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A T H & Another v MS

19 June 2002
The issues

Fatal Accidents Act – Loss of mother’s services.

The facts

The mother died as a result of a road traffic accident on the M25 in November 1996. Liability was never in issue. She had 4 children and was 46 when she died. The husband had previously suffered a nervous breakdown and had behaved violently towards the mother attempting in 1992 to murder her. He was sentenced to 4 years in jail as a result. They divorced. The mother and the children lived with a new partner who had two children of his own. The new partner employed an au pair. The mother continued with her nursing career. From 1995 onwards, she and the new partner had combined their bank accounts. She received no support from her husband after he came out of prison. The Judge found as a fact that the relationship between the mother and the new partner was “as permanent as a marriage”.

After the accident, the mother’s previous husband, who by that time was now living with the wife of the deceased mother’s partner, took charge of the two younger children. After the death he was their principal carer.

At Trial, the Defendants argued that there should be no award in respect of the services and financial support provided by the mother for her death to her children which was now provided for by the father and his new partner. Because he and the partner were the only ones entitled to benefit and in the circumstances, were highly unlikely to do so as a matter of fact. The Judge at first instance rejected those arguments on the basis that the Court was obliged to award damages to Dependants and not carers under the Fatal Accidents Act; that but for the accident the father and his new partner would not have done anything for the infants, so that no part of the award should be held on trust for the father and thirdly, that the services and financial support which the infants received after the accident were a benefit resulting from the death of their mother and should therefore be disregarded pursuant to Section 4 of the 1976 Act.

The Judge found that each infant would be likely on the balance of probabilities to go to university and allowed for a dependency to the age of 24. In the case of the first infant, this amounted to 5 years and 13 years and 16 years respectively in respect of the three infants claiming. He utilised “a modified Cookson -v- Knowles calculation” to produce a discount of 0.5% for the first 4 years (roughly the period between accident and Trial) and a discount of 3% for the remainder of the number of years. He subsequently awarded £50,000.00 in respect of the services performed by the deceased without any indication as to how that sum was arrived at. In respect of special services that only a mother could provide, he awarded £1,000.00, £5,000.00 and £7,000.00 respectively and that part of the award was not challenged. The childrens’ father was not a party to the claim and had made no attempt to join in the claim.

The Defendant appealed.

The decision

1. The Judge was correct in his decision that the benefits accruing to the Claimants as a result of their absorption into the new family unit (the father and stepmother) should be wholly disregarded under Section 4 of the Fatal Accidents Act for the purposes of assessing damages.

2. For damages that can be awarded only on the basis that they are used to reimburse the voluntary carer for services already rendered. They are held on trust. If the terms of the trust are unlikely to be fulfilled, the Court should take steps to avoid that outcome. The multiplicand would be reduced from 75% to 60% of the deceased’s earnings, on the grounds that the Judge had made no allowance for the contributions of the new partner and later of the father and the father’s new partner. The children never were, and in reality, were never likely to be dependent upon what their mother could earn. The dependency should be reduced to 21, having regard to the special factors operating in this case. The Trial Judge was wrong to approach the multiplier on a basis even slightly different from that adopted by the House of Lords in Cookson -v- Knowles. Such a departure was unjustified.

3. The award in respect of the evaluation of the mother’s services was outside of the bracket and would be reduced to £37,500.00.

4. The awards of £5,000.00 and £7,000.00 in respect of services that only a mother could provide were also outside the bracket and would be reduced to £3,500.00 and £4,500.00 respectively.

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