LOSS OF CONSORTIUM : A DEVELOPING HEAD OF DAMAGE: THE CASES CONSIDERED

The previous post considering Brown –v- Hamid looked at the award for loss of consortium. This post looks at this developing head of damage in more detail.

THE CLAIM FOR “INTANGIBLE LOSS”

This head of damage for ‘intangible’ loss – is a common feature in claims brought by children when their mother was killed and has been so since the cases of Regan v Williamson [1976] 1 W.L.E 305 and Mehment v Perry [1977]. 

There have been a number of recent fatal accident cases where the courts have considered whether the loss of love and affection from a partner merits a loss of consortium claim.

EXAMPLES OF AWARDS FOR LOSS OF CONSORTIUM

(1) BEESLEY –V- CENTURY GROUP LIMITED

In Beesley –v- Century Group Limited [2008] EWHC 3033. The deceased’s widow brought a claim under the Law Reform Miscellaneous Provisions Act 1934 and The Fatal Accidents Act 1975 after her husband died from mesothelioma.

The claimant argued that she had not just lost domestic services, but the extra value that is derived from having help from her husband and friend. She should therefore be entitled to an award under the principles outlined in Regan v Williamson.

The defendant did not accept that she was entitled to such an award. They argued that it was not a maintainable head of claim; the Fatal Accident Act covered only financial and pecuniary loss. Non financial loss was covered by the statutory award for bereavement, which could not be altered.

Alternatively the defendant argued that the case of Regan was only applicable to claims by children. Even then children were not awarded a separate sum and the loss was taken into account by increasing the multiplicand for services.

THE JUDGMENT

Mr Justice Hamblen rejected the defendant’s arguments and awarded the claimant £2,000 for loss of consortium. In reaching his conclusion he stated :

“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.”

 (2) DEVOY –V- DOXFORD

Similarly in Devoy –v- Doxford [2009] EWHC 159 (QB) the claimant brought a claim arising from her husband’s death from mesothelioma. She was awarded £2,000 for loss of love and affection. In giving his judgment His Honour Judge Reddihough stated:

“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 [1976] 1 WLR 305, where a sum was awarded in respect of the loss of a housewife and mother who was in virtually 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 [2002] 3 WLR 1179, and  Beasley -v- New Century Group Ltd. [2008] EWHC 3033 (QB). In my judgment, an appropriate award under this head of damages is in the sum of £2,000.”

THE APPROACH OF THE COURTS IS NOT WHOLLY CONSISTENT

Although loss of consortium is being awarded in some cases, the courts have yet to develop any consistent principles as to when it will be awarded. This is apparent from the case of Brown –v- Hamid [2013] EWHC 4067 (QB).

THE FACTS IN BROWN

Mr Brown died as a result of clinical negligence and the failure to prescribe the correct medication. His widow brought an action for damages which encompassed a claim for loss of consortium.

Although it was accepted that loss of consortium can arise in a husband wife relationship the judge declined to make an award in the case. In reaching his decision he stated :

“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 [1976] 1WLR 305, the principle has since been recognised in a husband and wife relationship in a number of cases including, Mehet v Perry [1977] 2 All E R 529, Beesley v New Century Group Ltd [2008] EWHC 3033 and Devoy v William Doxford & sons Ltd [2009] 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.”

 CONCLUSIONS

  •  It appears that a Loss of Consortium is now a recognised head of damage in fatal accident claims brought by spouses, civil-partners and partners. 
  • The Courts are yet to devise a consistent approach towards claims for Loss of Consortium. 
  • Although any sum awarded for Loss of Consortium is likely to be modest, litigators should always consider including it in claims for death of a partner.

 

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