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The Jurisprudential Basis for Regan -v- Williamson Damages

  1. This head of loss is most often seen in fatal cases where children and/or spouses seek a lump sum award representing pecuniary loss suffered as a result of the death, and variously referred to as an award for the loss of the deceased’s love and affection or care and attention or an award for the loss of intangible benefits. However, as will be seen, these shorthand references often serve to conceal the true basis upon which such damages can and should be advanced and awarded.
  2. In MOSSON -v- SPOUSAL (LONDON) LIMITED [2016] EWHC 53, Garnham J considered that where the financial consequences of the loss of a partner’s care and attention could be measured with reasonable accuracy this generated a discrete claim for special damage in the form of a dependency on services and there was no mandate for a separate award for the value of the loss of a partner’s care and attention. His reason was that the basis for such an award would be the fact of the survivor(s) having to do what the deceased would otherwise have done, which loss was already factored into the special damages claim which concerned the value (not just the cost) of the services formerly provided. Conversely, where no such measurement was possible, the cost of having to do what the deceased would otherwise have done formed part of statutory bereavement damages. It can be seen that Garnham J approached the question of intangible benefits/care and attention on the basis of monetary value rather than on the basis of non-pecuniary “love and affection”. In doing so he was true to the basic principle of the assessment of damages in Fatal Accidents Act cases i.e. by reference to identifiable pecuniary loss.
  3. In MAGILL -v- PANEL SYSTEMS [2017] EWHC 1517 HHJ Gosnell sitting as a Deputy High Court Judge considered that the deceased was so unwell before his diagnosis of mesothelioma that in any event he could not have provided the gardening, DIY or decorating services claimed. On the facts therefore, there was no special damages award and HHJ Gosnell’s consideration of a separate award for the loss of love and affection/care and attention/intangible benefits was obiter dictum. However, he indicated that he did not consider that such an award could be made because he did not think that the widow would be put to any recoverable cost in arranging for the replacement of services which the deceased had not in fact provided, and that any claim based simply on “love and affection” was encompassed by the statutory bereavement award. Specifically, HHJ Gosnell refused to accept that in MOSSON, Garnham J had erred by characterising the damages sought as being for loss of intangible benefits rather than the loss of love and affection, and he approved Garnham J’s reason for rejecting this head of claim.
  4. Some 3 months after MAGILL, in the case of GRANT -v- SECRETARY OF STATE FOR TRANSPORT [2017] EWHC 1663 (QB), Martin Chamberlain QC sitting as a deputy High Court Judge also considered the basis for damages for loss of intangible benefits/care and attention. He concluded that there was no basis for any non-pecuniary award otherwise than the statutory bereavement award, and it is submitted that as a matter of statutory construction he was correct to do so. However, he did consider that there was a compensable “pecuniary loss” where the cost of replacing the services of the Deceased was an “imperfect proxy”, i.e. where the cost of replacing the services does not “capture the whole of the loss”. His decision conflicts with MOSSON in that Garnham J did not consider that time and effort spent arranging for commercial replacement for services was a pecuniary loss because the services claim proper took account of both the benefits and the burdens of having commercial provision, including the burden of arranging it (see especially paragraph 73 of the Judgment). In contrast Martin Chamberlain QC was prepared to entertain such a claim where there was proof of a loss which can be characterised as pecuniary but which is not susceptible of being reduced to a calculated sum by way of damages for the cost of lost services.
  5. The distinction between these two approaches may well be in the way in which the claim for loss of services is presented. A claim for “cost” of work formerly done by the deceased leaves room for an additional claim by the survivor for the pecuniary value of arranging and managing such work commercially, whereas a claim for “value” of services formerly rendered does not.
  6. Given the broad estimates which necessarily characterise many elements of many special damages claims, it may be wondered whether the concept of a pecuniary loss which cannot be reduced to a calculated sum and so included in the services claim where it belongs is a concept so abstract as to be illusory. However, in the very recent case of BLAKE -v- MAD MAX LIMITED [2018] EWHC 2134 Mr. Peter Marquand sitting as a Deputy High Court Judge felt able to award £2,500 representing the aggregate value of a periodically occurring pecuniary loss not susceptible of more accurate quantification and arising out of the fact that the Claimant widow had now to organise others to undertake the work which her spouse would formerly have done, the cost of which work (but not the value of the administrative time spent organising it) being reflected in a separate claim for dependency on services.
  7. This remains the present position and it is submitted that in the very recent decision of CC -v- TD [2018] EWHC QB HHJ Freedman sitting as a Deputy High Court Judge was probably wrong to conclude that the Court had power to “make an award for loss of intangible benefits where children have been denied the benefit of love and affection which their father would otherwise have bestowed upon them”.
  8. By way of summary, for the present:
    1. No damages can be awarded on the grounds of pure sentiment, there must be a pecuniary loss (GRANT).
    2. Where the loss of the Deceased’s contribution can be quantified with reasonable accuracy, there is no mandate for a separate award for loss of a partner’s care and attention (MOSSON).
    3. Where the services claim is advanced on the basis of a loss of the value of services formerly provided, this will necessarily embrace the fact that the Deceased took upon himself or herself the organisation and management of the work thereby leaving no room for any other head of claim.
    4. However, where the services claim is advanced on the basis of the cost of replacement services, in an appropriate case there will be a compensable “pecuniary loss” as the cost of replacing the services of the Deceased was an “imperfect proxy”.

To view the full judgment, please click here.

PETER MORTON



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