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Rules are rules – the importance of following the conventional methods of calculation in financial dependency claims

28/06/2024

Introduction

This article looks at the case of Price v Marston’s [2024] EWHC 1352 (KB) – a fatal accidents case which was appealed and cross appealed by the parties after the first instance Judgment was handed down.

Whilst there were several issues on appeal, this article focusses on the appeal as it relates to the Judge’s method of calculating the Claimant’s financial dependency claim.

Brief facts

The claim was brought by the widow and administratrix of the estate of her husband, Mr. Price. Mr. Price was employed by the Defendant as a chef. Whilst at work he fell and subsequently developed an infection from which he died. The issues for the court were twofold, namely causation (i.e., did the fall cause the infection and therefore his death) and quantum (the main points being life expectancy and the assessment of the financial dependency claim).

The financial dependency claim

The pleadings

Mr. Price was 59 years old at the date of death (2015) and would have been 67 at the date of trial. The Claimant put her case on a conventional basis. The income from Mr. Price’s job was circa £18k per annum. Her income was from benefits, totalling circa £7,800 per annum/£300 per fortnight. Adopting a conventional 1/3 to 2/3 division (see Harris v Empress Motors Ltd [1984] 1 WLR 212), the net annual loss to trial was circa £9,500 p/a (or circa £60k total to the assumed date of trial, and with a discount of 0.97% to reflect death before trial).

For future dependency, it was said that Mr. Price would have retired on his 66th birthday. He then (it was said) would have been paid ‘an equivalent sum to his pre-accident income’.

A counter-schedule was served stating that: the Claimant was required to prove that Mr. Price would have retired at 66, that the Claimant herself may in fact return to work, but that the past loss claimed (i.e., the £60,000) was agreed. As to future losses, the assertion that the earnings would have not changed was simply ‘not understood’, and therefore needed further clarification.

Trial

At the trial the Claimant gave evidence that Mr. Price was going to work until at least 66, and that she had not worked since 2014 for health reasons. She said that after retirement Mr. Price probably would have done a part-time job. She was not challenged on her benefits but said that that the figure had now increased to circa £680. Although she could not recall when the rise was, she believed that it was two years before (2020) and was because she had given up her car.

Submissions

The Judge invited closing submissions in writing.

Following the conventional calculations, the Claimant submitted that the past loss figure was circa £71,000, inclusive of interest. As to future loss, the sum claimed was circa £121,000. This was based on the income of the deceased and the income (from benefits) at the time of death. It was said that the basis for the claim was not properly challenged in cross examination and given that the counter-schedule said very little, the head of loss should be taken as accepted.

The Defendant submitted that the increase from £300 per fortnight to circa £700 per fortnight was relevant since it is the ‘detriment of any reliance on income’. The figure within the counter-schedule was therefore withdrawn. It was said that the claim for any financial dependency failed on evidential grounds. (Although, since the consequence of that position was that there was no loss, that position was not maintained, with the Defendant stating instead simply that the Judge’s conclusion should stand).

Further submissions were then made by the Claimant, saying that the loss could be inferred from the facts of the case. It was repeated that the starting point was the income of the deceased and the Claimant at the point of death. The Judge was referred to the relevant sections of the Ogden explanatory notes.

Judgment at first instance

The Judge held that Mr. Price was earning circa £350 p/w net and was the main earner. There was a claim for dependency, but although he accepted that the intention was for Mr. Price to retire but derive a similar income (from his pension and his work), ‘the general risks in life could have prevented these intentions reaching fruition.’

Whilst the change in the level of benefits was not a proper basis for quantification, there would be an upper limit as to the benefits that would be received which would not reach the earnings of her late husband, and so there would be some loss.

However, instead of adopting the convention 1/3 and 2/3 approach, the way in which the Judge decided to calculate the dependency was to take the current benefits figure of £340 p/w (because that was the figure he had the most confidence in), which compared to the £350 p/w would result in a £10 difference p/w (circa £520 p/a). The loss was therefore £520 per annum.

Post-Judgment, but pre-appeal

After the Judgment was circulated in draft, further submissions were made.

The Claimant repeated that the Judge’s calculation had failed to adopt the conventional approach. Even on the £10 p/w to 73 (which was not agreed), on a conventional basis there was a loss of circa £6,300 (plus anything after 73).

In response to those submissions, the Judge inserted the sum of circa £6,300 into the final order, describing it as a ‘total for financial dependency’.

Further written submissions were then filed, with the Defendant stating that one could not apply a conventional approach when the figures were not ascertainable (which it was said they were not, apparently because of the change in the benefits figure). They said that the lump sum award made was appropriate to take account of various uncertainties, including: a) the risk Mr. Price wouldn’t work to age 66, b) that he would not have worked beyond age 73, c) that if he did there was at least a chance he wouldn’t have (estimated at 15%), and d) in any event – he would have wound down.

In the alternative, it was said that if a mathematical process was followed, they simply took the Claimant’s calculations and applied discounts of 10% to past loss and 15% to future loss.

None of those submissions ended up being addressed in the Judgment.

The appeal

Mr. Justice Griffiths cited the case law that sets out the approach that personal injury practitioners are so familiar with when it comes to assessing financial dependency claims (see e.g., Harris v Empress Motors Ltd [1984] 1 WLR 212, Coward v Comex Houlder Diving Ltd (18 July 1988 CA), Cape Distribution v O’Loughlin [2001] EWCA Civ 178, Williams v Welsh Ambulance Services NHS Trust [2008] EWCA Civ 81).

Just because the court has to examine the particular facts of the case to determine whether or not there is a loss, was not, the appeal Judge held, a reason to start from scratch. Indeed, the whole point of the Ogden tables, and the one third/two rule of thumb is that they counterbalance the uncertainties in any particular case (including the ones identified by both the Defendant and the Judge). It was precisely because the task is so difficult that tools have been developed for aiding the Judge. They were not to be discarded lightly, especially if an unconventional approach led to a result which does not seem correct or fair (which it did in this case, since the figure was far lower than even the Defendant’s figure, as per their counter-schedule).

Having rejected the submission that there was no loss proved, the first instance judge then took an approach that was not suggested by either side, nor had any precedent in case law, or was even a modification on the approach as set down by previous case law.

This was not an exceptional case that justified departure. The fact that Mrs. Price was on benefits before and after Mr. Price’s death was not exceptional. Nor was the fact that the benefits had risen some 7 to 8 years after her husband’s death. Equally unexceptional was the fact that because she had given up her car, she had swapped the increased benefit for the loss of the benefit represented by the car. That was not evidence of a windfall. In short there was nothing to support the Judge’s contention that the case was exceptional.

The total sum for financial dependency assessed on a conventional basis, was as per the Claimant’s calculations up until the age of 73, and which gave a figure of circa £67,000 (circa 10 times higher than the award made).

Concluding remarks

Given that the basis for calculating the financial dependency is fairly well understood, the above may come as little surprise to those who undertake Fatal Accidents Act work. However, whilst the Judge’s errors are extreme, the case serves as a stark reminder that:

  1. The Ogden tables have built into them the various contingencies that may occur over an individual’s working lifetime (e.g. death before trial – see Tables E and F, and the discounts for contingencies other than mortality). To depart from them one needs a convincing explanation.
  2. Likewise, the conventional dependency ratios – if there is to be a departure, then it will only be in exceptional circumstances and will require evidence.

In financial dependency claims the likely battleground is unlikely to be the method of calculation, but the factual assumptions that underpin the claim. This case was an exception to that rule, but serves as a reminder that the rules are there for a reason, and unless there are really exceptional circumstances, to be followed.

James Bentley

Authors

James Bentley

Call: 2012

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