PROVING THINGS 193: THE POSSIBILITY OF THE DECEASED PERSON HAVING INCREASED EARNINGS AND “LOSS OF CHANCE” CONSIDERED IN A FATAL CASE

In many ways the judgment  Young v Downey [2020] EWHC 3457 (QB) is an extraordinary case, involving a terrorist killing taking place in 1982. On the other hand it shows a principle of general application in the assessment of fatal accident damages. The court need not assume that the income of the deceased person would be static. In this case Mr Justice Martin Spencer applied the “loss of chance” approach to earnings and the financial dependency.

THE CASE

The claimant brought proceedings on behalf of herself and her mother following her father’s death in the bomb attack in Hyde Park in 1982.  The court had earlier made a direction under Section 33 of the Limitation Act allowing the action to proceed.

THE PERSONAL INJURY CLAIM

The court did not accept a claim by the claimant for damages for personal injuries. She was not present at the scene and did not come within any of the established categories for secondary victims. The court also did not accept that this was a case for exemplary damages. It did, however, make an award under the Fatal Accidents Act.

THE JUDGMENT ON FATAL ACCIDENT ACT DAMAGES

In relation to the fatal accident claim, an award was made for pain and suffering prior to death.  The issue of dependency damages involved an assessment of the percentage changes of the deceased person gaining promotion within the army coupled with a consideration of their likely earnings once they had finished their term of engagement.

The claim for the deceased’s pain and suffering prior to death

    1. The Claimant seeks an award for the deceased’s pain and suffering prior to death, such an award being recoverable on behalf of the deceased’s estate under the Law Reform (Miscellaneous Provisions) Act 1934. Miss Studd refers me to the Judicial College Guidelines which provide a bracket of between £1290 and £2620 for immediate unconsciousness/death within one week. She suggests a figure of £1750. I accept that suggestion and award damages of £1750 under this head.
The dependency claim
    1. The dependency claim under the Fatal Accidents Act 1976 is made by the Claimant on behalf of herself and her mother: although there is a further dependent, the Claimant’s younger sister, she has indicated that she does not wish to make a claim.
    2. At the time of the deceased’s death, he was a soldier aged almost 20 who had joined the army at age 16¾ and had been promoted from Private to Lance Corporal. An assessment of the dependency claim involves consideration of the deceased’s likely career but for his untimely death, both within the army and after leaving the army. My consideration of these matters has been made considerably easier by the impressive report from Mr Craggs. Miss Studd, on behalf of the Claimant, accepts that the claim should be based on loss of a chance, with the assessment of lost earnings being made in accordance with the approach of the Court of Appeal in Langford v Hebran [2001] PIQR Q13.
    3. Mr Craggs explains that the full non-commissioned rank structure in the army is:
  • Private
  • Lance Corporal
  • Corporal (known in the Household Cavalry as “Lance Corporal of Horse”)
  • Sergeant (known in the Household Cavalry as Corporal of Horse)
  • Staff Sergeant (known in the Household Cavalry as Staff Corporal)
  • Warrant Officer Class II
  • Warrant Officer Class I
    1. The deceased enlisted as a Junior Entrant into the army in April 1979 aged about 16¾ and at age 18 he would have committed to serving a minimum of either three, six or nine years. Although the deceased’s service records showing his minimum commitment are not available, Mr Craggs says that from his experience of training Junior Entrants in the 1980s, most would commit to 9 years and I shall assume that to have been the case which would have given him a potential End of Engagement Date (EED) of 26 July 2002 (that is, 22 years’ service from age 18 to age 40) with a commitment to serve at least until 26 July 1989. Thus, it seems to me appropriate to assess the dependency on the basis of a 100% certainty that the deceased would have remained in the army until 26 July 1989, having served nine years.
    2. The next question concerns the chance that the deceased would have remained in the army for a further three years to the 12-year point. At Appendix 2 to his report, Mr Craggs reproduces statistics produced by Defence Statistics on the chances of a soldier completing various lengths of service and from that data he has extrapolated a table giving the chance of further service to various leaving points for a soldier who has completed nine years’ service. On the basis of the statistics, a soldier in the Household Cavalry who has completed nine years’ service has a 75% chance of completing 12 years’ service, a 50% chance of completing 18 years’ service and a 44% chance of completing 22 years’ service. However, as Mr Craggs comments, the statistics are taken from data spanning all employment, levels of ability and ranks within the Household Cavalry and therefore care must be taken in the direct application of them to individual cases. At paragraph 2.8 of his report, Mr Craggs points to important factors governing the decision whether or not to stay on in the army:
“Mr Young was enrolled into the Armed Forces Pension Scheme 1975 under which soldiers who leave aged 40 or over and after serving 22 years or more receive an immediate pension and tax-free lump sum. Soldiers who leave before that point receive a deferred pension from the age of 60 while those who leave before their pension point but with a minimum of 12 years’ service are eligible for a tax-free Resettlement Grant on discharge (currently £14,123). In my experience this tax-free payment often acts as an incentive for soldiers to stay in the army to at least the 12-year point while the prospect of an immediate pension acts as a significant financial incentive to serve to the end of the 22-year engagement.”
It seems to me that the tax-free Resettlement Grant on discharge would have been a powerful incentive to the deceased to remain in the army for the extra three years and I assess the chance of the deceased completing 12 years’ service as being 95%.
      1. The next question concerns the chance of the deceased completing the full 22 years’ service to age 40. Three factors appear to me to be powerful indicators in this regard. First, having enlisted at age 16¾, life in the army was all that the deceased wanted or knew – he was an army man through and through. Secondly, he was successful in the army: promotion to Lance Corporal occurs on average after five years’ service, but the deceased had achieved promotion within 2½ years indicating that his career was on an upward trajectory. Thirdly, I consider that the tax advantages would have been a powerful incentive for the deceased to stay on for the full 22 years: he would have received his pension and tax-free lump sum at age 40 rather than at age 60 had he retired from the army earlier. For these reasons, I consider that the chance of the deceased completing his full 22 years’ service would have been 75%.
    1. Next, it is necessary to consider what the deceased would have achieved by way of promotion in his lost career in the army. This is considered in detail by Mr Craggs, all the time acknowledging that he had not seen the deceased’s appraisals and was therefore unable to provide an opinion on how he might have been ranked on the basis of his annual reports. He states:
“2.21 However, Mr Young had already been promoted to Lance Corporal and I understand this occurred in October 1981, after around 2 ½ years’ service. This is significantly ahead of average rates and on this basis in my opinion it is reasonable to assume that Mr Young was likely to have been judged “Above Average” as a junior rank and in my opinion he is likely to have been promoted to Corporal after around seven years’ total service, i.e. around April 1986. … Accordingly if Mr Young had left the army after nine or 12 years reckonable service aged 27 or 30 he would have done so in the rank of Corporal.
2.22 if Mr Young had served beyond age 30 years than in my opinion on the balance of probability he would have been promoted to sergeant after around 13 years’ total service, i.e. around April 1992. If he had continued in service and assuming he was judged “average” in his SNCO peer group then in my opinion on the balance of probability he would have been promoted to Staff Sergeant after around 17 years total service, i.e. around April 1996.”
I accept these predictions and therefore I accept the calculations made by Mr Faull based upon them.
    1. Finally, there is an issue as to whether, upon retirement from the army, the deceased would have achieved median earnings or upper quartile earnings. Mr Craggs states that, during their service, individuals undertake a significant amount of training which is often significantly more than an individual may receive in civilian employment. In particular, they will undertake leadership and management training much of which is linked to qualifications awarded by bodies such as the Institute of Leadership and Management or the Chartered Management Institute. Most soldiers are required to drive as part of their role and a significant majority will undertake Large Goods Vehicle (LGV) driver training: Mr Craggs considers this to be virtually certain. Popular choices for work after leaving the service are jobs in security, LGV driving jobs, work in supervisory and management and in health and safety. Mr Craggs says:
“In my experience and opinion Mr Young would have had a wide range of civilian employment options on leaving the army, particularly leaving as a staff sergeant. Depending on when he left the army he would have had 27 to 40 years working life to state pension age (67 for Mr Young). In my experience and opinion it is reasonable to assume he would have worked for the vast majority, if not all, of that period.”
    1. On the basis of the above evidence, I consider it likely to the point of certainty that the deceased would have achieved earnings in the median bracket, with a 50% chance of achieving upper quartile earnings.
    2. The second part of the equation in the calculation of the dependency comprises the calculations carried out by Mr Faull using the data derived from the report of Mr Craggs. For the purposes of those calculations, Mr Faull was instructed to assume that but for her father’s death the Claimant would have attended University and graduated in June 1999. He was further instructed to assume that the Claimant would have remained dependent on her father up to and including 31 August 1999 when the Claimant would have been 21.63 years old. Whilst I would question the assumption that the Claimant would have attended University given the evidence contained in the report of Dr Cooling about her academic record, nevertheless, given that there was a younger sister, I am content with the date of 31 August 1999 as the date for the end of the dependency. This has implications for the Harris v Empress Motors calculation whereby, conventionally, 75% of income is used for the dependency where there is a spouse and dependent child whilst 66.67% is used for a spouse only.
    3. Mr Faull has made his calculations upon the basis that the deceased would, but for his death, have received income from the following sources:
  • earnings from employment within the army;
  • earnings from civilian employment following discharge from the army;
  • pension benefits from membership of the Armed Forces Pension Scheme;
  • Resettlement Grant from the army (dependent on length of service); and
  • state pension.
    1. Inevitably, given that Mr Faull did not know the basis upon which the court would decide that the dependency should be calculated, nor the percentage probabilities representing the chance of the deceased remaining in the army, he has had to set out alternative scenarios relating to the deceased expected army career but for his death. Scenario 1 considers discharge from the army after 9 years’ service; scenario 2 considers discharge from the army after 12 years’ service; and scenario 3 considers discharge from the army after 22 years’ service. Mr Faull has assumed that within scenarios 1 and 2 the deceased would have been promoted to the rank of Corporal on 1 April 1986 and would have retained that rank to the date of discharge. Within scenario 3, he has assumed further promotion to the rank of Sergeant on 1 April 1992 and then promotion to the rank of Staff Sergeant on 1 April 1996. Those assumptions are fully in line with the opinion expressed by Mr Craggs and I accept that they are reasonable for the purposes of the calculations.
    2. So far as employment following discharge from the army is concerned, Mr Faull considered it reasonable to assume under scenarios 1 and 2 that, following a short period after the expected discharge, the deceased would have commenced civilian employment earning at the median level of male full-time earnings, as indicated by Mr Craggs. Again, I consider this to be a reasonable assumption. However, in relation to scenario 3 (discharge after 22 years’ service) Mr Faull has considered two alternatives (“A” and “B”) representing median earnings and upper quartile earnings.
    3. For the purposes of this judgment, it is unnecessary for me to recite in detail Mr Faull’s methodology and the way in which he has made his calculations. Suffice to say that his methodology is familiar to me and I consider it to be wholly in line with conventional practice and existing authority. One matter does need to be considered, however: in making his calculations, Mr Faull has had to make assumptions on the multipliers to be adopted. He has done so whilst acknowledging that it is not his prerogative to advise on multipliers and that the appropriate multipliers are a matter for the court. Again, though, I consider that the multipliers which Mr Faull has used are wholly reasonable and represent the multipliers which I would have reached by way of independent assessment. I therefore endorse the suggested multipliers set out at paragraph 3.41 of Mr Faull’s report and the calculation thereof in the appendices to the report and in particular appendices 42 and 44.
    4. At appendix 1 to his supplementary report, Mr Faull has set out the summary of the claim for loss of dependency on income within the four scenarios (1, 2, 3A and 3B). This is:
(i) Scenario 1 (9 years’ service, median civilian earnings)  
Loss of dependency to date of trial: £269,635
Future loss of dependency: £200,600
  £470,235
   
(ii) Scenario 2 (12 years’ service, median civilian earnings)  
Loss of dependency to date of trial: £274,497
Future loss of dependency: £220,633
£495,130
   
(iii) Scenario 3A: (22 years’ service, median civilian earnings)  
Loss of dependency to date of trial: £392,633
Future loss of dependency: £333,993
  £726,626
   
(iv) Scenario 3B (22 years’ service, Upper Quartile civilian earnings)  
Loss of dependency to date of trial: £479,373
Future loss of dependency: £369,786
  £849,159
    1. To these calculations, the percentage chances set out at paragraphs 45, 46 and 49 of this judgment need to be applied. In accordance with Langford v Hebran, I use what Mr Faull refers to as the “additional claim” method, applying the appropriate percentage to the additional amount represented by each enhanced scenario.
(i) The base sum under scenario 1 is £470,235.
(ii) The additional sum under scenario 2 is £24,895 (£495,130-£470,235). Applying the percentage chance of achieving this additional sum (95%) the additional sum recoverable under scenario 2 is £23,650.
(iii) The additional sum under scenario 3A is £231,496 (£726,626-£495,130). Applying the percentage chance of achieving this additional sum (75%) the additional sum recoverable under scenario three is £173,622.
(iv) The additional sum under scenario 3B is £122,533 (£849,159-£726,626). Applying the percentage chance of achieving this additional sum (50% x 75% = 37.5%) the additional sum recoverable under scenario 3B is £45,950.
The total recovery for loss of dependency is accordingly £470,235 + £23,650 + £173,622 + £45,950 = £713,457.
      1. As submitted by Miss Studd, apportionment of this sum involves a consideration not only of an amount for the Claimant when she was still a child but also compensation for the money that would have been spent on her in the course of her adult life. It is impossible to carry out an apportionment other than through a somewhat rough and ready percentage approach. I consider that the appropriate percentages are 25% to the Claimant and 75% to her mother. Those percentages should apply to any and all
money recovered from the Defendant in this case. Accordingly, the sum payable to the Claimant is £178,364 and the sum payable to the mother is £535,093.
Conclusion
  1. In conclusion, the total sum of damages which I award is £715,207 comprising £1750 in respect of the Law Reform Act claim and £713,457 in respect of the dependency claim. The dependency claim will be apportioned as to £178,364 to the Claimant and £535,093 to the Claimant’s mother.