KB-2025-MAN-000051 - [2025] EWHC 1926 (KB)

My conclusions

I am satisfied that the claim for the lost opportunity to pursue a bereavement claim should be struck out. It has no prospect of success. Mr Birtles had such a claim at the point of death (it did not require proof of loss, and it was vested in him) but the effect of section 1(1A) of the 1934 Act is that the claim cannot be passed on. No doubt that statutory provision reflects the personal nature of the award which is only available to a small class of dependants.

As to the lost opportunity to bring a substantial claim for lost services in my view that claim must also be struck out. I prefer the arguments advanced by Hogarth for reasons I now set out.

First, I am satisfied that no such claim was vested in Mr Birtles when he died. At death he had suffered no loss (in the sense recognised by the law and beyond bereavement) as a result of the death of his wife. That is clear from the pleaded case. Mr Exall advances no claim to damages to loss of services in the 12 days Mr Birtles survived. If there was a claim at death it would be limited to those 12 days in accordance with the approach taken in Williamson v Thornycroft; if the matter came to trial the court would wish to ascertain what loss had actually been suffered. The court would not engage in a fictional exercise of assessing loss that has not been suffered.

Mr Exall’s reliance on Haxton is misplaced. Mrs Haxton was entitled to claim, as part of her personal injury damages, a top up of the award she had already received. The new claim was compensatory because it would reflect what would have happened had her life expectancy not been curtailed. Mrs Haxton’s loss in my view was suffered when she was awarded (or agreed to accept) dependency damages based on a reduced life expectancy. By the time she made her second claim (she remained alive at the Court of Appeal hearing) her loss was clear and in the past. The Court would simply have looked at the difference between the actual award and what the award would have been had she had a full life ahead of her. The judgment does not deal with that process because damages were agreed.

Mr Birtles’ case is different. Unlike Mrs Haxton his claim was based on losses he was yet to suffer. The true consequence of Mr Birtles’ death was that he had no opportunity to suffer the loss for which he claims damages. It would be wrong to compensate Mr Birtle’s estate for a loss which he did not in fact suffer. There has been no “diminishment” of his loss as there was in Hoxton.

I am not satisfied that the Supreme Court decision in CCC will make any difference to this claim. I am not satisfied that there are any factual determinations that would make any difference to my conclusion. The law in my view is not developing in this area. The services claim must go because there is no loss and because no relevant claim was vested in Mr Birtles when he died.

I would not have accepted Mr Hogarth’s point that section 1(1A)(a)(ii) of the 1934 Act (which deals with income) would have prevented this claim from passing to Mr Birtles’ estate. There is, however, no need to deal with the point. It does not fall to be decided because the precondition of its application (that a claim survived) is not met.