LORD JUSTICE McCOWAN: This is an appeal by the defendant against an award of damages to a minor suing by her next friend made by Buckley J. on 14th September 1990. The defendant says the award was too large. The plaintiff cross-appeals to argue that it was not large enough.
The action resulted from a motor accident on 30th August 1983. The defendant was driving a motor car towing a caravan. His wife was a passenger in the car when the car and caravan overturned and his wife was killed. Liability was not disputed.
At her death the deceased was aged 35 and the defendant about two years older. The couple had five children who were then aged 19, 17, 15, 14 and 4. All five lived at home with them.
It was common ground that the deceased was an excellent mother, a good housekeeper and cook, devoted to her children.
The defendant had a garage business which was, up to the time of the accident, doing well and from which he took about £15,000 a year. The deceased did the paperwork in the business and for that was paid £30 a week. By six months after the accident the business had so run down that the defendant was able to sell it for only £5,000. Part of the reason for its decline, according to the defendant's evidence, was his inability to deal with the paper side, but another significant factor was that he began to drink heavily and neglected his work.
Having sold the business he has not worked since, but has lived on supplementary benefit. The other four children have over the years left home (two to live with girlfriends and two with their maternal grandmother). The youngest child, Danielle, who is the plaintiff, had, however, lived with the defendant from the date of the accident to the trial of the action, and he had devoted himself to looking after her. She is now aged 13.
Her next friend is her maternal grandmother. All five children were made plaintiffs in the action, but it was pursued only on behalf of Danielle.
The judge awarded her total damages of £21,000, £1,000 of that being for the minor personal injuries she suffered in the accident. The defendant does not appeal that part of the award; but he does appeal the £20,000 awarded to her as a dependent of the deceased under the Fatal Accidents Act 1976.
On behalf of the plaintiff, evidence was adduced as to the cost of providing a nanny for Danielle and this was the yardstick the judge was invited to consider. He had evidence from a Sheila Davis, who runs a nanny agency. She put forward a schedule based on the full cost of supplying a nanny until Danielle was 11 and thereafter at half cost until she was 15, the multiplier being 11 and the total figure arrived at £48,000. According to the judge the main defence argument at the trial was that, as the defendant had looked after her since shortly after the accident and she would or might want to repay him for those services, it was wrong that she should be able to recover the cost from him in legal proceedings. The judge rejected this argument, which he said was based on a legal or moral obligation to repay, saying that the true basis can only be that "the plaintiff has actually suffered a real loss which is capable of being quantified in monetary terms."
The judge proceeded to say:
"I therefore hold that Danielle is entitled to recover the lost services of her mother. The fact that the defendant has provided substitute services does not defeat the claim in principle."
Later in the judgment he continued:
"I also bear in mind the fundamental principle that damages are compensatory and that in this case Danielle has, in the event, been looked after by her father to the date of trial. This benefit is something which is to be disregarded at common law in the sense that it is not to be set-off against any quantifiable loss as on the authorities it is not a benefit which resulted from the death. It is, however, a factor in determining the existence or extent of any loss, at least to the date of trial, as it was by then a fact.
As against that the deceased would, in my view, probably have bestowed more attention on Danielle than her father has been able to do. This is not intended as any criticism of him. There is also the factor that she was an invaluable assistant in the family business, for which she was paid £30 a week at the date of the accident. Mr. Hayden described her as 'priceless', and I have the impression that had she lived, the business would have prospered and Mr. Hayden's problems with drink, of which he spoke in evidence, might have been avoided. Some of the deceased's earnings would undoubtedly have been used to benefit Danielle. I bear in mind that with a sister and three brothers, Danielle would not have been the sole beneficiary, but I am satisfied by the evidence as a whole that the deceased would, over the years, have made a significant contribution to the family income in general, and Danielle in particular.
The figure I have arrived at is £20,000. I would apportion it as to £15,000 to trial and £5,000 for the future. I am conscious that this is not mathematically the same apportionment as Spittle v. Bunny, which is comparable as to the age of the plaintiff and the period from accident to trial, but I regard Danielle as more vulnerable in the future than was Kate in Spittle v. Bunny, and I have had regard to the fact of Mr. Hayden's services to trial in assessing Danielle's actual loss and the nature and extent of it. I find that it has been significant but she has been cared for and to approach the full commercial cost of a nanny would, in my view, be unrealistic. This aspect of the matter was wholly disregarded in Spittle v. Bunny, see page 853H et seq, because the point was not argued and the evidential basis for its consideration was absent.
I should also add that I regard the prospect of Danielle's wishing to pay her own father for looking after her, or his wishing to accept payment, as substantially unreal on the particular facts of this case."
The judge had heard evidence from both the next friend and the defendant. It is plain from the transcript of the evidence that the former bears considerable ill-will towards the latter. Her picture of him as a father to Danielle is not complimentary. One of the problems facing this court has been that the judge made virtually no findings of fact. In particular, he made no specific finding as to how well the defendant has looked after Danielle. At one part of his judgment, however, he does say that "the deceased would, in my view, probably have bestowed more attention on Danielle than her father has been able to do. That is not intended as any criticism of him". I do not see how he can have said this if he has accepted the grandmother's strictures on the defendant.
At the opening of the hearing before this court, Mr. Brent for the plaintiff sought to adduce further evidence. We agreed to look at it de bene esse. It amounted to this: that on 3rd November 1991 (over a year after the judgment under appeal) Danielle left the defendant and went to live with her grandmother where she has remained ever since; and that proceedings have been commenced in the Brent Magistrates Court under the Children Act 1989 to determine where she will live in the future, which proceedings have been adjourned to 6th April 1992 with an interim order that she reside with her grandmother.
This evidence does not tell us why Danielle went to live with her grandmother and it cannot of course tell us what the Magistrates will decide on 6th April 1992. There is nothing to suggest the grandmother is incapable of giving her such care as she now requires. In addition, I read the judge's reference to Danielle being "vulnerable in the future" (see 5E and also 3B of the judgment) as an indication that he bore in mind in making his award that her circumstances might change. For all these reasons I do not consider that the further evidence would or might have had an important effect on the judge's mind, and I for my part would not admit it.
Mr. Crowther for the defendant submits that, although the judge did not explain in mathematical terms how he arrived at the figure of £20,000, it must have contained three elements:
(i) an element in respect of the loss of those services provided by the deceased which were replaced by the defendant,
(ii) an element in respect of the loss of the services provided by the deceased which were not replaced by the defendant (an element often referred to as that of Regan v. Williamson [1976] 1 WLR 305),
(iii) an element of financial benefit from the deceased's earnings.
As to the third element, the judge plainly did take that into account, although he did not quantify it. Mr. Crowther argues for a figure of £2,500 for this aspect of the lost dependency, while Mr. Brent says it should be in the region of £4,500.
Turning to the second element, Mr. Crowther submits that the judge took it into account and that the right figure for it would be £4,000. Mr. Brent does not quarrel with that figure but submits that the correct interpretation of the judge's words are that he made no award under this head.
I have to say that I have not found the following passage in the judgment entirely easy to follow:
"I also bear in mind the fundamental principle that damages are compensatory and that in this case Danielle has, in the event, been looked after by her father to the date of trial. This benefit is something which is to be disregarded at common law in the sense that it is not to be set off against any quantifiable loss as on the authorities it is not a benefit which resulted from the death. It is, however, a factor in determining the existence or extent of any loss, at least to the date of trial, as it was by then a fact.
As against that the deceased would, in my view, probably have bestowed more attention on Danielle than her father has been able to do."
These words on their face suggest to me that the judge is saying that no loss exists under the first element, at least to the date of trial, because as a matter of fact she had been looked after by the defendant. Mr. Crowther submits, however, that the judge must have meant that the fact that the defendant has given those services did not mean there was no loss, but that it was a matter which affected the extent of the loss. Otherwise, he points out with some force, how does the judge get up to £20,000 for the total damages, when neither party suggests the damages for elements (ii) and (iii) together should exceed about £8,500? I think Mr. Crowther must be right and that the judge intended by his total award to cover all three elements.
The defendant's principal grounds of appeal are that the judge should not have awarded anything for element (i) since the plaintiff has not in fact suffered any loss under this heading by reason of her mother's death, and that to make her an award in respect of it would be to require the defendant to compensate her twice, he having already compensated her in kind by replacing the services of her mother with his own services.
A number of authorities were drawn to our attention. In Hay v. Hughes [1975] QB 790 the claim was under the Fatal Accidents Acts 1846 to 1959. Section 2 of the Fatal Accidents Act 1846 reads:
" ... the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought ... ".
The Court of Appeal held that a grandmother's voluntary service in looking after two boys following the death of their parents in an accident was not a service resulting from their mother's death within the meaning of section 2, and, accordingly, that service was not to be taken into account in assessing the pecuniary loss to the children of their mother's services. At page 809 C Lord Edmund-Davies said:
" ... the fact that the orphaned children here have incurred no expense in engaging a housekeeper to look after them does not destroy or diminish that right to be compensated which the defendant concedes would be theirs had such expense actually been incurred or had the grandmother given up a paid job in order to look after them ... while the need for the grandmother's care undoubtedly arose from the mother's death, the view which a reasonable jury would be likely to adopt would be that the children benefited not as a result of their mother's death but simply because the grandmother had taken it upon herself render them services."
In Spittle v. Bunny [1988] 1 WLR 847 (a case referred to by the learned judge in his judgment), where the claim was also under the Fatal Accidents Acts 1846 to 1959, Croom-Johnson L.J. made these observations at page 853G:
"In cases where an orphan has been taken in by a close relative there has been a general, though not universal, reluctance to say either that the orphan has suffered no loss or has acquired a benefit. The logical reason for not saying "no loss" is that no services can really replace the services of a mother (I repeat that the loss is one of actual services, not of love).
In the present case, no point was taken that Kate has suffered no loss at all. I cannot help thinking that if it had been, it would have been open to the jury to find that on the facts she was, if anything, better off with Mrs. Spittle than with her mother. She left the insecurity of a way of life (whatever it was) in which her natural father took so little interest in her that he abandoned her as soon as her mother was killed. She acquired instead a stable home and family relationship with her uncle and aunt and cousins. The trial judge spoke in glowing terms of the care devoted by Mrs. Spittle to Kate. But the point was not taken, nor was the matter fully investigated in the evidence, as would have been necessary. And, in view of the decision in Hay v. Hughes, the question of benefit resulting from the death was not argued either."
In Stanley v. Saddique [1991] 2 WLR 459 the Court of Appeal had to consider the effect of section 4 of the Fatal Accidents Act 1976 as amended by section 3(1) of the Administration of Justice Act 1982. This reads:
"In assessing damages in respect of a person's death in an action under this act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded."
In that case the infant plaintiff's mother had died in a motor accident. The trial judge found that the deceased was unreliable as a mother and that if she had lived the motherly services she was likely to have provided would have been of indifferent quality. By contrast, he found that the motherly services being provided by the plaintiff's stepmother were of a much higher standard. The Court of Appeal decided first that the quality and continuity of the services which the deceased mother would have provided were matters which should be taken into account in assessing the value of the plaintiff's loss of dependency; and secondly that the word "benefit" in section 4 was not restricted to pecuniary benefit but included the benefit accruing to the plaintiff as a result of his absorption into a new family unit including his father and stepmother, with the result that that benefit must be wholly disregarded for the purpose of assessing damages for loss of dependency.
The judgments in Stanley v. Saddique were not handed down until 18th May 1990, after the judge in the present case had reserved judgment. He did not become aware of the existence of that decision until the morning of 14th September 1990 when he was about to give judgment. Having then read a newspaper report of what the Court of Appeal had decided, he took the view that he would not hear further argument as it did not seem to him that that decision would be likely to affect his overall conclusion.
In fact Mr. Brent places strong reliance on the decision in Stanley v. Saddique and Mr. Crowther recognises that it is a hurdle he must overcome. He submits in the first place (encouraged by the remarks of Croom-Johnson L.J. in Spittle v. Bunny) that in so far as the defendant had replaced her mother's services the plaintiff had suffered no loss, but recognises that we may consider ourselves bound by Hay v. Hughes to reject that argument. So indeed I do.
He argues, however, that the crucial difference in this case, as opposed to Hay v. Hughes and Stanley v. Saddique, is that the services have been made good by the tortfeasor himself. The defendant has, he submits, compensated her in kind for the injury she has sustained. If he had paid for the services of a nanny, this surely would have been taken into account in assessing the damages: he should not be worse off for having replaced the services in kind. From there Mr. Crowther goes on to submit that if the provision of those services by the defendant is correctly to be regarded as compensation in kind and akin to damages, it cannot be a "benefit" within the meaning of section 4 of the Fatal Accidents Act 1976, since that section contrasts "damages" and "benefits", and something that has the characteristics of "damages" cannot at the same time be a "benefit".
Mr. Crowther further submits that it must be unjust for a tortfeasor to be compelled to pay damages for loss of services when he himself has replaced them at the cost of giving up his employment. If the decision goes against him, the defendant will in truth have lost three times over - he will have lost earnings, provided the services and then paid damages in respect of the lost services. One cannot even be sure in the present case that the insurers will pay the damages, since it is a Motor Insurers Bureau case and the MIB has a right of recourse against the defendant.
Attractively as Mr. Crowther puts his arguments, I find myself unable to accept them. The principle which emerges from the decision in Stanley v. Saddique is that there is to be no reduction in the amount of damages which would otherwise be awarded to take account of care voluntarily provided in substitution for the deceased's motherly services. That principle cannot, in my judgment, be affected by whether or not the person providing the care was the tortfeasor.
I would hold, therefore, that the judge was wrong in law to take into account to any extent the care provided by the defendant for the plaintiff in substitution for her mother's care since the latter's death. It follows that the amount he must be taken to have awarded under element (i), which is put by counsel at either £11,500 or £13,500, is too small. Taking account of the quality and continuity of the services which this mother was likely to have provided, of Mr. Brent's mathematical calculations, and of awards made in other similar cases, and in the end making a jury assessment as the judge did, I take the view that the correct overall figure for Fatal Accidents damages is £30,000.
I would, therefore, dismiss the defendant's appeal and allow the plaintiff's cross-appeal by substituting the figure of £30,000 for that of £20,000 for damages under the Fatal Accidents Acts plus interest as appropriate.
SIR DAVID CROOM-JOHNSON: Virtually every case which has lately been decided under Fatal Accidents Acts has emphasized that it is a jury case and must be treated accordingly. Virtually every case has also said that each case must be dealt with on its own facts.
The wording of the Act of 1846 section 2 provided:
" ... the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought."
The wording of the Fatal Accidents Act 1976, as amended by the Administration of Justice Act 1982, provides:
" ... such damages ... may be awarded as are proportioned to the injury resulting from the death to the dependants respectively ... " .
The two-fold nature of the exercise involved was explained in Malyon v. Plummer [1964] 1 QB 330, 349 by Diplock L.J:
"The pecuniary loss which the court has to assess is a loss which will be sustained in the future. This involves making two estimates, videlicet, (1) what benefit in money or money's worth arising out of the relationship would have accrued to the person for whom the action is brought from the deceased if the deceased had survived but had been lost by reason of his death, and (2) what benefit in money or money's worth (subject to certain statutory exceptions) the person for whom the action is brought will derive from the death of the deceased which would not have been enjoyed had the deceased lived. The difference between these two estimates is the measure of damages recoverable under the Fatal Accidents Acts 1846 to 1959."
A judge sitting alone has to direct himself as he would direct a jury and then put himself in the position of the jury to decide the facts. There are principles laid down which must be applied, but very often the reasoning of the judge is directed to the facts of the individual case, and in particular to the issues chosen by the plaintiff and the defendant in that case. Sometimes with a similar set of facts a pattern emerges; sometimes not. Where a benefit is not an actual pecuniary benefit but in "money's worth" the value of the benefit cannot be assessed unless the quality of the benefit is found. This applies particularly in cases brought on behalf of infants for the loss of the domestic services of a mother.
No difficulty arises in cases such as Regan v. Williamson [1976] 1 WLR 305, where compensation was given to cover the actual costs of the aunt who came in daily to keep house and mind the children, and also to cover the loss of the deceased's mother's care by night and at weekends. The problem arises in assessing the compensation where no such expense is actually incurred.
A landmark decision was Hay v. Hughes [1970] QB 790. In that case both parents were killed, leaving boys aged 4 and a half and two and a half. There was a claim for the loss of dependency on their father, and another for the loss of the services of their mother. They were, however, taken in to live by their grandmother, who became their surrogate mother. The loss of their mother's services was valued at £15 per week, being the cost which would have been incurred by their father in employing a housekeeper if he had not himself been killed. This sum was given a nine year's purchase and eventually assessed in the end at £8,500. The defendant contended that the value of the grandmother's services should be set against that sum in accordance with part (2) of Diplock L.J.'s exposition in Malyon v. Plummer. The Court of Appeal rejected the defendant's contention on the ground that there was no reasonable expectation that the grandmother would act as she did, and that the children benefited not as a result of their mother's death but from the generous action of their grandmother (pp. 808-809 per Lord Edmund-Davies). As Buckley L.J. (p 816) put it "generosity does not result from death." Consequently, the value of the grandmother's services did not have to be brought into account because it was not a benefit "resulting from" the mother's death. Ormrod L.J. (p.818) sounded a note of warning whether the current cost of a notional housekeeper is necessarily a reliable guide in such a difficult exercise.
After Hay v. Hughes it became frequent for the money's worth of the mother's services to be evaluated by the costs of what may be called the "notional nanny." Evidence of the commercial cost of engaging a nanny became common form, even though there was never any prospect that one would be hired, or that the family circumstances would have permitted it. It was no longer a matter of comparing like with like. It is suggested that the idea was approved by this court in Spittle v. Bunney [1988] 1 WLR 847, but that is to overstate. On this part of Spittle v. Bunney there were only two methods of valuing the lost services put forward. The defendant suggested using the cost of fostering, following up an idea advanced by Ormrod L.J. in Hay's case, but the evidence on that put forward did not compare like with like either. The plaintiff suggested the "notional nanny", and it was accepted by the trial judge. That was all the material that this court had to work on. By taking the "nanny" calculations, and using a multiplier of 11, the trial judge arrived at a figure (before interest) of £47,000. But he did not allow for gradual decreases in the multiplicand, and the Court of Appeal held that the judge had misdirected himself, and gave itself a fresh direction explicitly tailored to the facts of that case and the issues which had (or had not) been raised by the parties. This court then assumed its jury function and reduced the award from £47,000 to £25,000, reducing the multiplicand by unspecified amounts.
Since then in other cases a diminishing multiplicand has been used so as to comply with this court's direction to itself in Spittle's case. In the present case the trial judge did so. In Stanley v. Saddique [1991] 2 WLR 459, the multiplier/multiplicand method of assessment was used, based on evidence given by a Mrs. Wasmouth who runs an employment agency for nannies and housekeepers. The circumstances of the deceased mother were not such that either would ever have been or be used. Using a dwindling multiplicand to comply with Spittle's case the judge assessed the damage for loss of services at £24,000 on a multiplier of 12 years. On that part of the case this court held that the judge had failed to apply his own findings of fact on the extreme unreliability of the mother, who was a bad mother. After an amendment of the grounds of appeal, that sum was reduced to £10,000. Purchas L.J. at p.470 said that the matter of loss of dependency was a jury guestion, and continued:
"That having been said, the duty of the court is to do the best it can to arrive at some figure which a jury might well have awarded had it taken into account all the circumstances. I consider that such was the lack of steady prospect of support that the multiplier/multiplicand approach is, as the judge indicated at one point in his judgment, guite inappropriate, although in the event he carried out an exercise of this kind."
The judge in the instant case was not referred to Stanley v. Saddique. He saw a brief newspaper report just before giving judgment, and said he did not think it likely to affect his overall conclusion. One fresh point in it is that it considered the amendment to the Fatal Accidents Act 1976 made by the Administration of Justice Act 1982. This rewrote sections 3 and 4 of the 1976 Act as follows:
"3(1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively ...
4. In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of this death shall be disregarded."
Section 4 replaced the Fatal Accidents Act 1976 section 4 which had listed and defined a number of financial benefits which, under that Act, were to be disregarded.
The Court of Appeal, in Stanley v. Saddique, construed the new section 4 broadly. It held that the fact that the infant plaintiff had, after an interval, gone to live with his father and a new stepmother and her family and so been absorbed into a new family was a "benefit" which should be wholly disregarded. One cannot help observing that in Hay v. Hughes the plaintiffs acquired a home with their grandmother and so obtained a "benefit" which was to be disregarded because it did not result from their mother's death, while in Stanley v. Saddique a similar process was disregarded because it did result from the mother's death. Be that as it may, Stanley v. Saddique is binding on this court, and it remains to be seen what is its effect on the instant case.
The facts of the instant case have been fully set out in McCowan L.J.'s judgment. He has also set out the figures arrived at by the judge. The salient facts I now give.
The judge accepted the evidence of Sheila Davis, who runs a nanny agency, of the cost of providing a nanny until Danielle was 11, and thereafter at half cost until she was 15. At a multiplier of 11 this would come to £48,000. That calculation was clearly intended to provide for a dwindling multiplicand in accordance with Spittle v. Bunney. But the judge did not use them in his award of damages. He awarded £20,000 plus £1,000 general damages for minor personal injuries. His reduction of the sum to that which he awarded must therefore have been for some other reason.
Having held that the plaintiff is entitled to damages in her own right for the loss of her mother's services, he said:
"The fact that the defendant has provided substitute services does not defeat the claim in principle ...
Mr. Hayden's evidence as to his personal circumstances, his reasons for selling his business, and his future work plans was not entirely clear, and I am content to consider the costs of a nanny as a relevant fact."
Having stated that he accepted the figures supplied by Sheila Davis, he continued:
"I also bear in mind the fundamental principle that damages are compensatory and that in this case Danielle has, in the event, been looked after by her father to the date of trial. [That is, from 30th August 1983 until 14th September 1990]. This benefit is something which is to be disregarded at common law in the sense that it is not to be set off against any quantifiable loss as on the authorities it is not a benefit which resulted from the death. It is, however, a factor in determining the existence or extent of any loss, at least to the date of trial, as it was by then a fact."
He next dealt with the £30 per week paid to the deceased for her secretarial work and her general value to the success of Mr. Hayden's business, ending with:
" ... I am satisfied by the evidence as a whole that the deceased would, over the years, have made a significant contribution to the family income in general, and Danielle in particular."
He made no findings of facts on the conflict of evidence between the deceased's mother, which was full of ill-will, and the more balanced evidence of Mr. Hayden, but I agree with McCowan L.J. that the judge really cannot have accepted the strictures of Mrs. Ford about her son-in-law.
The judge's findings on figures I read in full:
"The figure I have arrived at is £20,000. I would apportion it as to £15,000 to trial and £5,000 for the future. [Seven years of the multiplier has by now expired.] I am conscious that this is not mathematically the same apportionment as Spittle v. Bunney which is comparable as to the age of the plaintiff and the period from accident to trial, but I regard Danielle as more vulnerable in the future than was Kate in Spittle v. Bunney, and I have had regard to the fact of Mr. Hayden's services to trial in assessing Danielle's actual loss and the nature and extent of it. I find that it has been significant but she has been cared for and to approach the full commercial cost of a nanny would, in my view, be unrealistic. This aspect of the matter was wholly disregarded in Spittle v. Bunney pp. 853H et seq, because the point was not argued and the evidential basis for its consideration was absent."
What the judge was referring to in that last sentence was the different point, never canvassed in Spittle's case, of "has the plaintiff suffered any loss at all?" but he was clearly attaching importance to Mr. Hayden's services to his daughter when assessing her damages. It seems that what he had in mind was the first part of Diplock L.J.'s equation in Malyon v. Plummer.
The judge did not reveal the process by which he arrived at his figure of £20,000. Neither did the Court of Appeal in Spittle v. Bunney or Stanley v. Saddique. Mr. Crowther submits that the figure contained
(i) an element in respect of the loss of services provided by the deceased which were replaced by the defendant.
(ii) an element in respect of the loss of the services provided by the deceased which were not replaced by the defendant.
(iii) an element of financial benefit from the deceased's earnings.
Item (iii) was plainly included, but I am not persuaded that items (i) and (ii) were treated separately. Mr. Crowther submits that the total award under (i) if it was separately priced) would have been £13,500. Mr. Brent puts that figure at (say) £11,500 and has also submitted that the total should have been £30,000 a figure suggested by the plaintiff to the judge at trial. If £30,000 had been accepted (which it was not), then the figure for (i) would be £21,500, and Mr. Brent has tried to explain that by some ingenious calculations based upon Sheila Davis' evidence. I am not persuaded that they do so.
The fact is that neither £13,500 nor £21,500 is explicable if worked out mathematically on the cost of a "notional nanny." On the facts of this case the whole concept of valuing the lost services by reference to a "notional nanny" is inappropriate. Whether this expedient is useful in other cases is another matter, but there is no room for using it when on the facts a nanny would never have been employed. Mr. Hayden was not going to use one, and never did. The fallacy in employing that device was exposed in argument when it was asked "what would have been the position if Mr. Hayden had actually employed a nanny and paid for her himself? Mr. Brent's reply was that Danielle would still have been entitled to make her claim on the basis of a "notional nanny" with the result that Mr. Hayden would have ended by paying twice. Mr. Crowther's reply to that was that it would penalise a tortfeasor to make him do so; the same would apply if he had given up his work. This, said Mr. Crowther, would be against public policy. But there is no need to introduce a special rule to protect tortfeasors. The jury, approaching this assessment, would have ignored all questions of a "notional nanny", and simply gone on the established facts of what had happened in the past and was likely to happen in the future.
The judge's reasoning is not clear, but in my view that was his approach in the passage:
" ... I have had regard to the fact of Mr. Hayden's services to trial in assessing Danielle's actual loss and the nature and extent of it. I find that it has been significant but she has been cared for, and to approach the full commercial cost of a nanny would, in my view, be unrealistic."
Speaking for myself, this is a case where the multiplier/multiplicand cost of a nanny is wholly inappropriate. To make use of it contrary to the known facts, even to the extent of making the defendant pay twice, is against commonsense. What the judge did was to make a jury assessment of what in the circumstances the compensation would be, but if he wished to pay some regard to the costs of a "notional nanny" I would not criticise him.
If the result of making an allowance for the fact that the defendant has himself continued to act as a loving father means that his ultimate financial liability to Danielle is smaller, there is nothing wrong or objectionable in that. Emotive phrases like allowing the defendant "to profit from his wrongdoing" are beside the point. It is preferable to say that what he has done has had, as one result, the reduction of his liability. Mr. Crowther has submitted that to award any damages under his heading (i) was wrong in law, but I do not think it was. There must be a claim for loss of the mother's services, in the circumstances of this case, over and above what Mr. Hayden has been able to replace. The judge has included it, and rightly so, although he has not particularised the amount. However, Mr. Crowther has kept this point open should he wish to rely on it elsewhere.
In the plaintiff's cross-notice, three points are really made. One is that the judge failed to take into account the extra services (Regan v. Williamson [1976] 1 WLR 305 provided by a mother who is liable to work longer hours than any substitute. Like McCowan L.J. I think that such an element was clearly included. The second is that the £20,000 award was simply too low. But in his skeleton argument Mr. Brent puts it in this way: "Save that the award was too low, the learned judge applied the law correctly". If the judge, having directed himself correctly, came out with a jury assessment, it is not sensible to replace it with a different one unless the original one is manifestly wrong, and I do not think that is so. The suggestion that there is an enforceable pattern of comparable awards, updated for inflation, was negatived by Purchas L.J. in Corbett v. Barking Health Authority [1991] 2 QB 408 at page 431.
The plaintiff's third point is based on the Fatal Accidents Act 1976 section 4, which was considered by this court in Stanley v. Saddique [1991] 2 WLR 459. The terms of section 4 have already been set out in this judgment. The plaintiff's point is that the result of her father caring for her instead of her mother was that a benefit accrued to her, or might in the future accrue to her, and that accordingly it was to be disregarded under section 4 in assessing damages.
The facts in Stanley v. Saddique were that the father and mother were not married to each other. They lived irregular and uncertain lives, sometimes together, sometimes not. At the time of the mother's death the infant boy plaintiff was being looked after by his mother who was in casual and ill-paid work. Later, the father met a woman called Tracey, married her, and moved into her flat. Seven months after the mother's death the plaintiff went to live with his father and Tracey. The father settled down, the marriage was successful, Tracey was a good stepmother and the new home was stable. The defendant contended that the plaintiff was a gainer rather than a loser as a result of his mother's death, but the judge held that the father's marriage was irrelevant, and also irrelevant was the fact that the father gave full financial support to the plaintiff.
The Court of Appeal held that in section 4 the word "benefit" was to be widely construed and was not to be restricted to financial benefits of the kind which, before 1982, had been specifically excluded from consideration in assessing damages. It held (Ralph Gibson L.J. dubitante) that the benefit accruing to the plaintiff as a result of his absorption into a new family consisting of father, stepmother and siblings was a benefit which had accrued to him as a result of his mother's death, and was not to be brought into account in assessing his damages.
It may be that section 4 has rendered nugatory the second part of the equation stated by Diplock L.J. in Malyon v. Plummer to which reference has been made at the beginning of this judgment. But under both the 1846 Act the benefit (to be regarded) and the 1976 Act the benefit (to be disregarded) have to "result from the death". The facts in the instant case, however, are wholly different from those in Stanley v. Saddique. Danielle remained in the family home with her father and, for a time, with her older brothers and sisters until they left home. She continued to be looked after by him. No reasonable judge or jury would regard Mr. Hayden, in doing what he did, as doing other than discharge his parental duties, many of which he has been carrying out in any event, and would be expected to continue to do. The reasoning of the trial judge in the instant case seems to be that he was making the first of Diplock L.J.'s two estimates, that is, of the initial loss to the plaintiff caused by the death of the mother. Whether that is so or not, the continuing services of the father are not a benefit which has accrued as a result of the death. In the end, what is a "benefit" must be a question of fact.
Accordingly both the appeal and cross-appeal should be dismissed.
McCowan L.J. has dealt in his judgment with the application to admit further evidence. I agree with his conclusion that the evidence should not be admitted. It is to be noted that on 19th February 1990 the plaintiff's next friend, Mrs. Ford, swore an answer to interrogatories in which she made it clear that since the death the plaintiff has lived with the defendant, and the action was clearly fought on that basis. The proposed new evidence would not, in my view, have had an important effect on the judge's mind.
LORD JUSTICE PARKER: It was long ago established that a dependant child could recover under the Fatal Accidents Act damages for the loss of the gratuitous services of a deceased mother who had been killed due to the negligence of a tortfeasor. In such cases, even without complications, the court is faced with the task of quantifying in money that which cannot in reality be so quantified. This is difficult enough but the facts of this case are such that the difficulties of reaching a just solution are greatly increased.
The essential facts are that the infant plaintiff (Danielle) who was aged 4 at the time of the accident lost her mother's services, that in order himself to replace such services, her father whose negligence had caused her mother's death gave up his employment to look after her and that his remuneration from his former employment had been £15,000 p.a.
For the defendant it is submitted that the value of his services should be taken into account i.e. set against the value of the mother's lost services in arriving at her loss and for the plaintiff that the father's services must be wholly disregarded by reason of the provisions of section 4 of the Fatal Accidents Act 1976 as amended by the Administration of Justice Act 1982.
That section reads:
"In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded."
For the defendant it is pointed out that if his services are to be disregarded he will in effect be paying damages three times over. First he will be providing replacement services free of charge, secondly, he will be paying for the services which he has so provided, and thirdly he will have lost his employment in order to provide such services. This is true and on the face of it appears not to be in accordance with justice. Furthermore in cases in which it is shown that the services of the father are in every respect as good as, or even better than the services previously provided by the mother it is, again on the face of it, difficult to see that the child has suffered a recoverable lost. He will or she will of course have been deprived of the mother's love and affection but it is not and could not be suggested that this loss sounds in damages.
In order to determine whether the defendant's contention is well founded it is, I fear, necessary to embark on an examination of the authorities.
It is convenient to start with the decision of this court in Hay v. Hughes [1975] QB 790. In that case both the parents of two children aged four and a half and two and a half were killed in a motor accident. The administrators brought an action under the Fatal Accidents Acts 1846 - 1959 claiming damages inter alia in respect of the loss of the mother's services. After the death the children's grandmother took them into her home and cared for them as an unpaid mother substitute. The judge assessed the value of the mother's services which had been lost at £1,000 p.a. and declined to make a deduction in respect of the substitute services provided by the grandmother. This court held that he had been correct in so doing.
It is important to note that at that time there was no equivalent to section 4 of the 1976 Act. To justify a deduction required that the services of the grandmother resulted from the death of the mother. This court held that the services of the grandmother did not so result.
This requirement was not statutory. The principal statutory provision was section 2 of the 1846 Act which so far as material provided:
"... the jury may give such damages as they may think proportional to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought."
The courts had concluded that against the gross loss suffered there could only be set benefits resulting from the death.
Lord Edmund-Davies, having examined the earlier authorities said at p.808:
"How would a jury have regarded this case? Would they have accepted the defendant's invitation to say that, in the events which have occurred, either (a) no loss measurable in money terms had been suffered by the dependant children by reason of the death of their mother, or, (b) alternatively, that the services already rendered by the grandmother are 'benefits resulting from the death' and should therefore be taken into account, with the result that all the children were entitled to recover was something to safeguard them against the contingency that, for one reason or another, her services might cease to be available? Or, as the plaintiff's counsel at the trial and before us contended, would they say that, by reason of their mother's death, the children had lost her services which, had their father not also died, would have been replaced by a paid housekeeper, and that compensation should therefore be assessed by reference to the probable cost of so doing; that damages should be calculated on this notional basis even though the children were in fact housed and cared for by the gratuitous services of their grandmother; and that these services were not benefits 'resulting from the death' and therefore do not require to be brought into account?"
And then having rejected (a) at page 809 Lord Edmund-Davies said:
"As to (b), in my judgment, while the need for the grandmother's care undoubtedly arose from the mother's death, the view which a reasonable jury would be likely to adopt would be that the children benefited not as a result of their mother's death but simply because the grandmother has taken it upon herself to render them services. At the time of their mother's death it was anyone's guess what would happen to them and the defendant has not discharged the onus of establishing that at that time there was a reasonable expectation that the grandmother would act as she subsequently did. Then aged 49, she already had substantial domestic responsibilities of her own (she had three teenage children and she too lived in a three bedroomed house) and it would not have been surprising had she decided against adding to them. In my judgment, it would be an unreasonable conclusion were a jury or judge of fact to hold that, because she was moved by their plight to act as she did, her generous action fell within section 2 of the Act of 1846.
For these reasons I hold that the judge rightly came to the conclusion that the grandmother's services should be ignored in calculating the financial loss sustained by the children as a result of the death of their mother."
Buckley and Ormrod LJJ gave judgments to the like effect.
By the time Hay v. Hughes was decided there had already been statutory exceptions to the so-called rule that benefits resulting from death could be taken into account but except where covered by such exceptions the rule still applied.
In Spittle v. Bunney [1988] 1 WLR 847 under the Fatal Accidents Act 1846 to 1959 damages were awarded in respect of a child (Kate) aged three and a half at the date of the accident in which her mother was killed. She was taken into the family of an aunt who was described in the judgment of Croom-Johnson L.J. as a loving substitute mother. By the date of the trial the child called her "Mum".
In that case no deduction was made in respect of the aunt's services but at page 853 Croom-Johnson L.J. said:
"In the present case, no point was taken that Kate had suffered no loss at all. I cannot help thinking that if it had been, it would have been open to the jury to find that on the facts she was, if anything, better off with Mrs. Spittle than with her mother. She left the insecurity of a way of life (whatever it was) in which her natural father took so little interest in her that he abandoned her as soon as her mother was killed. She acquired instead a stable home and family relationship with her uncle and aunt and cousins. The trial judge spoke in glowing terms of the care devoted by Mrs. Spittle to Kate. But the point was not taken, nor was the matter fully investigated in the evidence, as would have been necessary. And, in view of the decision in Hay v. Hughes, the question of benefit resulting from the death was not argued either."
This passage is clearly "obiter" but clearly accords, if I may respectfully say so, with common sense.
In Stanley v. Saddique [1991] 2 WLR 459, this court had to consider a case in which section 4 of the 1976 Act was in question and in which the facts were that the deceased's mother's services, had she lived, would have been of indifferent quality and lacking in continuity, but that, by contrast, the motherly services provided (after an interval) by her stepmother were excellent and of a higher standard than could reasonably be expected of the deceased. The situation was thus that which had been envisaged by Croom-Johnson L.J. in Spittle v. Bunney.
For convenience I set out again section 4 of the 1976 Act:
"In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded."
In his judgment Purchas L.J. said at page 468:
"The problem is to decide whether in construing the new section 4 there is any justification for construing the words 'benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded' as in any way being restricted or whether they should be given the full ambit of the word 'otherwise'. Mr. Clegg submitted that the specific exclusion of a widow's remarriage or prospects of remarriage from the assessment of damages provided in section 3(3) indicated that 'otherwise' must be restricted in some way, otherwise 3(3) was otiose. He suggested that the exclusion should be restricted to direct pecuniary benefits. However, if this course is taken the word 'otherwise' would not be sufficiently wide to reinstate the various rights to benefits which had been progressively introduced since the Act of 1908 culminating in the sections of the Act of 1976 which were wholly replaced by section 3(1) of the Act of 1982. As a result of the passage of this Act none of the pre-existing statutory exemptions from the deductions of benefits from Fatal Accident Acts damage survived unless it is through the medium of the word 'otherwise'. It seems inconceivable that Parliament would have effected a wholesale repeal of all the longstanding previous statutory exceptions from the deduction of benefits by a side wind of this sort with the exception of the exclusion of the prospects of remarriage on the part of the widow (semble but not the widower). In my judgment, the preferable construction is that advanced by Mr. Ashworth, namely, that section 3(3) was left in as being a particularly significant question of policy, but that by section 4 Parliament intended to further the departure from ordinary common law assessment of damages for personal injuries by the artificial concept which has for many decades been the basis of damages recoverable under the Fatal Accidents Acts."
It is thus clear that he regarded the services of the stepmother as being a benefit resulting from the death of the deceased which is directly contrary to the decision in Hay v. Hughes.
On the point of construction Ralph Gibson L.J. with hesitation agreed with Purchas L.J. and Sir David Croom-Johnson agreed with both judgments.
With conflicting decisions on the point whether the gratuitous services of a relative do or do not result from the death of the mother I for my part have no hesitation in following Hay v. Hughes rather than Stanley v. Saddique and if this is right section 4 does not apply. This however does not dispose of the matter because in Hay v. Hughes the benefit of such gratuitous services was excluded, quite apart from any relevant statutory exclusion, on the grounds that they did not result from the death. That decision was considered to be the result of section 2 of the 1846 Act and the common law. Section 2 of that Act has now been replaced by section 3 of the Fatal Accidents Acts 1976 as substituted by section 3(1) of the Administration of Justice Act 1982. As so substituted section 3(1) of the 1976 Act reads:
"In the action such damages, other than damages for bereavement, may be awarded as are proportionate to the injury resulting from the death to the dependants respectively."
There is no material difference between this provision and section 2 of the 1946 Act. The reference to the jury is dropped but this is immaterial. Damages remain a 'jury question' albeit now decided by a judge. This is plain from Hay v. Hughes itself. In that case, however, Lord Edmund-Davies cited a passage from the judgment of Lord du Parcq in Monarch Steamship Co. Ltd. v. Karlshamns Oljefrabriker (A/B) [1949] AC 196 at 232 as follows:
"'... in the end what has to be decided is a question of fact, and therefore a question proper for a jury.' And continues: 'Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality, and not too rigidly applied. It was necessary to lay down principles lest juries should be persuaded to do injustice by imposing an undue or perhaps an inadequate, liability on a defendant. The court must be careful, however, to see that the principles laid down are never so narrowly interpreted as to prevent a jury, or judge of fact, from doing justice between the parties. So to use them would be to misuse them.'"
He then dealt with the matter as I have already shown on the basis that the question was a jury question.
Lord Justice Ormrod L.J. at page 817 said:
" ... it would appear that Parliament intended the jury to make a comparison between the position of the dependants before and after the relevant death, and award damages 'proportioned' to the difference, excluding of course, benefits acquired after, but independently of the death."
And Buckley L.J. at page 815 said:
" ... it is not possible to discover from [the authorities] any established principle by which we should decide whether the benefits which Mrs. Toone has conferred and is conferring upon her grandchildren should be taken into account in the present case. The question remains, in my opinion, a jury question in the sense indicated at the beginning of this judgment, and must be answered accordingly in the way which seems fair in the light of all the circumstances of the case."
In my judgment before one gets to section 4 it must first be established what injury has been suffered by the child. What it has prime facie lost, is the services provided by the mother but the fact that they were provided by the mother is irrelevant. If in fact those services were replaced without interval of time up-to-date of trial by as good or better services it is in my view at least open to a judge or jury to conclude that the child has lost nothing up to that date. But if the replacement services can be discontinued it is of course exposed to the risk that such services may be discontinued and that risk must be quantified.
This was the approach of Buckley J. where he said:
"I also bear in mind the fundamental principle that damages are compensatory and that in this case Danielle has, in the event, been looked after by her father to the date of trial. This benefit is something which is to be disregarded at common law in the sense that it is not to be set off against any quantifiable loss as on the authorities it is not a benefit which resulted from the death. It is, however, a factor in determining the existence or extent of any loss, at least to the date of trial, as it was by then a fact."
An application of this approach is to be found in Auty v. National Coal Board [1985] 1 WLR 784.
If then it is a jury question, would a jury be likely to say that the tortfeasor who had provided the services and given up his job so to do must nevertheless pay what it would cost to provide the services which he himself has provided. That a jury could conceivably come to the conclusion must I suppose be accepted but if it reached the opposite conclusion it could not in my view be held to have reached an unreasonable verdict. Suppose for example that the deceased mother was hopelessly inadequate, that the tortfeasor was a trained nanny and, appalled by what she had done, gave up her job and provided the child with services infinitely better than those provided by the deceased mother. Can it possibly be the law that she must then pay the cost of employing another nanny. I think not and, if it were, I would regard it as regrettable.
What then has the judge done in this case? He had before him a figure of £48,000 as being the full cost of a nanny until Danielle was 11 and a half such cost from 11 - 15. He then, without giving specific reasons concluded that an appropriate figure would be £20,000 apportioned £15,000 to date of trial and £5,000 thereafter. I do not consider that we have before us material to enable us to interfere with this award, which if I am right as to the approach, appears to me to be an entirely reasonable award and to do justice between the parties would therefore, like Sir David Croom-Johnson, dismiss both appeal and cross-appeal.
I would add by way of postscript that, where the provider of the replacement services is the tortfeasor, arguments successfully advanced in earlier cases that it would be unjust
if the tortfeasor were to benefit from the generosity of a third party cannot apply.
Appeal dismissed with costs. Cross-appeal dismissed. No order for costs. Legal aid taxation.
