PROVING THINGS 151: DEPENDENCY IN A FATAL ACCIDENT ACT CLAIM: ADULT CHILD DEPENDANTS RECEIVE DAMAGES FOR FUTURE CONTRIBUTIONS TO WEDDINGS AND TOWARDS THEIR FIRST HOME

In  AB v KL [2019] EWHC 611 (QB) David Edwards QC (sitting as a judge of the High Court) considered the nature of the evidence needed to establish damages under the Fatal Accidents Act 1976.  It is also important both in relation to the approach of the court in relation to establishing damages and the recognition that, in the current day and age,  adult children receive help from their parents to a much greater extent than previously.

“In the last 20 years more and more parents have supported their children long after their education has finished. With the high price of housing and the credit crunch many children live at home for many years after leaving school and dependency may therefore continue in some form.”

THE CASE

The claimants brought an action following the death of their father.  The father had been divorced twice and there were no other dependants. The oldest son was born in 1992, the two youngest, twins, born in 2003.   None of the children lived with their father at the date of his death, however they received (or hoped to receive) a degree of financial support from him.  The primary issue in dispute, so far as the dependency claim was concerned, was the extent to which the father would have supported his sons in adult life.

THE JUDGMENT ON THIS ISSUE

1. 1. In relation to these two matters – contribution to a first home and contribution to the cost of weddings – Mr White’s primary submission was that there was so much uncertainty that the claims were essentially speculative and should be rejected in their entirety.

   2. I was referred by Mr Hunter, however, to the following passage in Kemp & Kemp: The Quantum of Damages at 29-029 and to the citation within it of Lord Diplock’s speech in Mallett v McMonagle [1970] AC 166:

“The approach of the court to the assessment of the loss caused by the death is similar to the approach on questions of fact in other personal injury actions. The court does its best to assess what would have happened, but for the death in question, evaluating the evidence as to what the deceased would have done, how his career would have progressed, how long the dependants would have remained dependant and so on.

The guidance given by Lord Diplock in Mallett v McMonagle should be borne in mind during this process. He contrasted the fact-finding task of a court in relation to past fact, decided on the balance of probabilities, with its task in relation to what will happen or would have happened in future but for the wrongful act. He said:

‘… in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.’

In relation to future pecuniary loss, the court uses the normal personal injury tool: multipliers to multiplicands.

Often the best evidence of dependency is that the person claiming was in fact dependent upon the deceased at the time of death so was being maintained by him but this is not a necessary precondition. Thus, a claimant may be able to show that there was a reasonable expectation of future maintenance even though that claimant had not in fact been dependent on the deceased at all during the deceased’s lifetime. In the last 20 years more and more parents have supported their children long after their education has finished. With the high price of housing and the credit crunch many children live at home for many years after leaving school and dependency may therefore continue in some form.

Many of the claims made under the umbrella of loss of dependency include a significant element of hypothesis in that there is inherent uncertainty as to what would have happened if the deceased had not died. For this reason, the courts will often apply percentage reductions to mathematically reached sums to reflect the hypothetical nature of the claim. Sometimes the reduction appears arbitrary, and there is an element of the judge reaching a ‘jury’ award, that is, putting himself in the position of a jury awarding damages and finding the sum which appears to him to be reasonable compensation, looked at overall as a lump sum.”

The editors’ remark concerning the support given by parents to adult children in recent years is obviously pertinent to the claim in the present case for a contribution to the cost of purchasing a first property.

1. 1. Also relevant is the extract from the speech of Lord Simon in Davies v Taylor [1974] AC 207, 220 quoted in Kemp & Kemp at 29-030:

“… much proof depends on credibility, as to which probability is (at least, as yet) only one factor to be weighed. And when it comes to prediction, there are so many factors to be considered (not least the extraordinary vagaries of human nature) that mathematical theory can have in general only marginal significance. So the law ordinarily proceeds to treat probability according to certain easily understood standards. If a possibility is conceivable but fanciful, the law disregards it entirely on the maxim de minimis non curat lex. Most matters in civil litigation have to be proved on the balance of probabilities in other words, is it more likely than not?

But the law is sometimes concerned with categories of probability which do not coincide with these broad ones. Merely by way of example, in assessing damages for personal injuries the court may have to consider and allow for the chance of osteo-arthritis supervening (a chance which, though more than fanciful, may be considerably less than 50-50). 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.”

1. Both Mallett v McMonagle and Davies v Taylor were Fatal Accident Act cases like the present. The principle they reflect, that in certain circumstances issues of causation and loss should be assessed, not on the balance of probabilities but by assessing the chance of something happening, is, however, a general one and applies in other contexts; see, for example, the recent decision of the Supreme Court in Perry v Raleys Solicitors [2019] UKSC 5, a professional negligence case, at [15]-[20] per Lord Briggs commenting on the application of a “loss of a chance” approach in assessing what would have happened in a counter-factual situation or where the relevant events are in the future.

2. A number of matters that I have to decide fall into this category: they involve a counter-factual (what would have happened if GH had not died), consideration of future events (will his sons marry and will they purchase homes) or both (what assistance would GH have given his sons in those situations). I approach those matters with the principles reflected in Mallett v McMonagle, Davies v Taylor and Perry v Raleys in mind. The uncertainties around some of these events may be such that the prospects of their occurrence can be regarded as fanciful; in that case, no damages should be awarded. If they are not fanciful, however, damages may be awarded, though in an amount which reflects the likelihood of their occurrence, as the editors of Kemp & Kemp say applying a percentage reduction to reflect the hypothetical nature of the claim.

THE AWARDS MADE

The judge made awards for birthday parties, contributions to clothing, presents to age 30, holidays, contribution to first homes and weddings.

1. 1. The awards that I make for future financial services dependency in relation to the twins are accordingly as follows:

The total award is thus £98,962.50.

1. 1. AB’s future financial dependency claim comprised three items: presents, holidays and a contribution to his wedding. I have dealt with the last of these already: I award £7,500.00 in respect of a contribution towards any wedding.

   2. So far as the first item is concerned, presents, the Claimant’s claim is for £350.00 per year for 4 years until AB is 30. In line with my comments above, I consider the figure of £350.00 is too high. I award £100.00 per year and thus £400.00 in all.

   3. As for the second item, holidays, the claim is for the cost of two “special” holidays in the future (in the nature of family get-togethers) at £1,000.00 per occasion, i.e., £2,000.00 in all. This is denied by the Defendant on the same grounds as summarised above, essentially that AB is already 26, living with his girlfriend and in employment. I award one half of this: £1,000.00.

   4. The awards I make for future financial dependency for AB are accordingly as follows:

The total award is therefore £8,900.00.

7. Future services dependency claims

1. 1. The final heads of claim are for future services dependency (items M and N). The twins’ claim comprises two items:

AB’s claim comprises only one:

1. 1. So far as the twins are concerned, the updated Schedule of Loss accepts that, as the twins were 15 years old at the date of trial, the services they would have received from their father in the future would have changed; they would no longer have been (or have principally involved) childcare but instead lifts, help with schoolwork and emotional support.

   2. The suggestion is that appropriate figures (for both twins) would be £5,000.00 to age 16 (i.e., for the first year after the trial) and £2,500.00 for each year thereafter to 18, thus £10,000.00 in all. The Defendant accepts this approach in principle but uses lower multiplicands: £3,000.00 for the first year and £2,000.00 for the second and third years leading to a total of £7,000.00. In my judgment, the appropriate figure is £8,500.00.

   3. I have addressed property maintenance already in the context of AB’s past services dependency claim where I awarded £300 per year for the services that GH would have provided by way of property maintenance. The difficulty in relation to the twins is that they are at present only 15 years old, they are unlikely to buy a property for some years, and even if they do there is no guarantee that they will purchase properties sufficiently close at hand that GH could have assisted with property maintenance. I am prepared to order only one half of the amount which I ordered for AB, namely £150.00 per twin per year for a period of five years, commencing, as suggested 10 years after trial (when the twins were likely to have purchased properties), i.e., £1,500.00 in all. So far as AB is concerned, bearing in mind the property maintenance already allowed in the past services dependency claim, I allow only a further two years at the rate of £300.00 per year already allowed, and therefore £600.00.

   4. The amounts I award for the future services dependency claims are accordingly:

The twins

AB:

Overall

1. 1. The awards I make overall (following the scheme of Mr White’s appendix) are as follows:

The total amount awarded is, therefore, £10,765.80 in respect of the claim on behalf of the estate (B, C and D) and £203,741.50 on behalf of the dependants.

1. These figures are, however, “in principle” figures; the sums awarded for future losses take no account of accelerated receipt. Some figures in relation to this were included in the parties’ Schedules and Counter-Schedules of Loss and in their skeleton arguments, but it was not clear to me that the calculations had been correctly or consistently done. I invite the parties to agree figures for this; in the event that there is a dispute, I will resolve it. The parties should also seek to agree interest (item J).

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This case is important and its consequences are discussed in my book, the 4th edition of Fatal Accidents, which is due to be published next month.

The case will also be covered in the courses on fatal accidents I am giving with Hilary Wetherell in November and December this year in London, Bristol and Manchester. Details are available here.