Relatively few fatal cases get to trial. Even fewer involve a consideration by the court of the damages to be awarded under the Fatal Accident Act. The recent decision in Brown –v- Hamid  EWHC 4067 (QB) provides an interesting example of how the courts approach the issue of dependency.
BROWN –V- HAMID – THE FACTS
Brown was a clinical negligence case where Mr Brown died as a result of a failure to prescribe Warfarin. The failure was found to have accelerated Mr Brown’s pre-existing symptoms and death. The judge found that the period of acceleration was around 12 months.
INDIVIDUAL HEADS OF DAMAGE
The case is an example of the judge considering various heads of damage.
Knowledge of reduction of life & damages for pain and suffering
The specific head of knowledge for loss of expectation of life has been abolished. However the court is entitled to take into account, when assessing damages for pain and suffering, the deceased’s knowledge that his expectation of life had been reduced. This was considered by the judge.
“38. As to the assessment of general damages for pain, suffering and loss of amenities, although during this period of about 12 months Mr Brown would in any event have been suffering from some relatively mild symptoms associated with his pre-existing condition, he would not have suffered from the more severe symptoms which he went on to develop. This contrast includes the symptoms of breathlessness which allowed him to walk long distances on the flat, as opposed to those symptoms which prevented him from walking more than 50 yards. In addition, although damages for loss of expectation of life are not recoverable in this case, in assessing damages in respect of pain and suffering, the court is entitled to take into account any suffering likely to have been caused to Mr Brown by his awareness that his expectation of life had been reduced (s.1(1)(b) of the Administration of Justice Act 1982). In this regard I am of course mindful that this action was commenced by Mr Brown when he was still alive, and had the opportunity to discuss this matter with Dr Kelly. Moreover it is apparent from Mrs Brown’s witness statement that Mr Brown suffered significant distress and anxiety as a result of the impact of the delayed diagnosis on his health. In these circumstances I consider that Mr Brown would have had sufficient awareness that the length of his life had been reduced, so as to include this matter within the award of damages.
39. I have been referred to the 12th edition of the Judicial College’s Guidelines for the assessment of General Damages in Personal Injury Cases. In particular those awards relating to both asbestos related disease and asthma. Although by no means a straight forward exercise, I consider that the appropriate award of general damages for pain, suffering and loss of amenities is £8 500.00.”
Bereavement damages were awarded in the sum of £11,800 (the relevant statutory sum at the date of death).
Funeral expenses were not awarded.
“However although damages for the recovery of funeral expenses “may” be recovered and indeed usually are recovered under s.3(5) of the 1976 Act, in the circumstances of this case, namely the acceleration of the symptoms associated with a pre-existing condition by a relatively short period of time, I do not consider that it would be appropriate to make such an award.”
Loss of earnings and diy skills
The awards were made for a relatively short period
“41. It is accepted that during the period when Mr Brown would, but for the onset of more debilitating symptoms, have been able to work, an award of damages for his loss of earnings would be appropriate. The current claim based upon a period of 5 years and 4 months is £10 761.25. This figure is not challenged and on this basis an award of £2 000.00 is appropriate.
42. Equally it is accepted that during such a period Mr Brown would have deployed his considerable DIY skills. These have been valued at £13 333.32, again a figure which is not challenged, leading to an award of £2 500.00.”
Costs of “useless” medical consultations
The judge held that Mr Brown had received no benefit at all from the first two consultations with the defendant. Consideration having failed the sum of £250.00 was recoverable.
Claim for loss of consortium
The judge declined to make a separate award for loss of special consortium.
“A claim for loss of special consortium has been made in this case due to the loss of love and affection which Mr Brown would otherwise have provided to his wife. Although this head of loss originated in a parent and child context in Regan v Williamson  1WLR 305, the principle has since been recognised in a husband and wife relationship in a number of cases including, Mehet v Perry  2 All E R 529, Beesley v New Century Group Ltd  EWHC 3033 and Devoy v William Doxford & sons Ltd  EWHC 1598. However although in principle such an award may be recoverable there is clearly a distinct overlap with the award of damages for bereavement. I note that in contrast to the present case the circumstances of those cases involved substantially longer periods of time over which such a loss had taken place. Although this difference could be allowed for in the quantum of any such an award, in the present case I am conscious that in addition to damages for bereavement, damages are also to be awarded for loss of DIY services. In those circumstances I do not consider that the extent of any loss in this case makes it appropriate to found a separate head of damages.”
Interest on damages
It is important to note that interest was awarded in three different ways.
“In so far as interest is concerned, the claimant will be entitled to interest at 2% pa from the date of the service of the claim form on damages for pain, suffering and loss of amenity. There will be interest at the full prevailing Special Investment Account rate from the date of death on damages for bereavement. There will be interest at half the prevailing Special Investment Account rate on special damages”
This was a case with a very limited impact on life expectancy. However an award was still made for loss of dependency.
(1) This is the first case I am aware of where funeral expenses have been refused for a deceased claimant. In Watson –v- Cakebread Robey Ltd  EWHC 1695 (QB) funeral expenses were refused to a living claimant whose life expectancy had been reduced.
(2) There are relatively few awards that deal with pain and suffering prior to death. Although there is now a section that deals with this at Section 1 of the Judicial College Guidelines.
Claims for loss of consortium
The claim for loss of consortium is a developing one.
- In Devoy –v-Doxford  EWHC 1598 (QB) http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/1598.html&query=beasley+and+fatal&method=boolean the claimant widow suffered from Parksinson’s disease, osteoporosis and a painful spinal condition. Her deceased husband was her constant companion and carer. The judge stated:
“79. Loss of love and affection: Finally, the Claimant puts forward a claim in respect of the loss of the deceased’s love and affection. Essentially, this is a claim similar to that in Regan -v- Williamson  1 WLR 305, where a sum was awarded in respect of the loss of a housewife and mother who was invirtually constant attendance upon her husband and children. It is really a claim for the loss of the special attention and affection, which in some respects cannot be replaced, of a wife and mother. In my judgment, such a claim can arise in a case such as the present, where undoubtedly the Claimant has lost the love and affection and the very special attention which the deceased would
have given to her in respect of her disabilities had he lived. In some ways, there may be an overlap between such an award and the award of damages for bereavement. In considering what award is appropriate under this head in the present case, I have considered the cases referred to in Paragraph 29-052 of Kemp and Kemp on the Quantum of Damages, the case of H -v- S  3 WLR 1179, and Beasley -v- New Century Group Ltd.  EWHC 3033 (QB). In my judgment, an appropriate award under this head of damages is in the sum of £2,000.”
THE AWARD IN BEESLEY
In Beesley –v- New Century Ltd http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/3033.html&query=beesley&method=boolean [wrongly referred to as “Beasley” in the Devoy report] the judge considered this head of damages in detail:-
“Loss of intangible benefits
79. The Claimant submitted that this is an appropriate case for such an award, which is based on the premise that Mrs Beesley has not just lost domestic services, but on the extra value that is derived from having such help provided by a husband and friend; see Regan v Williamson  1 WLR 305. It was submitted that a reasonable award would be £3,000.
80. The Defendant submitted that this was not a maintainable head of claim. It was that it was contrary to the principle that Fatal Accident Act damages are only awarded for financial or pecuniary loss. The statutory award for bereavement covers any non-financial loss.
81. However, it is clear that there have been a number of cases in which such awards have been made. In Regan -v- Williamson, which followed the Court of Appeal decision in Hay -v- Hughes  QB 790, the dependency figure for the loss of the services of a mother was increased to reflect the benefit of the personal attention to a child’s upbringing which a mother provided and which could not be replaced by a housekeeper, nanny or child minder, although no separate award was made. However, in Mehmet -v- Perry  2 All E.R. 529 a separate award was made to the children and the approach extended to the husband’s claim and a separate award was made to him as well. Subsequent cases have followed this approach.
82. The Defendant submitted that properly understood the authorities of Regan and Hay are only applicable to claims by children and then only to the extent of reflecting the loss in an increased multiplicand for the services dependency, not in a separate award.
83. In my judgment the principle of making awards for loss of intangible benefits is now well established – see Kemp and Kemp [29-052]. It reflects the fact that services may be provided by a mother, wife, father or husband over and above that which may be provided by a paid replacement. In principle, there is no reason for differentiating between the position of children and spouses in connection with the availability of such awards.
84. In relation to services provided by a husband or father the position is summarised in Kemp and Kemp at p29047 as follows:
“Awards of this kind have also been made to a widow or child for the loss of services provided by a deceased husband or father. There is no reason in principle why such awards should not be made where the services provided by a husband or father justify it on the facts. Such awards ought to be in proportion to the more conventional awards already noted for wives/mothers. This will mean that they will be lower in the average claim where the deceased husband/father was the family breadwinner”.
85. The present case is a good illustration of why it may be appropriate to make such an award to a widow. So, for example, there are considerable advantages in having jobs around the house and garden done by a husband at his own time and convenience rather than having to go out to find and choose commercial providers, and to have to work around the hours that suit them for the work in question.
86. I therefore consider that such an award can be made, that this is an appropriate case for such an award to be made and that the suitable figure is £2,000.”
Claims for loss of consortium
It is clear that claims for loss of consortium are being awarded. The sums, however, are modest.
- The award for loss of services to a child is considered at
- Claims for pain and suffering prior to death are considered at https://fatalaccidentlaw.wordpress.com/2013/08/22/the-claim-for-the-injuries-and-losses-the-deceased-person-suffered-prior-to-death/
- Dependency damages are considered (in general terms) at https://fatalaccidentlaw.wordpress.com/2013/07/22/the-law-relating-to-fatal-accidents-an-introduction/