FATAL ACCIDENT ACT DAMAGES: THE DANGERS WHEN A JUDGE DOES NOT FOLLOW THE ESTABLISHED APPROACH: CLAIMANT’S APPEAL AGAINST “OFF PISTE” METHODOLOGY ALLOWED

June 10, 2024 · by · in Appeals, Damages, Fatal Accidents

In Price v Marston’s PLC [2024] EWHC 1352 (KB)  Mr Justice Griffiths overturned a trial judge’s assessment of fatal accident damages because there was a failure to follow long established principles of calculation of loss.  The case is an important example of why the established case law on this topic should not be ignored.

 

 

“… this does not mean that the court should start from scratch and ignore the tools that earlier cases have provided to accomplish a task which is necessarily based on counter-factual and hypothetical speculation about what would have happened if the fatal accident in question had not occurred. The point of actuarial and statistical tools such as those based on the Ogden tables and of the two thirds / one third rule of thumb is that they counterbalance the uncertainties that would exist in a single case, were it to be looked at in isolation, by averaging over countless examples from other similar cases in order to produce a result which is reliable notwithstanding the uncertainties of the case. It is precisely because the task is difficult and speculative that these tools have been developed, and are of such value. They are not, lightly, to be discarded, especially if an unconventional approach leads to a result which does not seem correct or fair.”

WEBINARS ON FATAL ACCIDENT DAMAGES

On the 30th July I am presenting a webinar “Recent Cases in Fatal Accident Litigation – what can we learn from them?”  The webinar looks at recent cases in relation to liability, quantum and damages involving fatal accident victims.

It considers what litigators can learn from those cases and the practical implications going forward.

Issues to be considered include:

  • Future career prospects of a deceased person
  • Future career prospects of a dependant
  • A second action when a settlement was not approved

Booking details are available here. 

THE CASE

The judge was hearing an appeal in a fatal accident case.  The claimant was the widow whose husband had died as a result of an accident at work.  Liability was established at trial. Both parties appealed, the defendant on the issue of liability and the claimant on damges. The defendant’s appeal against the finding of liability was refused. The claimant’s appeal about the appropriate multiplier was allowed.  The claimant’s second ground of appeal in relation to the quantification of fatal accident damages was also allowed. Here we are concerned with that second aspect of the claimant’s appeal.

 

THE APPEAL IN RELATION TO THE CALCULATION OF FINANCIAL DEPENDENCY

The judge used a method of calculation that assessed the claimant’s loss at £10 a week. In doing so he did not follow the long-established method of calculating fatal accident damages. This involves the aggregation of income of a couple and then discounting the joint income by a percentage to take account of the (obvious) fact that the deceased person is not incurring expenses.

THE JUDGMENT ON THIS ISSUE

 

    1. Mrs Price’s Update Schedule of Loss dated 28 October 2021 (Bundle tab 20) put her loss of financial dependency claim on the basis of a net annual loss of income calculated from the figures at the date of Mr Price’s death on 23 April 2015 when he was aged 59.

 

    1. Para 4.4 put the net annual loss figure at £9,486.85 (Bundle p 377), calculated as follows:

 

i) Mr Price’s income from employment at the date of death: £18,130.28 per annum.

ii) Mrs Price’s “approximate income from benefits” at the date of death: £7,800 per annum (£300 per fortnight).

iii) Adopting “a conventional dependency apportionment… following the principles of Coward v Comex [1998], namely to assume that the Deceased would have retained one third of his own and the Claimant’s joint net income for himself personally and two thirds would have been used personally by the Claimant for their joint household expenses” (Counter Schedule of 28 October 2021 at para 4.4.1),

a) Two thirds of joint net annual income of (£18,130.28 + £7,800) = £17,286.85;

b) Deduct the Claimant’s net annual income of £7,800;

c) Result: a net annual loss of £9,486.85 and a total claim for loss of financial dependency to the assumed date of trial of £59,814.59.

    1. Para 4.4 claimed loss of financial dependency to the assumed date of trial (which was then 20 January 2022) accordingly (but discounted by 0.97% to reflect the possibility of Mr Price dying before the trial date for other reasons, and enhanced by interest at half the special account rate from the date of death).

 

    1. For the period after the assumed date of trial, para 4.6 of the Updated Schedule said:

 

“It is assumed that the Deceased would have retired on 5th June 2021 which would have been his 66th birthday.

It is anticipated that upon his retirement the Deceased would have been paid in an equivalent sum to his pre-accident income and that upon her retirement the Claimant’s statutory income will be paid in an equivalent sum as her pension. The net equivalent annual loss will likely be £9,486.85.”

    1. Para 4.6 therefore used the same figure of £9,486.85 per annum for the claim after trial, multiplied by 15.66, producing a claim for loss of financial dependency after retirement and after the assumed date of trial of £9,486.85 x 15.66 = £148,564.07. An essential component of this figure was the benefits income received by Mrs Price.

 

    1. Immediately after the 3-day trial on 12-14 December 2022, Mrs Price served a further Update Schedule of Loss dated 16 December 2022 (Bundle tab 21) which made no change to the calculation of financial dependency, save to substitute the known trial date of 12 December 2022 for the previous estimated trial date of 20 January 2022. This altered the period of time over which the pre-trial calculation applied, and it also altered the multiplier for the post-trial period to 12.96 (including a PNBA Table F discount of 0.94), but it was otherwise identical in every material respect, including the base annual figure of £9,486.85.

 

    1. Marston’s served a Counter Schedule dated 18 November 2021 (Bundle tab 22), which was un-amended when the trial began on 12 December 2022.

 

    1. In relation to the calculation of loss of financial dependency to trial, it said (p 5 para (iv), Bundle p 396):

 

i) “In terms of general application the claimant is put to proof in relation to retirement [i.e. of Mr Price] at age 66.”

ii) “The calculation is based upon an approximation of benefits received [i.e. by Mrs Price]. If £300 is received every fortnight the received figure is 365/14 x £300 = £7,821.43.”

iii) It noted that the witness evidence did not rule out a return to work by Mrs Price. This point has not been pursued, however, and is not relevant to the appeal.

iv) It said “The defendant calculates the net annual loss (without return to any earnings and the benefits remaining static) as £9,479.71”. A rise in benefits was not, therefore, suggested.

v) It concluded: “The defendant agrees the loss claimed of £59,814.59.”

    1. In relation to the calculation of loss of financial dependency after trial and after retirement (p 6 (vi), Bundle p 397), it said:

 

i) “The claimed head of loss is not understood. It is claimed that upon retirement the deceased would have been paid the same.”

ii) “This head of loss needs to be clarified.”

iii) “At the date of calculation the deceased would have reached 66.63 years.”

iv) Marston’s also modified the post-trial multiplier on the basis of the life expectancy evidence of its own expert, Dr Bodansky, to 7.44.

    1. At the trial, Mrs Price gave evidence that Mr Price intended to work as a chef until “at least” the statutory retirement age of 66, although not necessarily for the same employer (witness statement para 44, Bundle tab 23). She gave evidence that she had herself, for health reasons, not worked since 2014 and was receiving only benefits “amounting to approximately £300.00 per fortnight” (witness statement para 46). In cross examination, she said that, after retirement, “he would probably have done a part-time job because he was very active. Very fit.” (Transcript p A39, Bundle tab 8). In relation to benefits, she was not challenged on the £300 figure at the date of Mr Price’s death in 2015, but she was asked about the position at the date of trial in 2022 and she accepted “that’s increased now” (Transcript p A40).

 

    1. In re-examination of Mrs Price by her own Counsel, the judge noted that he had been given increased figures of £400 for Personal Independence Payment and £280 for Employment and Support Allowance, which Mrs Price agreed, although “Not exact. I can find that out for you.” (Transcript p A41). She was asked (still in re-examination, this not being a point which had been explored with her in cross-examination) when the increase occurred and she said it was two years before, because she had given up her car then (Transcript p A41). I am told by Mrs Price’s Counsel that the benefits increased to reflect the change in her own needs when she no longer had her own car. The submission to me on behalf of Mrs Price is that this rendered her no better off overall: the increase in state benefits offset the loss of her use of her own car.

 

    1. It will be recalled that, after the trial hearings on 12-14 December 2022, the judge requested and received closing submissions in writing.

 

    1. The Closing Submissions on behalf of Mrs Price (dated 5 January 2023, Bundle tab 10) dealt with loss of financial dependency at para 44.m. and o. as follows:

 

“m. Past loss of financial dependency is claimed in the sum of £71,458.15 inclusive of interest at half the special account rate. The calculation for loss of financial dependency should be based on the income of the Deceased and the income (from benefits) at the time of death. The Defendant agrees the previous figure for past loss of financial dependency but makes no admission in respect of interest. The Court is invited to award the full sum claimed of £71,458.15 for this head of loss.

(…)

o. Future loss of financial dependency is claimed in the sum of £122,949.58. Within the corrected multiplier, this equates to £121,526.55. The calculation for loss of financial dependency should be based on the income of the Deceased and the income (from benefits) at the time of death. The Defendant did not properly challenge the basis of the claim in cross examination. Within the Counter-Schedule of Loss the Defendant has failed to properly address this head of loss and should be deemed to have agreed the Claimant’s claim. The Court is invited to award the sum of £121,526.55 for this head of loss.”

    1. Marston’s written closing submissions dated 5 January 2023 dealt with loss of financial dependency at paras 94-98. They did not challenge the original figure for Mrs Price’s benefits of £300 per fortnight, but highlighted the evidence that this figure had increased “to somewhere nearer £700 at some point undefined” (Closing Submissions footnote 9), saying “This is highly relevant because it is the determinant of any reliance on income” (Closing Submissions para 95). They said that the figure in Marston’s Counter Schedule “is withdrawn” and submitted that the claim for financial dependency therefore failed “on evidential burden grounds” (para 98). The logic of that submission was (as the Closing Submissions argued) that no loss should be awarded, but that position is not maintained on appeal. Marston’s position on appeal is simply that the judge’s assessment of financial dependency should stand.

 

    1. In response to that, written Further Submissions on behalf of Mrs Price dated 18 January 2023 said loss of financial dependency could be inferred or presumed from the facts of the case and evidence upon which to assess it had been presented. “The starting point is the income of the Deceased and the Claimant at the time of death” (para 16.d.) and “In any event, the Court is required to do its best to assess the extent of the loss; see Thompson v Smith Shiprepairers (North Shields) [1984] QB 405″. The judge was referred to relevant sections of the Ogden explanatory notes in PNBA Facts and Figures 2022/23.

 

The Judgment and the Order on Issue 3

    1. The Judgment dealt with the claim for financial dependency at paras 10-11 and 51.

 

    1. At paras 10-11 it said:

 

“10. I accepted that Mrs Price was honest in her evidence about earnings and benefits, however I did consider that her evidence was given on the basis of approximations and estimates on the subject of her benefits. Mr Price, at that stage was earning approximately £350 per week net (this has been calculated as an annual figure of a little less than that amounting to £18,130.28 net). He was the main earner and was also a carer for his wife at the time of his fall. Mr Price, was expected to change employment before retirement at 66 but would have probably earned at a similar level because he was a Chef. Mrs Price told me that she thought that Mr Price, on retirement would earn a similar amount to when he worked because she expected that he would have earnings from a part time job along with receiving his pension. I am convinced that this was the intention and expectation given his work ethic. However, I consider that the general risks in life could have prevented these intentions reaching fruition.

11. Mrs Price had stopped work in 2014 due to her health and in 2015 she was in receipt of benefits amounting to approximately £300 per fortnight. In her evidence to me she indicated this this had now increased and approached £680 per fortnight in various benefits, this had changed approximately 2 years before the hearing.”

    1. The Judgment then drew the following conclusions on loss of financial dependency, at para 51:

 

“51. There is a claim for financial dependency. The Defendant argues that the evidential basis for such a claim is not made out due to but the Claimant contends a level of loss can be quantified from other facts. I have found that in 2015 she had benefits of approaching £300 per fortnight, however this had increased to a figure close to £680 per fortnight a change approximately 2 years before the hearing. I am persuaded by Mr Payne that this is not a proper basis for an accurate quantification of financial loss as this is information that could have been accurately obtained from the DWP. However, equally common sense tells me that, as the Claimant has been in receipt of benefits and remains in receipt of benefits, there is an upper limit on how much she would receive in those benefits. That upper limit would not equate to the amount earned by Mr Price and as such she has proved that there is some loss. On that basis I consider that given the approximations involved in her evidence I should make some award. It seems to me that the best basis for making such an award is to begin with the current figure for benefit of approximately £340 per week because that is the figure in which I have most confidence in. That figure would mean a £10 difference or an annual figure of £520. In my judgment, given that there would have been a period of lower benefits, and rates would have increased annually in any event, that figure is the best I can do in respect of annual loss of financial dependency both for past and future losses.”

    1. Consequently, the Judgment proceeded on the basis of a loss of £350 per week earned by Mr Price less £340 per week received by Mrs Price in benefits, giving his net loss of £10 per week and his annual figure of £520, both before and after trial. This was much less than the figures in the schedules served by both sides assuming that the loss was not assessed (in accordance with Marston’s submission) at nil on the basis of the burden of proof. It departed from the two thirds / one third analysis of joint income which had been urged upon the judge, following well-known authorities, on behalf of Mrs Price.

 

    1. The Order appealed from in this case is dated 18 August 2023 (“the Order”). This pre-dates the formal handing down of the Judgment on 5 September 2023, but arose from the hearing on 25 July 2023 when the Judgment had been circulated in draft and oral submissions were made (as recorded in the July Transcript).

 

    1. The Order does not break down the award for loss of financial dependency at all. For example, it does not distinguish between the loss until the date of trial and the loss after trial, and it does not identify any multiplicand or multiplier. It does not identify a retirement date and it does not explain what sum, if any, is awarded between the suggested date of retirement at age 66 (which preceded the trial), and age 73, or until Mr Price’s projected death at age 76 (in 2031) based on life expectancy as found by the judge. In the Order, “Loss of financial dependency” for the whole period after Mr Price’s actual death on 23 April 2015 is ordered in a lump sum of £6,357.79 (para 1.3.3).

 

Submissions after circulation of the Judgment in draft

    1. After the Judgment had been circulated in draft on 3 March 2023, the judge received both written and oral submissions on the loss of financial dependency claim before he formally handed it down on 5 September 2023 (and before he made his Order dated 18 August 2023). None of these are referred to in the Judgment.

 

    1. On behalf of Mrs Price, written “Points Arising from the [draft] Judgment” dated 20 March 2023 were filed, which queried the treatment of loss of financial dependency and the judge’s figure of £10 per week and £520 per annum. At para 3 it said:

 

“The Claimant is unsure how this figure was derived. As a point of principle, case law has established that the approach to be adopted is to look at the combined income (of the Deceased and the dependant partner) and not just the difference between the respective incomes; see Harris v Empress Motors Limited [1984] 1 WLR 212 and approved in Coward v Comex Houlder Diving Ltd (18 July 1988, CA); see also the Schedule of Loss.”

    1. It then provided worked calculations of this conventional approach, producing a figure of £41,124.74 as past loss of financial dependency to the date of trial on 12 December 2022 and a figure of £25,217.19 from the date of trial to age 73 – a total of £67,032.83 (including interest in respect of the claim before trial).

 

    1. Mrs Price’s “Points Arising” also queried whether the judge had awarded any loss after age 73 and, if not, why not. It said (at para 3.g.iv.):

 

“…it is not clear to the Claimant what loss is provided for from the Deceased’s 73rd birthday until his anticipated date of death at age 76.5 years, as he would still have been in receipt of his pension. The remaining multiplier for life would be 3.06 (This is derived using Ogden table 36, 76.5 years – 67.52 years – 8.98 years, which provides a multiplier of 9.08. Then the 5.48 multiplier for the period 67.52 years to age 73 years has to be subtracted, which – 3.60. This then is discounted by 15% as per paragraph 50 of the Judgment).”

    1. Helpfully, this calculation was applied to the judge’s figure of £10 per week to age 73 (notwithstanding the submissions on behalf of Mrs Price that this was wrong) to produce the figure of £6,357.79. See Mrs Price’s “Points Arising” at para 3.h.-k. (on p 5 of the “Points Arising”) which worked out this figure as follows (with underlining in the original heading):

 

“If you work on out the dependency based upon a financial dependency of £10 per week, the calculation would be:

h. The annual loss becomes £520 net as set out at paragraph 51 of the Judgment.

i. Past loss of financial dependency = (£520 x 6.12) + (£520 x 1.52 x 0.85) = £3,854.24 + interest @ 1.68% (£64.75) = £3,918.99.

j. Future loss of financial dependency = (£520 x 4.69) + any additional figure from age 73 years using the multiplier of 3.06.

k. Total financial dependency becomes: £6,357.79 + any additional figure from age 73 years using the multiplier of 3.06.”

    1. This sum of £6,357.79 for “Total financial dependency” was the exact figure which the judge then inserted into the Order, as I have said, in relation to the whole claim for loss of financial dependency. It is implicit in the judge’s adoption of this figure that he was adopting Mrs Price’s calculation based on £10 per week in every respect. In particular:

 

i) He was adopting the multipliers and interest figures.

ii) He was awarding the loss in full (at £10 per week) for the whole period between the accident and age 73 years. He was not applying any discount for the possibility that Mr Price might earn less than his salary at the date of death before the age of 66, or between the ages of 66 and 73. Marston’s do not appeal that. They say that the judge’s figure of £6,357.79 should be maintained.

iii) He was awarding no loss at all for the period after age 73 years.

    1. Marston’s filed no written submissions in response to this.

 

    1. In June 2023, additional written submissions were filed (in advance of the hearing on 25 July 2023) by both parties, pursuant to an order by the judge on 17 May 2023.

 

    1. Mrs Price’s “Additional Submissions” dated 8 June 2023 again (but in more detail, and citing more authority) set out their conventional approach to the loss of financial dependency claim (paras 5-22) supporting the figures set out in the “Points Arising” document. They cited Cape Distribution v O’Loughlin [2001] EWCA Civ 178, Williams v Welsh Ambulance Services NHS Trust [2008] EWCA Civ 81, Harris v Empress Motors Ltd [1984] 1 WLR 212, Coward v Comex Houlder Diving Ltd (18 July 1988, CA), and various passages from Personal Injury Schedules – Calculating Damages (4th edition, 2018) and the Ogden tables in favour of this approach. They cited Piddock v Eastern Scottish Omnibuses Ltd [1990] 1 WLR 993 in support of applying the same 2/3 principle to the calculation of dependency on the deceased’s pension.

 

    1. Marston’s “Submissions”, on the other hand, dated 6 June 2023, emphasised the limited scope for protesting a judgment circulated in draft and, after referring to the pleaded case in the Schedules which I have quoted, reaffirmed Marston’s objection “to the approximation of benefits received” and criticised the divergence between Mrs Price’s Schedule figures and her oral evidence about later increases in benefit, and the lack of precision about “how much these benefits were and when they started (at the rate higher than mentioned in the Schedule of Loss)”. They acknowledged (in para 12) that Mrs Price had “pleaded the conventional apportionment (Coward v Comex)” but then said: “However, that approach is only appropriate when the figures are ascertainable”. Whilst acknowledging that the figures for loss of financial dependency was on Mrs Price’s case £70,305.15 for past financial dependency and £122,949.58 for future dependency “as claimed” (para 13), the Submissions said that the Claimant’s mathematical approach “can be departed from (in fact must be departed from) when there is insufficient evidence on which to base an accurate calculation” (para 18).

 

    1. Quoting the Judgment, Marston’s “Submissions” said (at paras 23-24):

 

“23. There were no findings of fact on the figures, instead more of a ‘feel’ about what the figures indicated and what would be reasonable in the circumstances of evidential sufficiency. That should not be revised now.

24. There were findings of fact on the following:

a. Life expectancy was 76.5 years.

b. There was a chance (unquantified) that Mr Price would not have worked to age 66.

c. He would not have worked beyond age 73.

d. The change of him not working until 73 should be discounted by 15%.

e. In any event there would have been winding down.”

    1. Citing Stanley v Saddique [1992] QB 1 CA, Marston’s “Submissions” argued that “there was no mathematical basis for anything other than a lump sum award given all the other uncertainty and lack of evidence” (para 25). They said that there was “no scope to vary” the court’s award of £6,357.79 (para 28). But, if the court nevertheless decided “to follow some mathematical process”, the “Submissions” suggested an alternative to Mrs Price’s calculations. They tentatively applied a reduction of 10% to the claim up to 66 years (paras 29-30), and an additional reduction of 15% to the claim between age 66 to trial and from trial to age 73 years (paras 31-32), resulting in a calculation (para 32) of:

 

a. Past loss

i. To age 66: £31,505.76
ii. 66 to trial: £6,520.80
iii. Total: £36,885.76

 

b. Future

i. Trial to 73 years £18,912

 

c. Past + Future = £55,798.65

    1. None of these submissions are addressed in the Judgment, as I have said.

 

Discussion at the July Hearing on 25 July 2023

    1. The July Hearing on 25 July 2023 took 90 minutes, and the July Transcript provides me with a verbatim record of everything that was said on that occasion. It is clear from the July Transcript that the judge had not been able to read let alone consider the written submissions, the accompanying caselaw or the other materials in advance, and that he did not always recall very well the relationship between the draft Judgment he had circulated and the submissions he had received on various points (July Transcript F1 lines 23-35; and, for example, F3 line 36 to F4 line 5). He explained that this was because of the weight of his commitments in other courts and hearings (which included the County Court, the Crown Court and the Employment Appeal Tribunal, F1 lines 20-22 and lines 32-35). He therefore conscientiously used the July Hearing to do his best to draw the threads together and review and reconsider the draft Judgment in the light of the submissions that had been made to him in writing by both parties. It was, however, a Herculean task given the technicality and complexity of the subject area, and he was not limited (as I am) to the issues raised on appeal, but was having to consider a range of points which it was being submitted to him required more detailed consideration than had been given to them in the draft Judgment.

 

    1. In relation to the loss of financial dependency claim, the judge was referred to Knauer v Ministry of Defence [2016] UKSC 9 at paras 16-17 (which in turn cite the speech of Lord Lloyd of Berwick in Wells v Wells [1999] 1 AC 345 at 379F-G) in support of the proposition that the Ogden tables should be regarded as the starting point in Fatal Accidents Act claims (and Mrs Price’s loss of financial dependency was a Fatal Accidents Act claim). Mrs Price’s Counsel made the point that the Ogden tables factor in risk using actuarial data, including “the risk that somebody will not carry on working” (July Transcript F6 line 2).

 

    1. Mrs Price’s Counsel took the judge to para 11 of the judge’s draft Judgment where he had referred to benefit increases a couple of years before the trial. He submitted, contrary to that approach, that “The starting point in the assessment of financial dependency is the position of the parties at the time of the death and the intentions of the parties at the time of the death. That is as set out at para 10 of my Additional Submissions”; and he cited Welsh Ambulance Services NHS Trust v Williams [2008] EWCA Civ 81 in support of that proposition. The Court of Appeal said in that case (per Smith LJ at para 50, with whom Lloyd LJ and Thomas LJ agreed):

 

“Judge Hickinbottom was right when he held that it was irrelevant that David and Sarah had made a success of the business. That was (…) because that financial benefit was irrelevant to the assessment of the dependency under section 3. He was correct when he said that nothing that a dependant (or for that matter anyone else) could do after the death could either increase or decrease the dependency. The dependency is fixed at the moment of death; it is what the dependants would probably have received as benefit from the deceased, had the deceased not died. What decisions people make afterwards is irrelevant. The only post death events which are relevant are those which affect the continuance of the dependency (such as the death of a dependant before trial) and the rise (or fall) in earnings to reflect the effects of inflation.”

    1. Mrs Price’s Counsel took the judge to extracts from Personal Injury Schedules – Calculating Damages (4th edition, 2018), highlighting its endorsement in a Foreword by Irwin LJ and its list of specialist authors and demonstrating the two thirds / one third approach to joint income as the default position for assessing loss of financial dependency (I too have been shown those passages) and emphasising the very limited circumstances in which the courts have agreed to depart from it, none of which (he submitted) applied to Mrs Price’s case.

 

    1. In the course of these submissions, the judge said (July Transcript F7-F9):-

 

“The difficulty I had, Mr Haines, and this remains the difficulty, I do not know what the loss to the claimant was. I have got nothing but rough ideas. I know she was trying her best and I think I have indicated there is an honesty there, but this was all approximations.

(…)

“I understand your argument entirely, Mr Haines. What I am having difficulty with, and I had difficulty right from the beginning, I would have expected in a case like this to have chapter and verse, particularly in a case of benefits. They can be so easily provided and obtained and in the end I was— Let’s put it in this way. I am looking at a position where at some point there were benefits of £300 per fortnight and at some point there was a figure closer to £680 a fortnight without being able to pin down either of those rates in any way and it was that difficulty that led me to, if you like, try and approach matters on the basis of approximations. It is how then I apply what are, as Mr Payne puts it, mathematical certainties to approximations.”

    1. Mrs Price’s Counsel responded to this by saying that this submission was wrong because

 

“…the Ogden Tables are not based upon mathematical certainties, they are based on actuarial approximations and they do the best they can in the circumstances. Mr Payne is looking at this from the wrong perspective, your Honour. The courts advise working upon a multiplier/multiplicand basis unless there is good reason to depart from it. There is no good reason in this case (…) The proper approach is to follow the relevant case law, not to depart from it. As I said, the case law as established since 1984 in Harris v Empress Motors Ltd [1984] 1 WLR 212, Coward v Comex Houlder Diving Ltd (18 July 1988, CA)…”

    1. The judge said “I have your argument on the point, so I do not think it is going to be strengthened by continuing on it.”

 

    1. In relation to that part of the loss of financial dependency claimed after pension age, the judge said “I have not dealt with work related pension at all, because I was not aware of any evidence of a work related pension”. Mrs Price’s Counsel conceded that “That was not put before the court about what benefit was obtained, because it was not relevant”, suggesting that the judge should, instead, have accepted evidence that Mr Price’s income would have continued “on about the same level”. The judge said that he had accepted that up to age 73, but “I could not, on the basis of the entirety of the evidence, accept it beyond that age.”

 

    1. Responding, Marston’s Counsel reiterated that the judge was right to be dissatisfied with the lack of information or precision about benefit rates and increases prior to the trial and Mrs Price’s Counsel was wrong to try and get him to change his draft Judgment in any way. He said that the judge was not required to adopt what he described as Mrs Price’s “mathematical approach” and that he should stick with the lump sum of £6,357.79 which he had awarded for the whole loss of financial dependency claim, because “You did your best on what you had available”.

 

    1. In reply, Mrs Price’s Counsel urged the judge to stick to the pleaded case from both sides and objected to Marston’s departing, now, from it. In answer to his opponent’s objection to the citation of further authorities, he said “If there are errors in the judgment then in order to avoid an appeal it is imperative upon counsel to flag these points up”.

 

    1. The judge then explained his response to the submissions he had heard, as follows (July Transcript F18-19):

 

“Yes. I am afraid nobody is going to feel very happy with me today. I am afraid, Dr Haines, that the reasons for me approaching matters as I did in those paragraphs was my level of discomfort with the evidence before me and it is on that basis that I came up with a figure that I thought I could come up with on the basis of the evidence that would reflect the evidence before me and what information was available. It is on that basis that I consider that I cannot really depart from that. I understand what you are saying about the case law, but it seems to me that this falls into the category of case which has an exceptional element to it and that exceptional element was the evidence that was provided. As such, it seems to me that if you have a point it is an appeal point and not one for me at this stage…”

    1. In relation to loss from age 73, he said:

 

“JUDGE: My position was that from 73 I had no real indication at all of what the loss would be.

MR HAINES: Thank you. So it is nil.

JUDGE: Yes. I have no evidence upon which I could come to a conclusion. I am sorry to put it as bluntly as that, but it seemed to me that is what it was.”

Discussion and decision on Issue 3

    1. I agree with Counsel for Mrs Price that the approach that he had put before the judge in relation to the quantification of the Fatal Accidents Act claim for loss of financial dependency (given that the judge found there was such a loss) was conventional and in accordance with high and long-established authority.

 

    1. Per O’Connor LJ (with whom Robert Goff LJ and Stephenson LJ agreed) in Harris v Empress Motors Ltd [1984] 1 WLR 212 at 216H to 217D:

 

“In the course of time the courts have worked out a simple solution to the similar problem of calculating the net dependency under the Fatal Accidents Acts in cases where the dependants are wife and children. In times past the calculation called for a tedious inquiry into how much housekeeping money was paid to the wife, who paid how much for the children’s shoes, etc. This has all been swept away and the modern practice is to deduct a percentage from the net income figure to represent what the deceased would have spent exclusively on himself. The percentages have become conventional in the sense that they are used unless there is striking evidence to make the conventional figure inappropriate because there is no departure from the principle that each case must be decided upon its own facts. Where the family unit was husband and wife the conventional figure is 33 per cent. and the rationale of this is that broadly speaking the net income was spent as to one-third for the benefit of each and one-third for their joint benefit. Clothing is an example of several benefit, rent an example of joint benefit. No deduction is made in respect of the joint portion because one cannot buy or drive half a motor car. Part of the net income may be spent for the benefit of neither husband nor wife. If the facts be, for example, that out of the net income of £8,000 p.a. the deceased way paying £2,000 to a charity the percentage would be applied to £6,000 and not £8,000. Where there are children the deduction falls to 25 per cent., as was the agreed figure in the Harris case.”

    1. This passage was cited with approval by the Court of Appeal in Coward v Comex Houlder Diving Ltd (18 July 1988, CA) and Ralph Gibson LJ (with whom Butler-Sloss LJ and Sir Edward Eveleigh agreed) added:

 

“Where both are earning and pooling their net earnings, application of the same principle requires that one-third of the joint earnings be treated as spent for the benefit of each and one-third for their joint benefit; and the justification for that is that a couple living together as a stable family are likely to divide their common resources fairly and equally. As O’Connor L.J. pointed out, the principle is always capable of being displaced by evidence. If the joint income is low, it is likely that more than a third will be applied to joint benefit. Next, a husband or wife may have special needs, or make special demands, which in fact require a larger share than can also be applied to the sole benefit of the other spouse. Further, when the joint net earnings are substantial, as they are in this case on the judge’s findings, part of the one-third proportion retained by either spouse for his or her sole benefit may in probability be retained for purposes which will eventually pass to the benefit of the other.”

    1. In Cape Distribution v O’Loughlin [2001] EWCA Civ 178 at para 14, Latham LJ said (although in a section of his judgment dealing with loss of services, rather than loss of financial dependency):

 

“…the court’s task in any case is to examine the particular facts of the case to determine whether or not any loss in money or in monies worth has been occasioned to the dependants and, if it determines that it has, it must then use whatever material appears to best to fit the facts of the particular case in order to determine the extent of that loss.”

    1. But this does not mean that the court should start from scratch and ignore the tools that earlier cases have provided to accomplish a task which is necessarily based on counter-factual and hypothetical speculation about what would have happened if the fatal accident in question had not occurred. The point of actuarial and statistical tools such as those based on the Ogden tables and of the two thirds / one third rule of thumb is that they counterbalance the uncertainties that would exist in a single case, were it to be looked at in isolation, by averaging over countless examples from other similar cases in order to produce a result which is reliable notwithstanding the uncertainties of the case. It is precisely because the task is difficult and speculative that these tools have been developed, and are of such value. They are not, lightly, to be discarded, especially if an unconventional approach leads to a result which does not seem correct or fair. This is a point made in Cape Distribution v O’Loughlin [2001] EWCA Civ 178, by Judge LJ (with whom Schiemann LJ agreed) at para 26:

 

“I merely sound the cautionary note that where the court is invited to adopt an unusual or unconventional approach in a case of this kind, an additional burden is imposed on the judge to ensure that the more conventional approach would not provide the fairest way to do justice between the parties, and, even if he is satisfied that it would not, he should stand back from the figure to which the unconventional approach had led him and examine whether it fairly reflected the practical realities of the case.”

    1. In this case, the judge rejected Marston’s submission that no loss of financial dependency had been proved, and he then had the task of quantifying it. The approach he took was not one suggested to him by either side, and it was not one which had any precedent in the caselaw, or which was based even on a modification of the approach (based on multipliers, multiplicands, the Ogden tables and the two thirds / one third rule of thumb) which had been demonstrated to him. In adopting his own approach, he produced a figure which was extraordinarily removed even from the figures proposed to him by Marston’s (if he rejected, as he did, their primary case that the award should be nil).

 

    1. Exceptions to the usual approach have been adopted in unusual cases, and upheld on appeal. An example cited to me was Stanley v Siddique [1991] 2 WLR 459 (CA) at 470G to 471A.

 

    1. This was not, however, an exceptional case.

 

i) The fact that Mrs Price was on benefits before and after the fatal accident was not exceptional.

ii) The fact that those benefits had risen some 7 or 8 years after the fatal accident in 2015 (a couple of years before the trial in December 2022) was not exceptional; all benefits have a tendency to rise over time, not least because of inflation.

iii) The evidence that, because she had given up her car, Mrs Price had swapped increased benefit for the loss of the benefit represented by the car, was not evidence of a windfall or significant change in her financial position overall.

    1. There is nothing in the Judgment or elsewhere in the case to support the judge’s observation at the July Hearing that “it seems to me that this falls into the category of case which has an exceptional element to it and that exceptional element was the evidence that was provided.” In context, he appears to be regarding the lack of precise evidence of benefit rises after the death as the exceptional element, but it was not an exceptional element on the facts of this case, and he did not at the July Hearing or in the Judgment explain why it should be seen as such. If the judge stuck to the conventional two thirds / one third calculation based on the figures at the date of Mr Price’s death, he did not have to concern himself with later increases unless they truly represented a departure from the ordinary run of circumstances incorporated into the usual assumptions, including assumptions about variations which are usual with the passage of time. No such departure was evident from the evidence he had heard. Therefore, it was not exceptional that he had not been provided with precise details about them.

 

    1. The Judgment was not altered substantially, if at all, between its circulation on 3 March 2023 and the hand-down on 5 September 2023, although important submissions had been made to the judge about the claim for loss of financial dependency, both in writing in March and June 2023, and orally at the hearing on 25 July, including submissions from both sides that the Judgment in its existing form left questions unanswered.

 

    1. The Judgment was contrary to established principle and required elucidation. The judge had called for additional submissions and those from Mrs Price (not directly addressed by those from Marston’s) cited the caselaw and established principle which the judge was bound to apply even if it had not been cited to him. The judge did not then make any change to the Judgment.

 

    1. Applying Greenwich Millennium Village Ltd v Essex Services Group plc [2014] 1 WLR 3517 [2014] EWCA Civ 960 at para 7, it is fair and right that I should allow the judge to speak further to what he was saying and why from the July Transcript.

 

    1. Even having done so, however, it does seem to me clear that he embarked on a course which was not justified. He departed from the established method and then complained that he did not have the evidence to allow him to do so reliably. That was a compelling reason for him not to depart from the established method in the first place.

 

    1. The appeal on Issue 3 must therefore be allowed.

 

    1. I do have considerable sympathy with the judge, who was in an unenviable position. He had a large number of issues to decide, many of them not challenged in this appeal. He was, understandably, not able to hear closing submissions and immediately deliver judgment at the end of the trial on 12-14 December 2022, and was then faced with the always difficult task of wrestling with written submissions filed over a number of months subsequent to that, followed by a period in which questions of permission to appeal and the order resulting from the judgment circulated in draft in March 2023 were being canvassed, including at the hearing of oral submissions in July 2023, well before he handed down the Judgment in September 2023. In the meantime, he was hearing other cases.

 

    1. It may seem harsh to hold the judge strictly to account on the loss of financial dependency issue when it was only one of a number of issues, none of them entirely straightforward, and most of them not challenged by either side on appeal. However, the parties are entitled to pick out a single issue and focus attention on it and, when they do, as they have in this appeal, it is the duty of the court hearing the appeal to focus on it also and see whether the Judgment on that issue withstands the appropriate level of scrutiny, bearing in mind the due deference that must always be given to a trial judge, and without expecting the judge to be explicit about every point, or mention every point, so long as his conclusion is rational, and supportable, and sufficiently explained by him. I have come to the conclusion that it does not withstand that scrutiny and does not pass that test.

 

    1. The question then arises about how the appeal on Issue 3 should be disposed of.

 

    1. Fortunately, a combination of the reasoning the judge did provide, and the reasoning which can be supplied from his adoption of Mrs Price’s calculations leading to the Judgment figure (or, rather, the figure in the Order which was made on the basis of the Judgment), points to a clear outcome.

 

    1. The judge’s figure for past and future loss of financial dependency (£6,357.79) incorporated Mrs Price’s multipliers and interest figures (see para 113 above). It did not adopt Marston’s submissions that there should be discounts, before age 73, to adjust (over and above the adjustments already incorporated into the standard tables) for an enhanced risk that Mr Price might have ceased work before the age of 66 or before the age 73 (see paras 118 and 119 above).

 

    1. The error in the judge’s calculation was that he based it on a figure of only £10 per week. The only correction that needs to be made, therefore, is to substitute for that figure the figures proposed by Mrs Price (para 110 above). This is because they were based on unchallenged figures taken at the conventional time, which was the date of death, and they were based, also, on conventional tools applied to those figures based upon life expectancy and other features (see paras 94 and 95 above). Although I have found that the judge underestimated the life expectancy, that does not matter at this stage of the exercise, because this calculation stops at age 73, which is within the life expectancy found by the judge, as well as the slightly increased life expectancy which I have concluded was correct (Issue 2). This produces, by way of loss of financial dependency until Mr Price reached the age of 73, a total figure of £67,032.83 including interest to the date of trial (para 110 above). Interest after trial was awarded by the judge at 7%, and I expect the parties to be able to agree the correct figure for that. Marston’s have not on appeal challenged the components of Mrs Price’s calculation supporting the figure of £67,032.83 and, as I have observed, their suggestion of additional discounts to reflect the chances of Mr Price ceasing employment before the age of 73 was not accepted by the judge and was not maintained before me.

 

  1. That leaves only the question of whether the judge’s finding that there was no loss after age 73 should stand. I have concluded that it should. This part of his decision was sufficiently reasoned both in the Judgment and, more clearly, in the July Transcript. Unlike the benefits position, which was put before him in the way that I have analysed, it was conceded at the July Hearing that the judge’s impression that he had not been given evidence of loss to Mrs Price flowing specifically from Mr Price’s future pension expectations was correct (see para 132 above and July Transcript F11 lines 2-4 and lines 16-18, F12 lines 6-9, F15 lines 22-23 and F19 lines 8-14). He was not bound to accept the general proposition that Mr Price’s earnings in employment would not have diminished at all when they were replaced, after age 73 (when the judge found as a fact that Mr Price would no longer have been in employment) by pensions of one sort or another. He did not, in fact, accept that proposition (Judgment para 10 and July Hearing F12 lines 7-9). He had not been given any evidence of what Mr Price’s pension would have been other than that. Therefore, he was entitled to reject the claim for loss of financial dependency after Mr Price’s hypothetical retirement from paid employment at the age of 73. The burden of proving the claim was on Mrs Price. It had not been discharged.
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