This is a joint blog post by Steven Snowden QC of 12KBW, Dushal Mehta of Fieldfisher, and John-Paul Swoboda of 12KBW, the team that acted for the Claimant at first instance and on appeal.
The judgment of the Court of Appeal can be read here.
On 26 August 2021 the Court of Appeal handed down its judgment in this fatal mesothelioma claim. The appeal was brought by the Defendant in the action and at stake was the width and breadth of dependency claims under the Fatal Accidents Act (the FAA) and the proper method of valuing such claims. In addition, a personal tragedy for the Claimant (the removal of her foster children – A and B – from her care after trial) gave the Defendant a further argument; that the future loss of services dependency, in so far as it related to A and B, was no longer sustainable.
The facts of the case and analysis of the first instance decision of Anthony Metzer QC (sitting as a Deputy High Court Judge) can be found in this earlier blog post here.
The lead judgment was given by Nicola Davies LJ, with whom Stuart-Smith LJ and Sir Patrick Elias agreed, making this a powerful and unanimous decision of the Court of Appeal.
What qualifies as a recoverable dependency under the FAA?
The Defendant argued that the Claimant’s lost opportunity to return to work following the death of her husband, who was the homemaker and responsible for primary childcare, was not a recoverable loss under the FAA because: (a) it was properly characterised as the foster children’s loss, and (b) it arose from a business relationship (fostering). These arguments were rejected by Nicola Davies LJ. As Bedlam LJ had stated in Wood v Bentall Simplex Ltd  PIQR 332 (CA): “No aspect of the law of damages has been found in practice to be more dependent upon the facts of each particular case than the assessment of loss of pecuniary benefit to dependants under the Fatal Accidents Act.” Neither Nicola Davies LJ nor any other member of the Court was willing to go behind the judge’s findings of fact in respect of this issue.
The judgment of Nicola Davies LJ goes beyond a refusal to interfere with factual findings made by the judge below and clarifies the law in a number of ways.
Firstly, where the deceased and their dependant (in this case a husband and wife) receive money for a service (in this case fostering), this does not necessarily mean that the provision of the service was a business decision, such that any loss arising from the death of the deceased is ‘incidental’ to the relationship. This is a question of fact which requires a determination of why the service was provided. In this case, the judge determined that the decision to foster was “at its core” a decision to have a family and therefore not incidental to the relationship of husband and wife. This finding was upheld by the Court of Appeal.
Secondly, in a situation where the same loss is suffered by a person who is eligible to bring a dependency claim under the FAA and a person who is not eligible to bring such a claim, the mere fact that a non-eligible person has suffered the same loss does not prohibit recovery by the eligible dependant. As Nicola Davies LJ put it, “The fact that the children [who by reason of being foster children were not eligible to claim under the FAA] also benefitted from the deceased’s care does not detract from, still less undermine, the claim of Mrs Witham.”
The third and final area of clarification which this part of the decision provides is that the s3(1) gateway under the FAA is wide and cannot be reduced to a simple formulation. The foundation of any claim under s3(1) is a dependant’s loss of expectation of future pecuniary benefit from the deceased and “there is no prescriptive method by which such damage is to be identified” (as Nicola Davies LJ emphasised at ). There is no rule that where the loss arises because the dependant has lost earnings it is not recoverable; in Witham the Claimant/dependant’s claim arose from her lost career (the pecuniary loss giving rise to the s3(1) claim being the loss of earnings) which was held by the Court of Appeal to be a recoverable dependency. The question of how a court should value such a loss is separate and considered immediately below.
How should a recoverable dependency be valued?
The judge at first instance valued the Claimant’s dependency on the deceased in providing childcare to A and B by costing the care on a commercial basis and without making a 25% deduction (as happens in personal injury cases where gratuitous care is provided to an injured claimant to reflect that no tax or NICs will be paid by the caregiver). The Defendant argued that as it was the Claimant who was now providing the care to A and B, the valuation should not have been at commercial rates and there should have been a 25% deduction.
The Defendant’s arguments were dismissed on the basis that under the FAA a judge has a discretion to find the measure of loss most appropriate to the facts of the case. Further, and importantly, the Claimant’s argument that the valuation is of the deceased’s services, rather than the replacement services, was also accepted. As Nicola Davies LJ put it at :“It is the value of the services lost which requires assessment and compensation, not the value of how the dependant manages following the death.” The Court of Appeal confirmed that there is no principle which means that commercial rates cannot be used to value the service provided by the deceased and there is no requirement for a 25% discount where care is subsequently provided on a gratuitous basis. A trial judge has a discretion as to the measure of loss and there is no “prescriptive method by which such damage is to be … calculated.”
Can loss of earnings, in principle, be used as the measure of loss in circumstances where a dependant gives up work to replace a service previously provided by the deceased? This is a point which has often been taken by defendants following Rupasinghe v West Hertfordshire Hospitals NHS Trust  P.I.Q.R Q1. Although the Court of Appeal did not deal squarely with this issue, at  Nicola Davies LJ indicated that the judge did not choose loss of earnings as the measure of loss which would have given rise to the highest level of damages, thus presupposing that this option was open to him. Further the Court of Appeal’s restatement that there is no “prescriptive method by which such damage is to be identified, or calculated…” (this being a quote from Cape Distribution v O’Loughlin  EWCA Civ 178 ) means that any alleged principle that loss of earnings cannot be used as the measure of loss cannot be right as such a principle would amount to a prescriptive method by which damage is, or is not, to be calculated.
Remission to the High Court
An extraordinary turn of events happened to the Claimant after the conclusion of the trial but before the decision on whether to grant the Defendant permission to appeal. A and B were removed from her care so she no longer acted as their foster carer. This was unexpected and unforeseen. It would be wrong to go into detail on this issue here as (a) the Court of Appeal has remitted the matter to High Court to determine how this change of circumstances should affect the Claimant’s dependency on the deceased, in so far as it related to A and B and (b) the Claimant hopes to have A and B returned to her care.
However, this extraordinary turn of events meant that the Court of Appeal considered two principles of general importance: in what circumstances should fresh evidence be permitted after a trial but before an appeal, and to what extent can post death events be taken into account in valuing a dependency under FAA.
Whilst accepting the general principle that there must be an end to litigation save in very exceptional circumstances (which augurs strongly against the admission of new evidence), the Court of Appeal restated its broad discretion to admit new evidence. As the first instance judge had found that the foster care arrangement would continue until 2029, Nicola Davies LJ held that to refuse to admit the evidence “would affront common sense [and] a sense of justice.”
Further, whilst the Court of Appeal’s judgment reiterates that dependency is valued at the date of death, it is also acknowledged that “post death events which are relevant are those which affect the continuance of the dependency…” (cf. Welsh Ambulance Services NHS Trust and another v Jennifer Mary Williams  EWCA Civ 81). On the facts of this case, the Court of Appeal found that the new evidence was directly relevant to the continuance of the dependency and that it was a post death event which was relevant.
Upon these findings, the Court of Appeal remitted the matter to the High Court to determine the valuation of the Claimant’s services dependency upon the deceased, in respect of his childcare for A and B after 19 May 2021 (the date upon which the children were removed from the Claimant’s care) only.