John-Paul Swoboda KC of 12KBW untangles statutory and case-law authority on fatal claims involving services and deputyship fees.

Introduction

Section 3(1) of the Fatal Accidents Act 1976 states:

“In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.”

If you were not born in Victorian Britain, that is not easy to understand. Prior to the Fatal Accidents Act 1846 there was no right at common law to bring a claim in respect of death. That changed with the Fatal Accidents Act 1846, after a series of rail accidents. Whilst the Act has been updated over the years, so that we now have the Fatal Accidents Act 1976, much of the original language remains. Hence the difficulty for people not born in the 19th century in deciphering its meaning.

A modern translation of section 3(1) is:

“In a claim, damages, other than damages for bereavement, may be awarded if the loss to a qualifying dependant results from the death.”

That is a wide provision: read literally, a dependant can claim for damages for any loss sustained resulting from the deceased’s death (apart from loss for bereavement). But the application of section 3(1) is not simple because, layered on top of this wide gateway, is case law which restricts and/or clarifies the scope of section 3(1). Perhaps surprisingly, given the 180-year history of this particular provision, the tussle over its meaning still continues to this day.

Burgess v Sikorski 

Burgess v Sikorski is the latest tussle on the scope of section 3(1). This case involved the death of Mrs Michelle Griffiths, a senior carer at a local care home who was knocked down and killed crossing a residential cul-de-sac. Liability was admitted subject to a 30% discount for contributory negligence. She was 53 at the time of her death. In her nuclear family she left behind her husband, Ian (a machine setter who was 61 at Michelle’s death), and two adult children, Aaron (who suffered from a moderate learning disability and reasonably well-controlled epilepsy) and Matthew (who suffered from a moderate learning disability). Both Matthew and Aaron lacked capacity in respect of managing their property and finances.

The learned judge, Aidan Eardley KC, sitting as a Deputy High Court Judge, had 6 issues to resolve at trial and had lay and contested expert evidence to consider. The judge awarded £1,501,588 as damages with the vast majority of the damages falling under the services dependency. There were, in my opinion, two contentious decisions made: (1) the differentiation in the approach to past services and future services, and (2) the award for deputyship fees. These are considered below.

(1) Is there a difference in quantifying past and future services?

The leading recent authority on the quantification of a services dependency under section 3(1) is Steve Hill Ltd v Witham [2021] PIQR P2 (CA). Nicola Davies LJ (with whom Stuart-Smith LJ and Sir Patrick Elias agreed) noted at §51-52:

What is in issue in a dependency claim under the FAA is the value of the services which the deceased would have provided had he not died. … It is the value of the services lost which requires assessment and compensation, not the value of how the dependant manages following the death. 

As against that, however, the judge determining the issue is not hidebound by any particular method or rate; the judge finds “the measure of loss appropriate to the facts of the case”. As stated in O’Loughlin v Cape Distributions Ltd [2001] EWCA Civ 178, there is no “prescriptive method” to be adopted in determining the dependency (§11, Latham LJ).

The judge in Burgess allowed gratuitous rates (derived from the NJC rates and allowing a 25% discount) for the past services dependency and commercial costs for the future services dependency. On the face of it, that is a problematic approach; why should the measure of loss change because of the date of trial, which is arbitrary?

The judge’s reason for differentiating between the basis of the past and future services dependency was that “according to H v S the Court can only compensate for past services that have actually been rendered (and no commercial services were used). That does not make it illogical to make provision for the future on the commercial basis.” That is, with respect, inconsistent with the proposition of law that in a FAA claim, it is the service which would have been provided on the counter-factual had the deceased not died which is being valued and not “how the dependant manages following the death” (see quote from Witham above). This point was made forcefully in Welsh Ambulance Services NHS Trust v Williams [2008] EWCA Civ 81:

“…  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.”

H v S [2002] EWCA Civ 792 (which the learned judge in Burgess cited in support of his approach) is a case concerning a dependency by children on their mother, where an ex-partner and step-mother, subsequent to the death stepped into the mother’s role. Kennedy LJ concluded that the support provided by the ex-partner after the death is to be disregarded, pursuant to section 4 of the 1976 Act, “both in the assessment of the loss and in the calculation of the damages.” That is entirely in keeping with all the authorities cited above. It is, in my opinion, also inconsistent with the judge’s reason in Burgess that “according to H v S the Court can only compensate for past services that have actually been rendered”.

However, Kennedy LJ in H v S did go on to state that damages could only be awarded on the basis that they were used to reimburse the voluntary carer for services already rendered and to pay for such services in the future. In my opinion, there is tension between the two propositions of Kennedy LJ: if one ignores the support provided by the ex-partner, why should it be recovered on trust for the ex-partner? The best way, in my view, to resolve the tension is to conclude that the assessment of loss must still reflect the loss incurred but that the Court will look to the reality of the situation to determine who the dependant is (in this case the recovery was made on behalf of the child, to whom care was being provided, but the loss was really that of the ex-partner and step-mother who were providing the replacement services).

Nevertheless, however, one resolves the tension, I would respectfully suggest that H v S provides no support for differentiating between past and future on the basis that the Court can only compensate for past services which have actually been rendered. Such approach is also contrary to Witham and Williams and blurs the line between personal injury and Fatal Accidents Act claims.

(2) Can deputyship fees be recovered under the FAA?

The other decision made which is of interest is that deputyship fees, needed to administer the damages recovered for Matthew and Aaron (who lacked capacity), are recoverable in principle under the FAA. The defendant argued that deputyship fees did not fit through the s3(1) gateway as described above because, as Martin Spencer J put it in Chouza v Martins [2021] EWHC 1669 (QB) costs arising from the death, “do not represent the loss of any kind of future financial benefit but are purely and simply losses arising as a result of the death.”  The Defendant argued, “the necessity for professional deputies arises as a result of Michelle’s death, not the loss of her services.”

Whilst the learned judge accepted that, “the professional administration of a fund that has been awarded for the benefit of Aaron and Matthew is not in itself a benefit that Michelle would have conferred on them, had she lived” it nevertheless was a recoverable loss because:

  1. The Court must strive for full compensation of the pecuniary benefit the dependant lost upon the death of the deceased;
  2.  Full compensation requires a realistic view of what is needed to replace the services lost. For example, it was agreed that case management costs were recoverable in addition to the actual support the deceased would have provided to her children;
  3. Deputy fees, whilst different in amount, were no different in kind to case management fees;
  4. Deputy fees were a “necessary corollary” to achieve full compensation;
  5. Whilst this is in tension with Chouza, the decision was not directly analogous and in any event Chouza did not consider the “necessary corollary to achieve full compensation” argument

When looking back to the gateway – section 3(1) of the Act – and my translation to modern text (damages may be awarded if the loss (to a qualifying dependant) results from the death) it seems plain that the deputyship fees in this case pass through this gateway. But in truth the tussle is more about the clarifications or restrictions which have been superimposed on this gateway by subsequent authority. And the key authority goes all the way back to Lord Campbell’s Act of 1846; a dependency is proved if there is a “reasonable expectation of pecuniary advantage from the continuance of the life of the deceased” cf. Pym v Great Northern Railway Company (1863) 4 B&S 396. Or expressed in more modern language, “It is the value of the services lost which requires assessment and compensation” (Witham).  The value of services lost did not include deputyship fees, but the loss (the deputyship fees) does arise from the death. The real tension is between statute and authority interpreting statute.

Conclusion

I am informed that permission to appeal has been sought in Burgess. If granted, the Court of Appeal will get another chance to provide clarification as to whether the s3(1) gateway is as wide as a textual interpretation would suggest.