PROVING THINGS 1O2: FAILING TO PROVE CHANCE OF RECONCILIATION

A claimant in a fatal accident claim does not have to prove an entitlement to a dependency claim on the balance of probabilities.  The court can, in appropriate cases, look at the case on the basis of loss of chance, assessing the percentage likelihood of dependency.  This approach was considered and applied by His Honour Judge Freedman (sitting as a High Court judge) in the judgment today in CC v TD [2018] EWHC 1240 (QB).

(A general introduction to the law relating to fatal accidents can be found on my Fatal Accident blog – available here).

THE CASE

The Claimant’s husband was killed in a road traffic accident. At the time of the accident the couple were living apart and the wife had filed a divorce petition.  One of the issues in the case was the prospect of reconciliation.  If there was a prospect of the couple reconciling this had a significant impact on the overall award.    The claimant contended that there was a strong likelihood of reconciliation.

THE LAW

The judgment sets out the legal test.

1. Until the decision of the House of Lords in Davies v Taylor [1974] AC 207, it was thought that the legal test, in these circumstances, is whether the claimant is able to establish that it was more likely than not (i.e. on the balance of probabilities) that the parties would have reconciled. However, in Davies the House of Lords held that the test for a claim by a dependant under the Fatal Accidents Act was whether there was a reasonable expectation of pecuniary benefit from the deceased, which, in the case of a separated couple, meant that the claimant had to show some significant chance that there would have been a reconciliation. Significant chance or prospect was to be contrasted with mere speculative possibility. In the event that the court concludes that there was a substantial possibility of a resumption of cohabitation, then the next stage is to assess, in percentage terms, the prospect of such reconciliation. Such percentage then falls to be applied to the amount of dependency which would otherwise have been awarded to the claimant.

COMMENT ON THE LAW

There is a danger that the term “significant chance or prospect” could be viewed as a very high barrier. In fact the House of Lords phrased the test slightly differently.  Lord Simon, in the Davies case, preferred the term “substantial” and “not merely fanciful”.

“So, too, in the instant case. Bridge J, was misled into thinking that it was agreed that the correct test was whether he was satisfied that it was more likely than not that the appellant and the deceased would resume cohabitation – the only basis on which the appellant could prove loss of dependency. But this is one of those cases where a balance of probabilities is not the correct test. If the appellant showed any substantial (i.e. not merely fanciful) possibility of a resumption of cohabitation she was entitled to compensation for being deprived of that possibility. The damages would, of course, be scaled down from those payable to a dependent spouse of a stable union, according as the possibility became progressively more remote. But she would still be entitled to some damages down to the point where the possibility was so fanciful and remote as to be de minimis.“

A “substantial” case could still be one where there was a less than 50% chance of reconciliation. The term “significant” should not be read to mean “greater than 50%”.   If this construction were to be adopted then there would be no point in having the test.  A claimant is entitled to damages “down to the point where the possibility [of reconciliation] was so fanciful and remote as to be de minimis.”  

THE JUDGE’S FINDINGS

The judge found that there was not a significant chance of reconciliation.

“My Findings

1. I remind myself that it is my task to analyse the evidence objectively and dispassionately. Whilst, of course, I can, and do have regard to what the Claimant now says about whether she would have gone through with a divorce, of necessity, I must closely scrutinise what was happening within the marriage at the material time.

2. At the outset, I recognise, of course, that the claimant and the Deceased had enjoyed a long relationship of nearly 30 years’ duration and a marriage of some 9 years. It must also be acknowledged that the evidence demonstrates that, for the majority of the time, they had a very happy relationship centring around family life and their three children as well as the claimant’s first child, Anthony, from her first marriage. They enjoyed a good standard of living, particularly in the years before the recession in the construction industry; and they were able to take the family on expensive holidays abroad.

3. I also find as a fact that there still existed love and affection between the Deceased and the claimant, even when they were separated as from the beginning of 2014. The Deceased’s response to the text from the claimant sending birthday wishes was illustrative of how he felt about her and the family. I also accept what the claimant told me in evidence, namely that she still loved the Deceased despite all that had happened in their marriage. Her Victim Impact Statement is testament to how she felt about the Deceased. Unsurprisingly, the whole family was devastated by his untimely death.

4. However, although she still loved him, it is clear that she no longer felt able or wanted to live in the same household as the Deceased. I conclude that this marriage had been in trouble for some considerable period of time prior to the separation. The entry in the GP records makes it clear that the claimant and the Deceased had been attending Relate since the middle of 2012. I accept that the referral to Relate was occasioned by the problems which RC presented as a teenager out of control. But it is plain that there was very considerable conflict between the claimant and the Deceased as to how best to deal with RC’s behaviour; whilst the Deceased appears to have been relaxed and relatively unconcerned, the claimant was very interventionist. The claimant conceded that this created a serious rift between them. She felt unsupported by her husband and, as she herself said in evidence, she was no longer able or willing to engage in sexual relations with him. Reading her witness statement, I gain the impression that there had been no physical intimacy for a considerable period of time prior to the separation. This, of course, had a very negative impact on the Deceased, who felt unwanted and unloved. This inevitably gave rise to further conflict.

5. The evidence is clear that by November 2013, the claimant had had enough: the attendance note written by Mr Holland dated 16 November 2013 states unequivocally “she has made up her mind”. It seems to me that at no stage thereafter did the claimant retreat from that position.

6. To the contrary, her resolve to terminate this marriage hardened. The telephone attendance note written by Mr Holland dated 2 January 2014 demonstrates how matters had deteriorated over the previous few weeks. The claimant informed Mr Holland that the Deceased had been drinking heavily, and that he had been verbally abusive towards her. He had also assaulted RC and she had had to call the police. She also complained that the Deceased was coming into the matrimonial home in the early hours of the morning, waking everybody up and being verbally abusive in front of the children. This resulted in her contacting the domestic abuse helpline and then obtaining a non-molestation order.

7. Coupled with these matters, in or about mid-January 2014, the claimant discovered that the Deceased was having an affair: that can only have served further to strengthen her resolve. Indeed, in the telephone attendance note dated 27 January 2014, Mr Holland records that: “she also wants to progress the divorce ASAP“. She wanted the Deceased to move out of the matrimonial home but he refused to do so and, accordingly, she felt that she had no alternative but to move, with the two younger children, to one of the rented properties.

8. Once she had moved out of the matrimonial home, over the ensuing five months there was very little contact between the claimant and the Deceased. It seems to me that neither party took any active steps to see if some form of reconciliation could be effected. Although the Deceased professed his love for the claimant and, at least on one occasion, asked her to re-consider, he did not do anything of a practical nature to try to win her back. To the contrary, he continued with his affair and, importantly in my judgment, he chose not to defend the divorce. In addition, he refused to meet the mortgage payments. He must have appreciated that this would only exacerbate the situation. As an act of finality, as it seems to me, the Deceased then agreed with the claimant that the matrimonial home should be placed on the open market.

9. Notwithstanding the situation that existed as at the time of this tragic accident, I am nevertheless asked to accept that, over the next couple of months or so, the claimant would have re-considered matters and sought to retrieve the marriage. This is put primarily on the basis that, once she had appreciated the financial implications of the divorce, she would have decided not to proceed. As to this, in the first instance, I am unable to accept that she did not reflect upon financial matters prior to the divorce petition being filed. Although she may not have received detailed advice from Mr Holland, it is clear that there were discussions about what would be likely to happen to the matrimonial home and the buy-to-let properties in the event of the divorce proceeding. It is instructive, for example, to look at the attendance note dated 27 November 2013 recording a discussion about the financial claims that the claimant could make and how the assets might be distributed between the parties. Furthermore, and although I accept that the claimant was under some strain and pressure at the time, there is no doubt that she is an intelligent lady who had an understanding, at least in broad terms, of the financial implications of a divorce.

10. In any event, and even if she had received the advice given subsequently by Ms Syme or Ms Teacher, I am wholly unpersuaded that this would have caused her to change her mind. I accept the submission of Mr Curtis that on closer analysis, at least in the short term, she would not have been significantly worse off than if she had remained married. Whilst it is true that she would have lost the benefit of tax credits and maintenance after a few years, I think it very unlikely that the claimant would have focused on this, or for it to have been of such concern to cause her to re-think matters. In short, her potential financial circumstances five years down the line were, in my view, unlikely to have affected her thinking about the imminent divorce. In any event, the reality is that she knew that she had an earning capacity beyond what she was earning at that time: if she chose to work full time, she could have earned in the order of £25,000.

11. Accordingly, I reject the submission that if the claimant had received more detailed financial advice during the so-called ‘cooling off period’ between Decree Nisi and Decree Absolute she would, or might have, decided not to proceed with the divorce. It seems to me that if she was going to have concerns about her financial predicament such as to cause her to waver about a divorce, such would have emerged during her discussions with Mr Holland. It is clear that at no point did she discuss with Mr Holland whether she would be able to afford to divorce the Deceased.

12. Equally, I do not accept the proposition that the claimant was acting in blind panic. She had made the decision to divorce in November 2013, before the Deceased had become abusive and violent; and before he embarked upon an affair. In the months following the separation, she had time to reflect upon whether she really wanted a divorce. She knew, or believed, that the Deceased did not want a divorce but she was apparently unmoved by his pleas to reconcile. She will have appreciated the potentially adverse effect on the children of a divorce but, again, this did not cause her to re-consider. It seems to me that Miranda Walmington’s description of the claimant as being “very strong and determined as well as independent” is accurate: she was determined to proceed with the divorce and, would have done so, whatever advice she received, whether financial or otherwise.

13. In these circumstances, regrettably, I am unable to find that there was a significant chance that, but for his death, the Deceased and the claimant would have been reconciled. For the reasons set out above, my view is that the chances of this marriage being saved and not proceeding to a Decree Absolute were no more than a speculative possibility.”