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

Submissions

Mr Hogarth submitted that the bereavement award claim is prohibited by section 1(1A) of the 1934 Act. That section operates as an exception to the general rule (set out in section 1) that a cause of action vested in the deceased at the point of death will pass to his estate. Thus, even though, at death, Mr Birtleshad a right to such an award, that right cannot be passed to his estate and dies with him.

As to the more substantial loss of services claim, Mr Hogarth says that the 1934 Act does not create new causes of action but allows only for the transmission of existing causes of action. Mr Birtles had no such claim at the moment of death and so there is no claim to pass on.

He also draws my attention to some of the “lost years” authorities. In particular to Gammell v Wilson [1982] AC 27 at page 71 and to the speech of Lord Fraser. In that case the House of Lords (as it then was) upheld awards for the loss of disposable income (or “free balance above the cost of maintaining himself”) that would have been available to the deceaseds had they not died. The claims were brought under section 1 of the 1934 Act and so the damages were payable in each case to the deceased’s estate. In each case the deceased was a young man “with no established earning capacity or settled pattern of life”. This led Lord Fraser to note that where there was already statutory provision to compensate the deceased’s dependents, it was “difficult to justify” allowing payment of future earnings to the estate. Such damages may well go to persons who were not dependent on the deceased. Lord Fraser thought the assessment of such damages was so “extremely uncertain” (it being “hardly possible” to estimate future earnings and “quite impossible” to arrive at “free income”) that the process could hardly “be dignified with the name of calculation”. He called for this “unhappy state” of the law (derived from the House of Lords earlier decision in Pickett v British Railway [1980] AC 136) to be corrected by legislation. Section 1(2)(a)(ii) was inserted into the 1934 Act thereafter.

Mr Hogarth invites me to conclude that the House of Lords’ main concern was that the “free income” could be paid to someone (the beneficiaries of the estate who might include institutions) who had suffered no loss (in short non-dependants). The difficulties with the assessment or calculation simply compounded that issue, they did not create freestanding issues.

Mr Hogarth invites me to conclude (if the cause of action survives death) that I should treat the future services claim advanced by Mr Birtles’ estate in the same way as a claim for future income. In other words (if the claim to services was vested at death), it should in any event not pass because such a result would also put the law in an “unhappy state”.

Further, he submits that the law does not generally award compensatory damages unless a loss has been suffered. He gave the example of Williamson v Thornycroft [1940] 2 KB 658. In that case a widow made a claim in respect of the death of her husband. She died 14 months after his death and before trial. Her claim passed to the estate under section 1 of the 1934 Act. At first instance, the trial Judge awarded damages calculated at the date of the husband’s death and ignored the widow’s death. The Court of Appeal overturned that decision. Scott LJ said:

“In my view the judge took an erroneous view of the date at which he ought to assess the damages in this case. He looked back to the date [of death of the husband] and gave the plaintiffs…damages representing not the actual amount which the widow last joined the 14 months of her widowhood, but a sum based upon her whole expectation of life at the date of her husband's death. It is quite true that the measure of damages has to be assessed as at that date, but courts in assessing damages are entitled to inform their minds of circumstances which have arisen since the cause of action accrued and throw light upon the reality of the case. It seems to me wholly wrong to say that where a death which involves the liability of a third party has occurred, as in this case, some years before the assessment of damages by the court, the court ought to shut its eyes to the fact that one dependent has had only a short tenure of life before death put an end to her dependence.”

The Second Defendant submits that this decision is authority for the proposition that dependency damages reflect actual dependency not notional dependency assessed on the basis that the widow remained alive. This is an important point because (as is common ground between the parties) at death, Mr Birtles had suffered no dependency loss.

Mr Exall drew my attention (at least in writing, sensibly in oral submissions he did not labour the points) to what he felt were procedural improprieties. I need not list them. The main issue was that the witness statement in support of the application contains very little other than legal argument. I do not regard that, or any other perceived misstep, as a fatal flaw in the application.

He went on to submit that the decision of the Court of Appeal in Haxton v Philips Electronics UK Limited [2014] 1 WLR 2721 was central to the claim. In that case Mr Haxton had worked for the Defendant and died in 2009 as a result of negligent exposure to asbestos. Mrs Haxton was diagnosed with mesothelioma in 2012 as a result of contact with her husband’s work clothes. She issued two claims. In the first, which followed her diagnosis, she claimed damages against the Defendant as a dependent of her husband. Her dependency claim was limited to 0.7 years because, as a result of the mesothelioma, that was her agreed life expectancy. She issued a second claim, this time in her own right for damages for personal injury suffered by her as a result of the Defendant’s negligence, this time claiming damages for the diminution in value of her dependency claim. It had to be limited to 0.7 years, but it should have been a claim over the rest of her lifetime had she not been living with mesothelioma.

The Court of Appeal allowed an appeal against the dismissal of her second claim. The headnote provides as follows: “where a claimant’s rights under the Fatal Accidents Act 1976 to recover for loss of dependency was diminished in value as a result of negligence which reduced the claimant’s life expectancy there was no reason why the diminution in value of that right could not be recovered as a head of loss in a personal action brought by the claimant.”

Mr Exall relied on the headnote as an accurate summary of the decision and suggested that it supported his case. He submitted that the only reasons that Mr Birtles was unable to pursue the future dependency claim was that he died and that was as a result of the Defendant’s negligence so the Defendant should not get a windfall from it.

He also submitted that this is a developing area of law and drew my attention to the fact that the Supreme Court is expected to give judgment soon in the case of CCC (by her litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust (with case ID UKSC/2023/0111). That case summary includes this:

“The parties agreed that the trial judge, Ritche J, was bound by the decision of the Court of Appeal in Croke v Wiseman [1982] 1 WLR 71, which prohibited him from making any award of damages for lost years in the case of a young and severely injured child. The Appellant maintains that this authority is inconsistent with previous authority from the House of Lords and claims £823,506 for lost years in addition to £224,000 for loss of earnings.”

As a term of art, “lost years” claims are claims for loss of income after the projected date of death. Such claims are particularly problematic where the claimant is a child for the reasons highlighted by Lord Fraser and cited above. The real issue in CCC appears to concern the correctness or otherwise of the decision in Croke v Wiseman and to concern lost years claims (loss of income after the expected date of death).

I did not understand Mr Exall to press for the bereavement claim not to be struck out.