coward v Comex and in the absence of satisfactory evidence as to the value of the benefits received by the infant dependants from the deceased he was bound to turn to the deceased’s own net income as a starting point. However, his conclusion seems to me to be unacceptable because it made no allowance at all for the contributions of AK and later of the father Paul and his wife. These children never were, and in reality were never likely to be wholly dependent upon what their mother could earn. I would therefore reduce the multiplicand from 75% to 60% of the deceased’s earnings.

Prospects of promotion.

33. The judge found that the deceased “would have been promoted to Grade I within twelve months of her death but that she would not have been promoted to Grade J. On the face of it that is a surprising conclusion because, as Mr Strachan points out, Dr Robin Orchard, who gave evidence in support of the claim, and who spoke in glowing terms of the abilities of the deceased, only envisaged promotion within two to three years of death, and there was no evidence to suggest that the deceased might have been promoted any earlier. However, Dr Orchard’s evidence, which was uncontradicted, clearly envisaged the possibility of further promotion and, even if the judge took the view that on balance further promotion was unlikely to happen, it was incumbent upon him to make some allowance for that possibility. One way of making that allowance was to assume that promotion to Grade I would occur after only one year. It is, I accept, unfortunate that the judge did not explain why, in the light of the evidence, he felt able to conclude that the deceased would be promoted within twelve months, but for the reason I have given I do not regard the conclusion as one with which this court should now interfere.

Multiplier.

34. On the evidence the judge was asked to conclude, as he did, that NH and PH “look set for university education”. It might have been better to have used the word tertiary rather than university but for present purposes nothing turns on that. The judge accepted that if the deceased had survived she would have supported her two youngest children “in further education, including probably a gap year.” The judge, having referred to Anthony and AH, pointed out that increasingly tertiary education has to be funded by a student or his family, and concluded that the dependency in respect of NH and PH “should continue to the age of 24”.
35. Despite the valiant efforts of Mr Lederman to sustain the judge’s conclusion in relation to this issue I am satisfied that it cannot be sustained. As Mr Strachan points out, it makes no allowances at all for the real possibility that one or both boys might not proceed to tertiary education (see Corbett v Barking H A [1991] 2 QB 408 at 441 C – F for the correct approach). The judge seems also to have overlooked the special factors, peculiar to Anthony and AH, which resulted in them not graduating until the age of 24. In the case of Anthony a critical factor was, it seems, his father’s offence; both he and his sister had significant periods before going to university when they were earning, and both as it happened took 4 year rather than 3 year degree courses. On the other hand it can be said that in this family there is no established pattern of a smooth progress to graduation at the age of 21, so some allowance should be made for the possibility of a gap year or a second attempt at examinations. Having regard to all of those factors, as well as to the ages of the boys and what the judge knew about them, it seems to me that it would be wrong to proceed upon the basis that the dependency in respect of either boy would extend beyond his 21^st birthday. In the case of AH the position is different. She graduated in June 2001, soon after judgment was delivered, and began her teaching career, as expected, in September 2001. That, as it seems to me, is when in her case dependency should be regarded as coming to an end.
36. When he came to apply the multipliers which he had selected the judge was persuaded by Mr Lederman to adopt an approach other than the approach adopted by the House of Lords in Cookson v Knowles [1979] AC 556 at 574 to 576, and in Graham v Dodds [1983] 1 WLR 808. In my judgment the departure was unjustified for the reasons cogently explained by Nelson J in White v ESAB Group (UK Ltd) 11^th October 2001. In fairness to the trial judge it should be said that White’s case was decided several months after he gave judgment in this case.

Evaluation of Mother’s services.

37. Before the judge Mr Lederman had submitted that the award under this head should be in the region of £150,000, based on figures supplied by a witness named Mary Chapple relating to the market costs of housekeepers and nannies. Counsel for the defendant relied on another witness, Jenny Lawrence, who calculated the number of hours she believed to be devoted by the deceased to her home and to her children and evaluated those 26 hours at an adjusted local authority rate. That produced a total of £25,000. Both AH and AK said that the number of hours on which Jenny Lawrence based her calculations was too low, and there were obvious criticisms to be made both ways in relation to the rates employed, so the attention of the judge was drawn to the level of awards made under this head in other cases where there were no special factors such as replacement services being paid for, or a relative giving up paid employment to provide them. Before us Mr Strachan accepted that the judge was entitled to reject the rates relied upon by Mary Chapple and Jenny Lawrence, but he submitted that the calculation of hours was realistic and that having regard to the ages of the children and the awards made in other cases the judge’s award was unjustified and out of line. Mr Lederman submitted that although the award was high it was not outside the bracket of other awards when properly adjusted. In my judgment the award was plainly outside the bracket, and as the judge did not explain his reasons for such a high award I am unable to see how it can be sustained. I would reduce the award under this head to £37,500.

Services only a mother can provide.

38. The awards to NH and PH of £5000 and £7000 are challenged by Mr Strachan on the basis that the conventional maximum award is about £5000, even where the dependant child is very young (see, for example, Bordin (supra) where the mother died following child-birth). Mr Lederman’s response is that in other cases there was no evidence as to the value and quality of the services lost. In my judgment that is not a sufficient reason to abandon the bracket, and I would reduce the award in the case of NH to £3500 and in the case of PH to £4500.

Conclusion.

39. In the course of this judgment I have, I believe, dealt with all of the issues argued in the appeal. I leave it to counsel to complete the calculations by applying the conclusions I have expressed to the figures. I believe that can be done so as to produce a draft agreed order which can be made when the judgment is handed down. If any problem arises it can be dealt with on that occasion. Subject thereto I would allow this appeal to the extent that I have indicated.
40. When the order is drawn up provision must be made for payment into court within 14 days of all monies to which NH and PH are entitled, and of any interest thereon. The monies paid in will be placed in the Special Investment Account, to be held by the court in that account or otherwise dealt with as the court may direct until, in the case of NH 6^th May 2006, and in the case of PH 14^th January 2009. The order must further provide that within 28 days of the date on which the order is made Paul and/or AH shall apply (each on notice to the other) to the Senior Master at the Royal Courts of Justice for Investment Directions. That application can be made without formality by letter addressed to the Senior Master referring to this case.
41. It will be observed that the order which I have in mind embraces that part of the award which enables NH and PH to make some payment for care already received. Whether Paul or anyone else should receive such payment in the immediate future is a matter which can be considered by the Master when Directions are made.

Lord Justice Tuckey:

42. I agree.

Mr Justice Jackson:

43. I also agree.

Order:

44. That the appeal be allowed and paragraphs 2,9, and 11 of the judgment of His Honour Judge Hutton dated 21^st May 2001 be set aside.
45. That there be judgment for the Second Respondent against the Appellant in the sum of £205,673.71 (inclusive of interest) under the Fatal Accidents Act 1976.
46. That the sum of £205,673.71 be appointed under the Fatal Accidents Act 1976 as follows:

Dependant/party Amount

DAWW £9,467.83

AH £27,427.69

NH £73,890.52

PH £86,345.47

AK £796.95

AM £7,745.25

47. That the sums of £73,890.53 and £86,345.47 awarded to NH and PH respectively, inclusive of interest, plus any further interest accrued since payment, be paid into court within 28 days by the trustees of the trust fund referred to in paragraph 11 of the Order of His Honour Judge Hutton dated 21^st May 2001 and thereafter held by the court in the Special Investment Account, or otherwise dealt with as the court may direct until 6^th May 2006 in the case of NH and 14^th January 2009 in the case of PH;
48. That the balance of £101,727.77 ordered to be paid to the Respondent’s solicitors by paragraph 10 of the Order of HHJ Hutton dated 21^st May 2001 be paid back to the Appellant’s solicitors within 28 days, together with interest at the rate of 7% from the date of payment by the Appellant’s solicitors, by the trustees of the trust fund referred to in paragraph 11 of the said Order.
49. That, within 28 days of the date of this Order, Paul Hutchins and/or AH shall apply, each on notice to the other, to the Senior Master for investment directions in relation to the sums paid into court under paragraph 4 of this Order.
50. That the parties have permission to apply to the Court of Appeal for a reduction in the awards made to NH and PH under paragraph 2 and 3 of this Order and for any consequential Order, in the events that Paul Hutchins make no application in accordance with paragraph 6 of this Order or alternatively makes an application that is refused by the court.
51. That provision be made for the costs of the appeal.
(Order does not form part of the approved judgment)