FATAL ACCIDENT DEPENDENCY: CHANCE OF RECONCILIATION GIVES RISE TO 80% OF DAMAGES

The judgment of HHH Judge Coe (sitting as a High Court judge) in Hayes -v- South East Coast Ambulance Service NHS Foundation Trust [2015] EWHC 18 (QB) highlights an important aspect of fatal accident damages.  A former wife and husband had separated and were divorced at the time of the husband’s death. However reconciliation was on the horizon and dependency damages were awarded on the basis of a 80% chance of reconciliation.

THE CASE

The judge found that the defendant’s ambulance crew had been negligent in failing to treat the deceased properly. The judge also found that appropriate treatment would, on the balance of probabilities, had led to survival.

THE RELATIONSHIP BETWEEN HUSBAND AND WIFE

  1. Mr and Mrs Hayes met in 1997 and married in 1998. They had three sons Harry, born 7th May 1999 and twins Nicholas and Anthony born 5th July 2001. In the early part of 2003 Mrs Hayes discovered that her husband had been having an affair and they separated. Her husband moved out of the house in about August or September 2003 and went to live with his mother and father. He subsequently bought his mother and father’s home and continued to live there. Mr and Mrs Hayes divorced in 2004. However, they remained amicable and on friendly terms and Mr Hayes remained very much involved in the lives of his sons.
  2. It is the Claimant’s case that having always been on friendly terms she and Mr Hayes became closer from about 2006 and began to rekindle their relationship. They went out together not just for the children. They had begun to discuss their future together with an intention to live together again and remarry. They had resumed a sexual relationship in September 2008 but were taking things slowly and had not revealed their reconciliation to their families. They intended kept their sexual relationship from the children although it seems they were found out.
  3. The claim is brought on the premise that they would have reconciled and remarried and that Mrs Hayes would have been once again a dependent of her husband for the rest of their lives.

KEY POINTS

  • Although the couple were separated and divorced there was a good chance of reconciliation. Dependency damages on this basis were awarded on the basis of 80% of the full amount.
  • The couple were divorced there were no grounds for making a statutory bereavement payment.
  • There was no evidence at all in relation to diy or gardening, thus there was no award.
  • An award of £15,000 was made for the “loss of intangible benefits” for the three children of the relationship.
  • Note that the reduction only applied to the former wife’s claim for dependency. All other claims were recovered at 100%.

IMPORTANT POINT OF LAW

This case highlights the importance of the decision in Davies -v- Taylor [1974] AC 207.  In a case such as this damages  for dependency are not awarded on the balance of probabilities but on the basis of the percentage chances of reconciliation. The test is summarised at paragraph 146 of the judge’s decision.

THE JUDGMENT ON DAMAGES

  1. In respect of quantum it is agreed that I should make some findings in principle in the hope that the parties can agree some figures.
  2. In respect of the issue of whether or not Mr and Mrs Hayes would have reconciled, it is agreed that there is a two stage test (Davies v Taylor [1974] AC 207). Firstly I must decide whether or not there was a significant chance (which may be less than 50%) as opposed to merely speculative possibility that the couple would reconcile. If the first stage is passed, then I must assess the chances of reconciliation in percentage terms and adjust the award accordingly.
  3. I accepted the evidence of Mrs Hayes that the parties had in fact begun the process of reconciliation. They had resumed an intimate relationship. They had begun to discuss the future, including remarriage. In the circumstances I find that there was a significant chance that they would reconcile. I assess the chances of a reconciliation in this case at 90%. This is based on the evidence which I accept that Mr Hayes had ended his affair when Mrs Hayes found out about it and not had any other relationship thereafter. Mrs Hayes having taken the decision in light of her discovery to divorce had clearly regretted that. They were taking matters slowly and thoughtfully. Mrs Hayes has obviously given some thought to the possibility that her husband might have had another affair and considered that this would not automatically mean the end of their relationship. Her evidence was effectively that she had gone through with a promise to her husband that if she ever caught him cheating she would divorce him. She wished she had not done so. I think that on the basis of her evidence and the steps which had already been taken it was significantly more likely than not that the parties would reconcile.
  4. I accept that there would have to be some reduction to reflect the fact that there would be a risk that even having reconciled the relationship would have failed again. In the circumstances of this case where this couple were aware of the risks for the future and were aware of the need to take things slowly I do not consider that the risk was greater than 10%.
  5. The total prospect of a successful reconciliation therefore was in my view 80%.
  6. I accept that the estate is entitled to an award damages for pain and suffering and loss of amenity but that the period of suffering was very short and that the appropriate (uplifted) award is £1,100.
  7. The funeral expenses are agreed at £2,059.
  8. There is no claim for damages for bereavement. Mr and Mrs Hayes were divorced at the time of his death. The Fatal Accidents Act 1976 makes no provision for an award of bereavement damages to surviving minor children. The Claimant suggests that the restriction on those eligible to receive a bereavement award is arguably a breach of the Human Rights Act 1998 on the basis that an award to parents of a deceased child but not to children of deceased parents is illogical and discriminatory. The government has prepared draft legislation to reverse the situation but has not yet brought it into force. A bereavement award is a statutory award and the legislation defines the categories of those who can claim it. They are narrow. Any proposed legislation has not been made law. In circumstances where there is no general right to claim such an award it does not seem to me that the current legislation is incompatible with the Human Rights Act and I make no declaration.
  9. The Claimant calculates financial dependency in the sum of £408,955. In light of my findings this is subject to a 20% deduction and that sum would be £327,164. There is a claim for dependence on pension in the sum of £40,483. After the appropriate deduction that sum would be £32,386.40.
  10. I accept that on the balance of probabilities all three of the Claimant’s sons will remain in education after the age of 18. I have seen their school reports.
  11. There is a claim for dependency on services based on estimated figures for gardening and DIY and 14 hours per week of transporting three boys to football matches and training until the twins’ 21st birthdays. I heard no evidence about Mr Hayes’ gardening or DIY and it is not referred to in Mrs Hayes’ statement. I make no award in this respect. Mrs Hayes said in her evidence that in fact Mr Hayes was spending about five hours a week transporting his sons to sporting activities and I allow that figure to the twins’ 18th birthdays on the basis that after the age of 18 they will be independent or in full-time education, probably away from home.
  12. The Claimant’s schedule of loss is calculated on the basis of a dependency following reconciliation from the date of the deceased’s death. The parties were not living together at the date of his death. Mrs Hayes felt that they would have begun living together in the New Year of 2009. Given the progress that they were making towards reconciliation I accept that this would have been the case and find that they would have been living together from the end of January 2009. There may need to be some minor deduction in this regard from the figures.
  13. The £15,000 for the loss of the intangible benefits of a father is agreed in respect of the three boys.
  14. The Claimant is entitled to interest on general damages at 2% per annum from the date of service of the proceedings to the date of trial and on the claim for funeral expenses at the full special account rates from the date of death to the date of trial. She is also entitled to interest at half the special account rate on the path to dependency from the date upon which the loss was incurred (being in this case later than the date of death) to the date of trial.

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