Isaac Hogarth of 12KBW discusses this case, in which he appeared for the successful 2nd Defendant in a strikeout application in the High Court. He was instructed by Estelle Machell and Clare Edmondson of Clyde & Co on behalf of Aviva Insurance Ltd.
Introduction
Keating (Birtles) v Abdisalan and Aviva [2025] EWHC 1926 (KB) was a decision of HHJ Bird (sitting as a judge of the High Court) in a strikeout application involving novel issues in the context of a fatal RTA.
The application considered the limits of the principle in Haxton v Phillips Electronics [2014] EWCA Civ 4 and, most pertinently, the question of whether, where two people who are mutually dependent suffer fatal injuries in the same accident, the estate of the person who dies later is able to bring a claim under the common law for the diminution in the value of the Fatal Accidents Act 1976 (‘FAA’) claim that person would have been able to bring had their life expectancy not been reduced as a result of the accident.
Facts
The claim arises from a fatal road traffic accident (RTA) which occurred on 20 February 2022. Mr and Mrs Birtles were pedestrians who were struck by a car driven by the 1st Defendant, an uninsured driver. The 2nd Defendant was the section 151 Road Traffic Act 1988 insurer.
Mrs Birtles died immediately. Mr Birtles died on 4 March 2022, some 12 days later, never having regained consciousness. They had an adult daughter who is the ultimate beneficiary of the claim.
Had he survived, Mr Birtles would have brought a large claim (pleaded at approximately £500,000) under the Fatal Accidents Act 1976 in respect of services that he would have received from his wife but for her death. He would also have brought a claim for bereavement damages.
The Claimant argued that, at the point of his wife’s death, Mr Birtles had a cause of action under the FAA, that the value of this claim would have been higher but for the injuries he himself had suffered, and he therefore had a common law claim against the 1st Defendant for the diminution in value of the FAA claim. In other words, his life expectancy had been significantly curtailed by the RTA as a result of the 1st Defendant’s negligence, and as a result of that, the value of the FAA claim was significantly reduced.
The Claimant argued that this claim had fully vested in Mr Birtles at the time of Mrs Birtles’ death, and that it therefore passed to Mr Birtles’ estate when he died 12 days later.
The argument was based on the decision of the Court of Appeal in Haxton v Philips Electronics UK Ltd [2014] EWCA Civ 4. In that case, the claimant was the widow of an electrician who had died from mesothelioma as a result of the defendant’s negligence. She then herself contracted mesothelioma from having washed her husband’s overalls. As a result of the reduction in her own life expectancy, this reduced the value of the FAA claim she would otherwise have been able to bring by £200,000. The Court of Appeal (reversing the first instance judgment) found that there was no “reason of principle or policy which should deprive the claimant from recovering damages which represent the loss she has in fact suffered as a result of the curtailment of her life by the admittedly negligent action of the defendant”. She was therefore entitled to recover damages for the diminution in the value of the FAA claim, as part of her personal action. The 2nd Defendant applied to strike out the claim by Mr Birtles’ estate representing the diminution in value of the FAA claim that he would have been able to bring had he survived as being wrong in law.
Arguments
The 2nd Defendant’s key arguments in summary were:
- In respect of the claim for bereavement damages, there was an express prohibition on this passing to an estate once a claimant died under 1(1A) of the Law Reform (Miscellaneous Provisions) Act 1934 (‘LRMPA’).
- The Haxton line of argument did not hold as the claim never vested. Given his own injuries, Mr Birtles would never have survived to suffer the loss of services for which his estate now claimed. The claim depended on a total fiction, and to allow it would be contrary to authority (and in particular the approach of the courts to claims for dependency per Williamson v Thornycroft [1940] 2 KB 658) and public policy.
- This was a species of lost years claim (i.e. a claim for a loss suffered during the period of lost life expectancy). However, there is no authority to support lost years claims being permissible in respect of services not received, and to allow such a claim would be to introduce a new category of lost years claims that would have gone against the jurisprudence in Gammell v Wilson [1982] AC 27 and would also be contrary to the objective sought by section 1(2)(a)(ii) of the LRMPA which excluded claims for lost years in respect of income (the only species of lost years claim recognised by the courts) from surviving death and passing to the estate.
Judgment
In his judgment handed down on 24 July 2025, HHJ Bird, sitting as a High Court Judge, held as follows:
- The claim for bereavement damages fell to be struck out. The effect of section 1(1A) of the LRMPA is that this cannot be passed on to the estate, and the judge was not persuaded that it was permissible to sidestep that prohibition by presenting the claim as one for diminution in the value of the civil claim that Mr Birtles would have been able to bring, rather than a direct claim under section 1A of the FAA.
- In respect of the much larger claim for diminution in value of the claim for loss of services in reliance on Haxton:
“26. As to the lost opportunity to bring a substantial claim for lost services in my view that claim must also be struck out. I prefer the arguments advanced by Hogarth for reasons I now set out.
27. First, I am satisfied that no such claim was vested in Mr Birtles when he died. At death he had suffered no loss (in the sense recognised by the law and beyond bereavement) as a result of the death of his wife. That is clear from the pleaded case. Mr Exall advances no claim to damages to loss of services in the 12 days Mr Birtles survived. If there was a claim at death it would be limited to those 12 days in accordance with the approach taken in Williamson v Thornycroft; if the matter came to trial the court would wish to ascertain what loss had actually been suffered. The court would not engage in a fictional exercise of assessing loss that has not been suffered.
28. Mr Exall’s reliance on Haxton is misplaced. Mrs Haxton was entitled to claim, as part of her personal injury damages, a top up of the award she had already received. The new claim was compensatory because it would reflect what would have happened had her life expectancy not been curtailed. Mrs Haxton’s loss in my view was suffered when she was awarded (or agreed to accept) dependency damages based on a reduced life expectancy. By the time she made her second claim (she remained alive at the Court of Appeal hearing) her loss was clear and in the past. The Court would simply have looked at the difference between the actual award and what the award would have been had she had a full life ahead of her. The judgment does not deal with that process because damages were agreed.
29. Mr Birtles’ case is different. Unlike Mrs Haxton his claim was based on losses he was yet to suffer. The true consequence of Mr Birtles’ death was that he had no opportunity to suffer the loss for which he claims damages. It would be wrong to compensate Mr Birtle’s estate for a loss which he did not in fact suffer. There has been no “diminishment” of his loss as there was in Haxton.”
Comment
This appears to be the first case seeking to rely on Haxton where the would-be claimant has died.
The difficulty which the Claimant faced was that, in circumstances where Mr Birtles had also suffered fatal injuries in the same accident as his wife, the alleged loss was entirely theoretical, as he was never going to survive to suffer the loss of services for which his estate sought to claim.
This was a species of lost years claim: a claim for losses that will be suffered during a period where the claimant is no longer living. The law does not recognise a claim for lost years in respect of services never received (as this is not a loss). Further, following several decisions of the higher courts, most notably Gammell v Wilson [1982], section 1(2)(a)(ii) of the LRMPA was amended (by the Administration of Justice Act 1982) to prevent claims for lost years in respect of income (the only claims for lost years recognised by the common law) to pass to an estate after a would-be claimant’s death.
It was submitted during the hearing that to widen the scope of Haxton in the manner sought by the Claimant would be to introduce a new category of lost years claims that would have gone against the jurisprudence in Gammell v Wilson and would also be contrary to the objective sought by section 1(2)(a)(ii).
The key point, however, was whether the action had vested in Mr Birtles such that it could pass to his estate.
The judge was clear in finding that it had not, that there was no loss, and that it would be wrong in principle to compensate the estate for losses Mr Birtles had not in fact suffered.
This is a relatively unusual situation but one which does arise from time to time. It is helpful to have a clear and concise judgment which confirms that the Haxton case does not apply to this scenario.
