LORD JUSTICE PURCHAS: This appeal raises important issues concerning the assessment of damages "proportioned to the injury resulting from the death ... to the dependents respectively ..." (Section 3(1) Fatal Accidents Act 1976-"the 1976 Act") in the case of an infant dependant who has lost the support of his or her mother immediately following his birth. The claim, which is brought by Richard Brian Corbett ("Richard") through his father and next friend Brendan Desmond Corbett ("the father"), arises out of his mother's death for which the defendants, the Barking, Havering and Brentwood Health Authority admit responsibility in negligence. The assessment of the loss of dependency has been complicated by the immense delay between the death, which took place at a time when the infant was but a few weeks old, and the trial some eleven and a half years later. In these circumstances it is necessary to set out in summary form the relevant history.
Family history
Richard was born by Caesarean section on 27th October 1977. His mother, who was 29 years of age, died on 12th November 1977 as a result of complications of lung infection caused by mismanagement of anaesthetic procedures during the operation. Richard was her first child. The father is a process engineer employed by the Ford Motor Company. He had joined the company at the age of 16 and served a six-year apprenticeship.
The death caused the father severe shock and reaction against Richard who was seen as a contributory cause of the death. For the next eighteen months to two years the father played little part in the upbringing of Richard who was effectively reared by his paternal grandparents to whose home the father with Richard had moved after the mother's death. After two years the father become reconciled to the position and started taking a much more positive attitude towards Richard. This position developed to the extent that after the first few years, so long as his work schedule allowed it, the father played a substantial role in looking after Richard. When Richard was about three years of age the father established a home for himself and Richard, first in a flat and later a house; but both were near to his parents' home where he still spent most of his time taking all his meals there. Richard remained in the care of his grandparents while his father was at work.
Insofar as the grandmother was capable of doing so, <;he acted in place of Richard's natural mother. The father's evidence was that she had given Richard a mother's care and comfort and had done "a first rate job looking after Richard". He said that had his wife survived "they would probably have had one or two more children. My wife would have stayed at home to look after them, even after they had started to go to school". At the time of the trial in June 1989 Richard had reached the age of eleven and a half and was about to leave junior school in the summer and move to one of the best senior schools in the area, namely the Royal Liberty School at which he had already secured a place.
Legal proceedings
It is now necessary to touch upon the regrettable history of the proceedings. I have extracted one or two landmarks from the long chronology contained in the court bundle. It is clear that almost immediately after the mother's death the father consulted a firm of solicitors, Messrs Hunt and Hunt. At this stage the claim, under the 1976 Act, was being made solely on behalf of the father and did not include any claim on behalf of Richard. A legal aid certificate was granted in March/April 1978; a writ was issued on 5th May 1978 but not served. No further action was taken to extend the writ which would, therefore, have expired on 4th May 1979. An expert was consulted in August 1978 after which nearly another year passed until May 1979 when this witness said that he had no time to prepare a report. In June 1979 a report was received from another medical expert.
In November 1979 the father instructed another firm of solicitors to whom in December 1979 the legal aid certificate was transferred; these were Anthony Thipthorpe Company. They commissioned another medical report from third expert and in April 1980 they approached the authority requesting medical records, etc. In January 1981 counsel was instructed and a letter before action making a claim in respect of the father alone sent in February 1981. In June 1981 the authority made an offer to settle the father's claim in the sum of £2,000 plus costs which was accepted by Messrs Anthony Thipthorpe and Company on 17th August 19891, the father signing a form of discharge in September 1981. None of these documents has been made available to the court.
It was not until May 1982 that the father's present solicitors were instructed and a claim initiated on behalf of Richard. Legal aid was granted over a year later in August 1983. In October 1983 a letter before action was despatched setting out a claim against one of the former firms of solicitors (which one is not identified). In March 1984 the writ against those solicitors was issued and served. This action has been stayed pending the present litigation. The process of obtaining legal aid to pursue the authority on behalf of Richard took place between March 1984 and August 1984. Between July 1984 and June 1985 information was being sought from the authority, or their solicitors, in order to formulate the claim in negligence. A delay of this nature is, in my judgment, especially regrettable where the ground of the claim is medical negligence. It is surprising that an effective claim was mounted at all. The letter before action to the authority was dated June 1985 and a writ was issued in August 1985 and served followed by an amended statement of claim in the same month. Pleadings then ensued but the action was not set down for trial until September 1987. Liability was disputed until just before the trial when the authority admitted negligence and the trial proceeded solely on the question of damages.
The trial
The case presented for Richard before His Honour Judge Hayman was based upon the traditional approach in cases of this kind since the case of Hay v. Hughes [1975] 1 Q.B. 791, namely establishing as the best "instrument" for assessing the loss of dependency the cost of a nanny/carer over the period during which he would be expected to receive the benefits of dependency but ignoring the value of the support he had in fact received from his grandparents.
Before trial the plaintiff's advisers had submitted detailed schedules and tables summarising the evidence which they intended to put before the judge to establish the cost of providing such care and attention. In addition the claim was enhanced by an element in addition to the pure commercial value of hiring a replacement to represent the special features of a mother's care and attention. Evidence was called by both parties to establish the value of the services of a nanny and also to establish the duration of the expected dependency. There was an immediate issue to which I must return later in a little more detail as to whether or not it would be likely that Richard would have proceeded to further education beyond the age of 18.
The judge came to the following conclusions nearly all of which are challenged by Mr. McGregor who presented this appeal on behalf of Richard.
- That Richard would have been dependent upon his mother until the age of 18:
"In my judgment, from a realistic point of view (to adopt the words of Croom-Johnson L.J. in Spittle v. Bunney), the maximum period to be covered by the award is until Richard is 18, which is 18 years from the death of his mother ... That is not only the age of majority but it is about the age when Richard would be likely, in the normal course of events, to leave home and achieve his independence".
- In rejecting the question of further education the judge said this:-
"The onus of establishing that Richard is likely, on the balance of probabilities, to proceed to tertiary education is on the boy himself, as plaintiff. In my judgment he has failed to discharge that onus. On the evidence the position is evenly balanced: he may or may not go on to higher education".
- The figure for the commercial value of the services of a nanny/carer to be used as the basis for the computation of loss of dependency was:-
"In my judgment, what must be taken into account is the net in hand figure only; that is the actual amount of money left in the nanny/housekeeper's hands after she has paid her tax and National Insurance contributions. ...
In the result, on the basis of the 'nanny' formula the net in hand figure for the nanny/housekeeper for 52 weeks in the year is, in my judgment, the appropriate figure to be used in valuing the lost services. All other items of notional expenditure are irrelevant and are to be left out of account".
- That the net in hand wage at the date of trial was £100 per week. This was generally speaking accepting the evidence of the experts called for the defendants rather than the plaintiffs; that the corresponding figure in 1977 was £40 and that, taking a very rough average approach, the figure thereafter increased by about £5 a week each year, which he took as an increase of £260 a year.
- In applying this basic figure to the loss of dependency no discount was to be taken between the date of the death of his mother until he reached the age of five or six when Richard would start going to school. The total for this period starting at £45 a week and, increasing as indicated, came to £17,940.
- For the period from the age of six until the date of trial, namely five and a half years approximately, the judge, in order to reflect the decreasing reliance of Richard upon his mother over these years including less requirement for supervision because he would be attending school, took one-half of the total cost of the nanny/housekeeper on the following basis:
"Again taking the net in hand figures in accordance with my findings. This, it may well be, is an under-valuation for the first year or so and it may be an over-valuation for the final year or so, but I have little doubt that it evens out overall. In my judgment it would be inappropriate to make any adjustment for such under- or over-valuation; that would be an unnecessary complication".
On this basis he started the scale at £75 a week (the 1984 figure) and worked forward from that, arriving at a total cost at the full rate of £24,700 which he discounted to a half at £12,350.
- The total figure, therefore, for the period from October 1987 to May 1989 was £30,290 (£17,940 + £12,350).
- The judge then turned to the remaining six months of the multiplier which he had taken as 12 being the appropriate discounted figure for a dependency lasting 18 years working from the date of death. This resulted in a multiplier of 0.5 to which he applied the full figure of £5,200 a year, arriving at the figure of £l,300 by taking six months at half the rate.
- The total award, therefore, of damages subject to interest was £31,590.
- The judge then looked at the figure in the overall context:-
"I now stand back and look at the matter as would a jury, asking himself this question: subject to the second head of damages, does that figure of £31,590 properly reflect the value of the services of the mother which have been lost to Richard during his dependency? Subject to the figure being rounded up to £32,000 the answer, in my judgment, is that it does".
- That, although the nanny/housekeeper worked considerably less hours than the mother would devote to Richard, in the particular circumstances taking into account the positive contribution of the father, there was no need for any adjustment to the overall figure which he had reached at this stage.
12. The so-called second head of damage was based on paragraph 1588 of McGregor on Damages, 15th Edition. The judge did not wholly accept Mr. McGregor's submissions based upon the special nature of the benefits received from the mother as described in Mehmet v. Parry [1977] 2 All E.R. 529 and Regan v. Williamson [1976] 1 W.L.R. 305:
"I turn to the second head of damages claimed, the loss of the mother's personal services or care to date and in the future. Mr. McGregor's submission^ here can best be formulated by reference to paragraph 1588 of his book. It is there stated:
'[It may be argued] that the benefit of a mother's personal attention to a child's upbringing, morals, education and psychology, which the services of a housekeeper, nurse or governess could never provide, has in the long run a financial value for the chid, difficult as it is to assess'. ...
As far as Mr. McGregor's submission is concerned (as set out in his book), in my judgment there is no such head of damage in English law; at any rate, it is not open to this court so to hold. But if I may say so with respect, I am in full agreement with the view stated by Watkins J. in Regan v. Williamson that the term 'services' is to be given a liberal and not a restrictive interpretation.
In a case where one is concerned with a commercially hired nanny/housekeeper, the gap, as it were, between her services and those performed by a mother can readily be seen. The gap is less apparent in the case of a nanny/housekeeper acting as a substitute mother (a proxy parent). In the present case, however, the substitute mother is the grandmother and she, in my view, is the next best thing to the mother herself. The grandmother has acted out of love and affection not for financial gain, and I am sure she has done as much for Richard as if he had been, in truth, her ninth child. I would think there is little, if anything at all, between the quality of the service given by the grandmother and that which would have been given by the deceased mother.
Having said all that, the grandmother had just turned 57 when he was born and when Richard was born and she is now approaching 69. [sic]. When he is 18 she would be 75. It seems to me, on the medical evidence that the grandmother has a reasonable prospect of being alive at that time when Richard has his 18th birthday but how active she will then be is a matter of some speculation. The mother, I understand, was 29 years old when she died. Had she survived she would be 40 today. It seems to me that with the best will in the world the grandmother, by reason of her age has not been and will not hereafter be able to devote as much of her time and energy to Richard as the mother would have done (I assume here, and have no reason to believe otherwise, that the deceased woman would have been a good mother, and I accept from Mr. Corbett that she would not have returned to outside employment). I mention that there were other children in the grandmother's house. (I refer in particular to Richard and Claire) so that Richard was not the only child who required the grandmother's attendance. However, as Richard would probably not have been the only child had his mother survived (I accept Mr. Corbett's evidence on this), not much can be made of this point although it has some relevance in the context of the grandmother's age. I judge, therefore, that there has been, and will be, some loss of services here, some diminution in the personal care and attention which Richard would have been likely to receive from his mother h ad she survived. I think that this properly sounds in damages, but in my judgment in a modest sum only.
Again I stand back and look at the matter as would a jury. On that basis the appropriate award, in my judgment, is the sum of £3,000. Adding this to the other figure, the total award is therefore £35,000".
- Of the sum of £32,000 the judge apportioned this as to £30,700 for the period up to the date of trial and £l,300 thereafter and the sum of £3,000 as to £2,875 for the period up to trial and £125 thereafter. There was no attack on the figure of £3,000 by Mr. McGregor and it was not challenged in the respondent's notice. I will, therefore, say no more about this.
The multiplicand
Mr. McGregor's first ground of attack upon the judgment was to submit that the finding that the net in hand figure to be adopted for the value of a nanny/carer was £100 per week was too low and contrary to the evidence. Evidence had been given by four persons experienced in the provision and hiring of nannies/housekeepers. There was, needless to say, a range of differences between the various witnesses. Mr. McGregor urged upon the court that the witnesses called for the plaintiffs, who on the whole gave higher figures ranging from £120 per week to £200 or more in the case of specialised services, were of greater experience and more reliable than those called on behalf of the defendants whose experience was comparatively limited in the field. I hope that it will not be considered discourteous if I deal with this particular submission quite shortly. Having reviewed the passages in the transcript of evidence to which we were. referred by Mr. McGregor, I have come to the firm conclusion that this was an area in which the judge was perfectly entitled to exercise his own discretion and judgment as to the reliability of the witnesses and select that evidence which he thought best served the purpose of assessing the value of the lost dependency. It must never be forgotten in this particular exercise that the multiplicand/multiplier approach based upon the cost of hiring alternative commercial services is at the best a very crude and approximate instrument. It borders upon complete artificiality and, in my judgment, is acceptable only on the basis that there is no better means of approaching this difficult and almost unquantifiable aspect of dependency. During argument the expression "plucking a figure out of the air" was used by either side upon a significant if not sinister number of occasions. In this context, I can see no possible ground upon which this court could interfere with the net in hand figure upon which the judge founded the rest of his assessment.
Mr. McGregor's second point was that the judge was wrong not to make a quantified increase in "the net in hand" figure to take into account a number of elements which he included under the general rubric of "cover". These are to be found in schedules which had been provided by the plaintiffs to the defendants before the trial and which were in the court bundle of documents. The terms of employment of a nanny/carer involved allowed for her to be absent on three evenings per week, one and a half days per week, one long weekend per month and four weeks paid holiday per year. Although all these items were included in the schedules Mr. McGregor did not pursue all of them. In addition, there were further elements including accommodation allowance that is heating, lighting and food to be shared with the household costs which was discounted to a figure of 10% of the assessed figure, and, in addition, uniform, agency fees and so on which Mr. McGregor did not attempt to include.
Mr. McGregor's excellent tables and schedules as mathematical propositions cannot be faulted. If the exercise were the precise assessment of compensation for an established pecuniary loss then their relevance would be undisputed. Where, with respect to Mr. McGregor, his criticism of the judgment falls short is because in the assessment of damages for a loss of this kind one is dealing with "a jury question" as -was emphasised in this court: see the judgment of Croom-Johnson L.J. in Spittle v. Bunney [1988] 1 WLR 847 at page 857H:-
"What then should have been the direction given to the jury trying the facts of the present case? They would be told that they should award such sum as they might think was proportioned to the injury to Kate resulting from her mother's death. They should be told that the services which had been given and which would have been given to Kate by her mother had a monetary value and they could proceed upon the basis that by the time Kate reached the age of 22 there would be no further deprivation by the loss of her mother's services, and they could take whatever number of years, short of 18 1/2, which they thought represented the value at the time of death of the lost services up to that age. They should be told that the fact that nobody was being paid or would be paid as a substitute mother made no difference, and that Mrs. Spittle's services, given free, were not to be set against any sum which they assessed. As to how they should value Kate's mother's services, there were not to use as a measure the evidence of the cost of fostering services. They should be told that they were to use what other evidence (the cost of a nanny) as they thought best, and that if they thought that did not properly reflect the true value of the services of Kate's mother they should stand back and use their common sense.
What they ought also to be reminded of is that as children get older they may also get more independent of their parents and less in need of being looked after. In the early years the services rendered by a mother to her small child may be valued by the cost of a hired nanny. The requirements are to some degree comparable. As the child grows older, and reaches school age, the valuation by commercial standards becomes less and less appropriate, and to use them is again not comparing like with like. Once the child has begun school, at least by the age of six, the extent of the services decreases in amount. She needs, for a time, to be taken to and from school. Later on, she may go there by herself. Not only is the yardstick of a nanny's wage less appropriate, but the services rendered by the mother change in nature".
In coming to his assessment of the multiplicand the judge modelled himself very closely upon the judgment in Spittle v. Bunney; and I for my part cannot see any ground upon which he could be challenged in approaching the problem on this basis. This is certainly the case in his deciding the appropriate cost of providing the services of a nanny/carer:-
"... A further reason for excluding these items is this. What one is engaged in here is the valuation of the lost services and not what it would cost to provide those services. I have already made this point.
In the result, on the basis of the 'nanny' formula the net in hand figure for the nanny/housekeeper for 52 weeks of the year is, in my judgment, the appropriate figure to be used in valuing the lost services. All other items of notional expenditure are irrelevant and are to be left out of account".
Mr. McGregor submitted that the judge was not entitled to take this course and that he should have taken a higher figure than £100 per week as the basis for arriving at the multiplicand. I find that I cannot agree with this submission. Bearing in mind it was at all times a question for assessment by a jury in the context of a general direction as to how to approach the problem, I do not believe that a jury could be faulted if, having heard all the evidence in the present case, they decided not to adjust the figure of £100 per week net in hand upwards because either of the four weeks annual paid holiday or occasional periods of sickness but were content to absorb them in the general figure for loss of dependency based upon the figure they had selected as the datum point.
I now turn to Mr. McGregor's third point which related to the question of the 50% discount on the datum figure which the judge decided to apply in view of the diminished need for support and services in the period between six years and eleven and a half years of age. In Spittle v. Bunney Croom-Johnson L.J. dealt with this matter in the second part of the extract of the judgment which I have already cited. I have no doubt that the proposition that as a child grows older and reaches school age the valuation by commercial standards in relation to the cost of providing nanny/housekeeper services becomes less and less appropriate. But it occurred to me during argument that it could well be submitted that as the value of this type of support diminished the value of another aspect of the support might increase. By this I mean that although perhaps the time spent in supplying the services by the mother might well grow less as the child became older, the value of those services in the form of moral guidance, discipline and example might very well be assessed at a considerably higher figure. In following on this aspect of the case the approach made by the judge he which took from the judgment in Spittle v. Bunney I would not like to be taken as agreeing without some kind of reservation the proposition that time spent is necessarily directly proportional to the value of the services rendered or in the context of fatal accidents claim the value of the dependency lost. However, this matter was not argued before the judge and no evidence was laid before him on which an approach along these lines would have been justified. With these qualifications I have come to the clear conclusion that Mr. McGregor's attack upon the assessment made by the judge of the value of the services lost based upon the datum of £100 per week net in hand without further fine tuning for the second period between the ages of five and eleven and a half to be discounted by 50% cannot, as a matter of principle, be disturbed in this court. I deliberately reached my conclusion on this basis rather than a direct approbation of the exercise carried out by the judge about which I harbour some doubts. These doubts, however, do not afford a proper ground for interference in this court.
The multiplier
This is the area in which the issues raised on the appeal, in my judgment, are of importance. The judge considered that he was bound by authority to take as the overall period for dependency 18 years from the death-technically a few weeks less, but for the purposes of argument this adjustment can be ignored. Applying normal discounts he reached a multiplier of 12 years. Mr. McGregor submitted that if this is the correct exercise he should have taken 13 years and there may be some justification for this submission. On this basis, again taking the date of death as the datum point, at the date of trial there was only 0.5 years to run before the full period of the multiplier expired if this figure is to be assessed not only with the date of death as datum point; but with the factors from which the multiplier is to be calculated assumed to be those which would be known to the court were the trial to have taken place on that date.
Considering himself bound by the authority of the House of Lords in Crookson v. Knowles [1979] AC 556, the judge took a multiplier of 1/2 in assessing the post-trial damages. Mr. Playford, in a strong and attractive argument, submitted that this was the only course open to the judge and that any other method of approach would throw this particular area of law, over which a satisfactory condition of finality had at last been achieved, back into the melting pot with the consequent hardship and undesirable results. On the other hand, Mr. McGregor submitted that ignoring for the moment the lifespan of the deceased for the purposes of computing the multiplier, it was totally bizarre and unrealistic to assess damages on the basis that the probability of Richard's surviving was merely one of six months when he was at the age of 11 1/2. Mr. Playford submitted that the distortion arose from the immense delay in bringing the action and referred to the course taken by the Court of Appeal in Spittle v. Bunney where a minor, aged three at the time of the accident in which his mother was killed, was given a dependency of 18 years (it was assumed that she would proceed to further education); a multiplier of 11 was adopted and as 7 1/2 years had elapsed by the time of trial the effective multiplier for the assessments of future damages was taken at 3 1/2 years. Mr. Playford submitted that 3 1/2 years appeared acceptable whereas 0.5 of a year unacceptable merely because of the distortion in the excessive delay in the latter case and no point of difference in principle could be detected between the two cases.
With respect to counsel, some confusion and difficulty may have arisen over the encapsulation of the competing arguments into two phrases: "assessment of multiplier from date of death" and "assessment of multiplier from date of trial". The use of the multiplier/multiplicand approach for the capitalization of damages "in futuro" to be compensated by a once-for-all lump sum provision is an adequate and well-known instrument; but, like all instruments, it must be used in an appropriate manner.
In every assessment of damages "in futuro" to be compensated by an immediate payment there are at least five essential elements:-
1. the likelihood of the provider of the support continuing to exist;
2. the likelihood of the dependent being alive to benefit from that support;
3. the possibility of the providing capacity of the provider being affected by the changes and chances of life either in a positive or in a negative manner;
4. the possibility of the needs of the dependent being altered by the changes and chances of life, again in a positive or negative way;
5. an actuarial discount to compensate (a) for the immediate receipt of compensatory damages in advance of the date when the loss would in fact have been incurred, and (b) the requirement that the capital should be exhausted at the end of the period of dependency.
1 and 2 are actuarial figures depending upon the age, health and circumstances of the person involved. 3 and 4 must be speculative and are to be taken into account by way of adjusting the life expectancy figures in 1 and 2. Normally this would be by way of reduction; but the present case is an obvious exception. This arises from the doubt whether Richard's dependency would end at the age of 18; or whether he would proceed to further education. 5 is again an "actuarial" assessment depending on current and anticipated interest rates, anticipated inflation rates and the period of years over which the receipt of the compensation anticipates the occurrence of the loss.
In my judgment, as a general rule in order to arrive at the multiplier it is necessary to take the following steps:
(a) consider the combined effect of 1 and 3 in order to arrive at the number of years during which the provision of the support is likely to be available if needed by the dependent;
(b) consider the combined effects of 2 and 4 in order to arrive at the number of years during which the dependent is likely to need the support;
(c) apply 5 to the lesser of (a) and (b) above, with an added but usually minor discount to take account of an outside chance that choice between (a) and (b) might in the event prove to be wrong.
In normal cases, i.e. the death of a wage-earning husband and father (a) will be the appropriate period of years to which the discount in 5 will be applied. In other cases, such as the present one where the dependency will end before the discounted life expectancy of the mother; (b) will be the period of years to which the discount in 5 will be applied. The application of the formula will depend on the circumstances in each case. The issue at the heart of this part of the appeal is not what is the date from which the multiplier should operate; but at what date should the known facts be taken when calculating elements 1 to 4 above and when choosing the discount in 5.
I have come to the firm conclusion that the judge was in error in considering that he was bound by Cookson v. Knowles [1979] AC 556 and Graham v. Dodds [1983] 1 W.L.R. 808 to take a multiplier of 12 as the conventional figure arrived at after carrying out the exercise in (c) above. In coming to this conclusion, I do so with considerable deference, since having been privileged to read the judgment of my brother, Ralph Gibson L.J., I know that I have the misfortune to find myself in disagreement with him in this respect.
It is perhaps convenient to start with the critical part of the speech of Lord Bridge of Harwich in Graham v. Dodds. This was an appeal from the Court of Appeal in Northern Ireland. That court was entertaining an appeal from an award of damages under the Fatal Accidents (Northern Ireland) Order 1977 made by Lord Lowry C.J., sitting with a jury. The majority in the Court of Appeal held that as in their speeches in Cookson v. Knowles Lord Diplock and Lord Fraser had expressed opposite and irreconcilable opinions as to the date from which the multiplier was to be assessed, it was open to them to hold that it was proper to award special damages in respect of the period between the death and the date of trial and then to fix a multiplier as at the date of trial on the assumption of the death of the deceased at that date (i.e. date of trial). At page 813G Lord Bridge said:-
"The only issue arising in this appeal which is strictly one of law is whether, in assessing damages for loss of dependency arising from a fatal accident, the multiplier or number of years purchase should be calculated from the date of death or from the date of trial. Counsel for the defendant has contended for the former. Counsel for the plaintiff has throughout contended for the latter and this view prevailed with the learned Lord Chief Justice and the majority of the Court of Appeal. The judge, in a short note appended to the transcript in his report of the trial, said:
'I took the view that there is no legal principle that the number of years of purchase (in this case I suggest 11 to 14) should be automatically reduced having regard to the number of years special damage since the death of the deceased and that the contrast sometimes made with personal injury cases is not a sound one".
On this issue the majority of the Court of Appeal examined the speeches in your Lordships' house in Cookson v Knowles [1979] AC 556 and reached the conclusion that Lord Diplock and Lord Fraser of Tullybelton had expressed opposite and irreconcilable opinions. Gibson L.J. illustrated his understanding of the supposedly conflicting doctrines by indicating how they would apply in assessing the dependency of the widow of a young man killed at the age of 21, in the following terms:
'Should the action not come to hearing until five years had elapsed Lord Fraser of Tullybelton would assess at death the multiplier, which I take at say 18, and he would then allow five years' special damage and 13 years as the multiplier of future loss. Lord Diplock, on the other hand, would also give five years' special damage and then fix the multiplier on the assumption of the death of the deceased at the age of 26 years, which Mr. Hill conceded would not be appreciably less than the original figure of 18'.
On the basis of such a conflict, Gibson and O'Donnell L.JJ. held themselves free to choose which of the two doctrines they preferred and both came down in favour of the view they attributed to Lord Diplock.
It is to be observed that in Cookson v. Knowles Viscount Dilhorne, Lord Salmon and Lord Scarman all expressed their agreement with the speeches of both Lord Diplock and Lord Fraser of Tullybelton. Gibson L.J. recognised this and described it as a 'confusing feature' of the case. It would indeed be astonishing that such a radical conflict should have escaped the attention of the three concurring members of your Lordships' House, but still more astonishing that neither Lord Diplock nor Lord Fraser of Tullybelton should have said a word to indicate any awareness that they were disagreeing with each other on a matter of fundamental principle.
My Lords, I have to say, with respect, that the majority of the Court of Appeal based their decision in this case on a misunderstanding of the decision in Cookson v. Knowles [1979] AC 556. In that case the widow's claim under the Fatal Accidents Acts arose from the death of her husband at the age of 49. The trial judge took 11 years' purchase from the date of death as the appropriate multiplier. But he applied it to the estimated annual dependency at the date of trial, 2 1/2 years after the date of death, to arrive at a single capital sum of damages on which he awarded interest at 9 per cent from the date of death to the date of trial. The Court of Appeal reduced the capital award by estimating the dependency in two parts: (a) from the date of death to the date of trial, (b) from the date of trial onwards and allowed interest on the first part of the award only at a reduced rate. For the purpose of the capital assessment, the trial judge's figure of 11 years purchase from the date of death had to be divided; 2 1/2 was applied in calculating the pre-trial loss, 8 1/2 in calculating the future loss. But the propriety of calculating the overall multiplier from the date of death was not questioned. In the unanimous decision of this House affirming the Court of Appeal, Lord Fraser of Tullybelton dealt with the last point expressly in the following passage, at pp. 575-576:
'In the present case the deceased was aged 49 at the date of his death and the trial judge and the Court of Appeal used a multiplier of 11. That figure was not seriously criticised by counsel as having been inappropriate as at the date of death, although I think it is probably generous to the appellant. From that figure of 11, the Court of Appeal deducted 2 1/2 in respect of the 2 1/2 years from the date of death to the date of trial, and they used the resulting figure of 8 1/2 as the multiplier for the damages after the date of trial. In so doing they departed from the method that would have been appropriate in a personal injury case and counsel for the appellant criticised the departure as being unfair to the appellant. The argument was that if the deceased man had had a twin brother who had been injured at the same time as the deceased man was killed, and whose claim for damages for personal injury had come to trial on the same day as the dependant's claim under the Fatal Accidents Acts* the appropriate multiplier for his loss after the date of trial would have been higher than 8 1/2. On the assumption, which is probably correct, that that would have been so, it does not in my opinion follow that the multiplier of 8 1/2 is too low in the present claim under the Fatal Accidents Acts where different considerations apply. In a personal injury case, if the injured person has survived until the date of trial, that is a known fact and the multiplier appropriate to the length of his future working life has to be ascertained as at the date of trial. But in a fatal accident case the multiplier must be selected once and for all as at the date of death, because everything that might have happened to the deceased after that date remains uncertain. Accordingly having taken a multiplier of 11 as at the date of death and having used 2 1/2 in respect of the period up to the trial, it is in my opinion correct to take 8 1/2 for the period after the date of trial. That is what the Court of Appeal did in this case/
If I may say so, respectfully, I find the reasoning in this passage as cogent as it is clear. But, what is perhaps more important, I can find nothing in the speech of Lord Diplock which conflicts in any way with Lord Fraser of Tullybelton's reasoning or with his conclusion. The two passages cited by Gibson L.J. from Lord Diplock's speech dealing with the assessment of the dependants' future loss from date of trial are not directed to the question of the appropriate multiplier and certainly lend no support to the doctrine that this can be calculated on the assumption that the deceased, if he had survived the accident, would certainly have remained alive and well and in the same employment up to the date of trial. Such a doctrine, ignoring the uncertainty which, as Lord Fraser of Tullybelton pointed out, affects everything that might have happened to the deceased after the date of his death, is clearly contrary to principle and would lead to the highly undesirable anomaly that in fatal accident cases the longer the trial of the dependants' claims could be delayed the more they would eventually recover.
Accordingly, in so far as the learned Lord Chief Justice based his directions to the jury with respect to the multiplier to be applied in assessing future loss on the considerations appropriate in awarding damages for future loss of earnings to a surviving plaintiff in a personal injury case aged 4 5 (the age the plaintiff's husband would have attained at the date of trial if he had survived) and treated the pre-trial loss as 'special damage,' and in so far as the majority of the Court of Appeal approved the directions given on that basis, they erred in law".
I have ventured to set out the speech of Lord Bridge at length because it gives a clear indication of the ground upon which the noble and learned Lord held that there was no dissent in Cookson v. Knowles and in view of the unhappy differences in this court as to the effect of these two authorities.
It is clear to me that Lord Bridge was considering the years of dependency emanating from (a) and (c) above, and ignoring (b). This must have been appropriate in the context of the facts in Cookson v. Knowles. It explains his reliance on the sentence "But in a fatal accident case the multiplier must be selected once and for all as at the date of death because everything that might have happened to the deceased after that date remains uncertain". (My emphasis). This analysis of the speech of Lord Bridge is supported by the passage occurring shortly after his quotation from the speech of Lord Fraser referring to passages from the speech of Lord Diplock cited by Gibson L.J. One of these is repeated in the extract already included in this judgment. It remains only to remark that the reference by Lord Bridge to the undesirability of encouraging delay is clearly justifiable; but does not take into account the power in the court to withhold interest for an appropriate part of the period of time elapsing between the death and the date of trial.
Again in the circumstances of Cookson v. Knowles and Graham v. Dodds it was not necessary to consider the effect upon (b) of the facts relating to the consideration of (2) and (4) above established by the proven survival of the dependent when the critical assessment depends upon (b) as discounted by (c). Lord Bridge makes no reference to those parts of Lord Diplock's speech in which he considered the aspects of interest and advancement of compensation in relation to the date of trial and date of death - nor, with respect to the judgments which follow, should any weight be attached to these passages in the present context. I can see no justification for denying the court the power to take into account by way of adjusting the multiplier to be assessed "as at the date of death" in light of facts established at the trial. This exercise is permissible when assessing the multiplicand and in the normal case in effect goes by default because the critical period to be considered in computing the multiplier is (a) rather than (b). Frequently also when (b) is larger that (a) the period of years over which the receipt of compensation is advanced is substantial and the element of this in the discount in (c) will also be substantial. When, however (b) represents a very short period, this period will not be much discounted from the remaining years to the age of 18, i.e. 6 1/2 plus an increment for the possibility of Richard's going to further education. In addition the further discount arising from (4) will also be small.
If these factors are put into the equation when assessing (c) as the date of death they must result in a substantial increase in the multiplier assessed "as at the date of death". This is not the same exercise as that which the Court of Appeal carried out in calculating the multiplier as at the date of trial in Graham v. Dodds, since it still takes into account the uncertainties surrounding the hypothetical survival of the provider of the support. The failure to do this was the main ground for the rejection of the Court of Appeal's approach in Graham v. Dodds by Lord Bridge. It is for this reason that I have the misfortune not to agree with Gibson L.J. that Graham v. Dodds prevents this court from adjusting the multiplier to take into account the facts arising from the delay before the trial took place. For the same reasons I cannot agree that this court cannot disturb the judge's finding of the multiplier at 12.
It was common ground that either 12 or 13 would have been the appropriate multiplier to cover 18 years dependency in "normal standard circumstances". Not to make a meaningful adjustment because during 11 1/2 of the 18 years of dependency upon which the discounts in (b) would normally be applied but which no longer contain uncertainties would be illogical. It did in this case lead to the bizarre position where the dependency of a normal health individual was discounted to six months.
In Cookson v. Knowles the resolution of the use of the multiplier in circumstances such as the present case was never directly in issue. Lord Fraser discusses the propriety of using 8 1/2 years from the date of the trial as being the residue of the multiplier of 11 based on the date of death in the context of the comment "that in a fatal accident case the multiplier must be selected once and for all as at the date of death because everything that might have happened to the deceased after that date remains uncertain". Lord Fraser must here have been considering a case where the length of the multiplier depended, if not solely, almost exclusively upon the prospects of the provider of the dependency continuing to be able to provide it and not upon the prospects of the beneficiary continuing to receive that support. In the usual case of the death of a wage-earning husband in a claim by his widow and children this would be the normal approach. I do not think that Lord Fraser had in mind a case where the main determinative factor was the period of years during which the beneficiary would be expected to continue to receive support from a provider, whose life expectancy would carry his ability to continue affording that support long after the expiry of the period during which the receipt of the support would continue to be required.
For these reasons I have come to the conclusion that the judge fixed a multiplier which was demonstrably too low. However, I cannot accept Mr. McGregor's first submission that the multiplier should be calculated from the date of trial. In my judgment, in a case such as the present, the correct approach must be to calculate the multiplier from the date of death but in so doing account must be taken of the removal of many of the "uncertainties" surrounding the provision and receipt of the dependency during the period involved. Accordingly, the discount from the 18 year period to take into account those uncertainties will itself be reduced. Other uncertainties, themselves independent of the continued existence of the beneficiary, e.g. the continued existence of the provider, will remain factors upon which the multiplier will depend and in respect of which the figure for the multiplier must be discounted.
To elaborate a little on the proposition made at the end of the last paragraph, if the multiplier was calculated from the date of trial this would ignore other factors which should reduce the multiplier. These include the changes and chances affecting the hypothetical continuation of the deceased's provision of support. This is not merely a question of life expectancy. There are a whole host of other events which might well have taken place. The mother might have met with an incapacitating or indeed fatal accident, she might have been the victim of some incapacitating illness or, unattractive as the proposition may be in the circumstances, become one of the 33 l/3rd per cent of married persons whose marriage breaks up in circumstances in which her availability to provide the support would be withdrawn. These changes and chances affecting the supporting life are still present and must still be taken into account in considering to what degree the multiplier, which otherwise would have been 12, should be increased by the court using the datum point of the death but taking into account the fact now well-known to the court that the dependent has survived 11 1/2 years of the period.
I have already mentioned the question of delay. Mr. Playford submitted that to take into account the facts as they existed at the date of trial would in a case like this put a premium on delay. There is force in this argument; but then again, delay results in the tortfeasor having the use of the money represented by the damages, whilst the beneficiary is correspondingly deprived unless he is compensated by an award of interest on the damages recovered. The sanction to deter delay is in the discretion in the court to withhold interest under the provisions of section 35A of the Supreme Court Act 1981 (as amended). Having concluded that the judge erred in principle in his assessment of the multiplier it is, in my judgment, open to this court to use its own discretion and to substitute a multiplier of its own taking into account the established facts which were available at the trial. This is an exercise of pure discretion and does not admit of any further argument.
Mr. McGregor's final attack on the judge's assessment of the multiplier related to a passage from his judgment at page 14 of the transcript:
"The onus of establishing that Richard is likely, on the balance of probabilities to proceed to tertiary education is on the boy himself, as plaintiff. In my judgment he has failed to discharge that onus. On the evidence the position is evenly balanced: he may or may not go on to higher education. But even if he leaves school at 16 and enters employment, his dependency on his mother, if still alive, would not be likely to end at that time. It is likely that he would still be living at home for a year or two or may be more".
It was on this passage and on the passage ; already cited in this judgment that the judge reached the figure of 18 as being the age at which the dependency would cease. Mr. McGregor's point is a simple one and is based upon a passage from the speech of Lord Reid in Davies v. Taylor [1974] A.C. 207, at page 212:-
"But in the present case the trial judge applied a different test. He held that there was an onus on the appellant to prove that on a balance of probabilities she had an expectation of continued dependency - that it was more probable than not that there would have been a reconciliation. In fairness to him I must note that he understood that this had been agreed by counsel. But we were informed that that was not so and counsel for the respondent very properly did not seek to found on this. I think that the learned judge was misled.
When the question is whether a certain thing is or is not true - whether a certain event did or did not happen - then the court must decide one way or the other. There is no question of chance or probability. Either it did or it did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent.: sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent, and a probability of 49 per cent.
'Injury' in the Fatal Accidents Act does not and could not possibly mean loss of a certainty. It must and can only mean loss of a chance. The chance may be a probability of over 99 per cent. But it is still only a chance. So I can see no merit in adopting here the test used for proving whether a fact did or did not happen. There it must be all or nothing.
If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent, and a 40 per cent, probability. The 40 per cent, case will get nothing but what about the 60 per cent. case. Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent, case fails altogether but the 60 per cent, case gets 100 per cent. But it would be almost absurd to say that the 40 per cent, case gets nothing while the 60 per cent, case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case".
Mr. McGregor submitted that His Honour Judge Hayman fell into exactly the same trap as the judge who was the subject matter of the criticism of Lord Reid in the passage from the speech in Davies v. Taylor which I have just recited. I can see no fallacy in this submission. If the judge on the evidence found that the matters were "evenly balanced" as to whether or not Richard would have continued to further education he was not entitled to discount that possibility altogether. I am not satisfied that Mr. McGregor was entitled to go to the further extent which he did in his submission and say that the judge was obliged in law to apply a discount of 50% and, therefore, add 1 1/2 years to the 18 years making it 19 1/2. I am, however, satisfied that there should have been some small addition to the total period of dependency which should in turn affect the multiplier by a minor upward adjustment. In the event I would give effect to this and to the other factors to which I have referred in concluding that the multiplier of 12 was too low, I would award an uplift in the multiplier to take into account all adjustments to 15.
Mr. McGregor further attacked the judge's award on the basis that it was not comparable with other similar awards. He submitted that the judge was using the figure for damages at which Croom-Johnson L.J. arrived in Spittle v.- Bunney of £25,000. This figure was substituted for the figure of £47,500 which had been awarded by the trial judge. The £25,000 was apportioned as to £22,000 damages down to trial arid £3,000 for the post-trial period. At page 858H Croom-Johnson L.J. said:
"In substituting these figures for the figures assessed by the trial judge, I have taken into account the special qualitative factor dealt with by Watkins j. in Regan v. Williamson and approved, at least by implication, in this court in Abrahams v. Cook (unreported 18th November 1987, Court of Appeal (Civil Division) Transcript No. 1157/87".
Mr. McGregor referred to the passage of the judgment of Croom-Johnson L.J. in Spittle v. Bunney at page 856 as set out below:-
"The defendant also cited to this court awards in other cases, updated where suitable. They were unquestionably lower than the award in this case, although the circumstances were different in each case. In Hay v. Hughes [1975] QB 790 the wages of the notional resident housekeeper (who did not exist) were £15 a week and with other expenses were assessed at £l,000 a year. That was in 1970. Updated for inflation that would now be £28,530 on a multiplier of 9. Regan v. Williamson [1976] 1 W.L.R. 305 was not a case of a notional housekeeper. One had been employed to look after the widower and four children, of whom the youngest was aged 3 1/4. Watkins J. deducted the cost of the dead mother's keep and expenses, and added to the basic sum a further figure because there was a possibility that the mother might have gone out to work again and because she was otherwise available all day, whereas the housekeeper was not. The figure awarded, if it is updated, would be £31,606".
Mr. McGregor had done some research on the adjustment of the figures originally awarded in Regan v. Williamson in 1976 and Hay v. Hughes in 1975 if the current adjusting factor taken from the inflation tables in Kemp & Kemp had been used. He submitted that as a result of an error in the submissions of counsel, Croom-Johnson L.J. had arrived at figures that were too low as comparable figures. The adjusted figures at the date of the trial in Spittle v. Bunney would have been in the case of Regan v. Williamson £41,198 and in Hay v. Hughes £37,350 which, he submitted, were more in line with Turner j.'s assessment at first instance of £47,500 in Spittle v. Bunney. The figures, Mr. McGregor submitted, when adjusted to the date of trial in the present case would have been 46,240 and £41,850 respectively.
This ingenious approach to the judgment in Spittle v. Bunney does not, in my judgment, assist Mr. McGregor's argument. It is by no means clear that Croom-Johnson L.J. was paying any more than passing attention to the submissions of counsel when referring to comparable cases. There is no specific reference to the question of comparable cases in the part of the judgment where the learned Lord Justice reached his conclusion at page 858. He considered it in the light of what a jury would probably award if they had taken into account all the matters in evidence arid came to the conclusion that they would have reached, a decision that the total damages could not exceed £25,000 for the whole of the multiplier period. I am, therefore, unable to accede to this part of Mr. McGregor's argument. For my part, I doubt whether in these kind of cases, comparison with other awards can ever be more than of limited value. Each case must be considered on its own peculiar facts.
Interest
I now turn to the final matter raised on this appeal, namely the decision by the learned judge to follow the course taken by this court in Spittle v. Bunney and to exercise discretion not to award the full amount of interest on the damages recovered up to the date of trial. The judgment on this aspect of the case is to be found in the supplementary transcript entitled "proceedings" at page 18D:
"My judgment is the discretion as regards the period of which interest is left to run and it seems to me totally unjustified that a claim of this nature should take eleven and a half years to come on. The fact that the child is protected by limitation, it does not follow he is therefore protected as regards to interest. Therefore, in my judgment, there should be some diminution in the interest to be awarded. I think the proper deduction is a deduction of 4 years of interest on the basis given the difficulties and all other factors in this case. I think it is more than reasonable to assume that this claim could have come on for trial seven and a half years. The interest will be whatever the total amount is left".
As I read the judgment, regardless of the argument that ensued thereafter which is recorded in the transcript, the judge ruled that interest should be given for the damages awarded as if the trial had taken place after 7 1/2 years as opposed to 11 1/2 years from the date of death. This should be the basis upon which the figure for interest should be computed. Mr. McGregor, whilst conceding that it was essentially a matter of discretion for the judge, submitted two points by which the judge should have been influenced not to make a deduction, namely that a reduction in the interest penalised the infant but not the adults or legal advisers and, therefore, should not be made in a case of this kind. I cannot, I regret, accede to this argument. I cannot put from my mind the fact that there is an outstanding action in negligence against at least one firm of solicitors; but even if this were not so the accommodation granted to infants to avoid the provisions of the Limitation Acts is, as the judge says at one point of the transcript, related to their right to recover damages but not necessarily a relief against the penalty which arises because once the claim is on foot the matter is not proceeded with diligently. The other point that Mr. McGregor made was that in no previous case where the court has taken action in this way has the reduction been more than two years. Mr. McGregor said this is twice any previous deduction. I think it fair to say that Mr. McGregor did not press this argument with much enthusiasm. He had to concede that the delay in this case wholly exceptional and in its own way unprecedented. I accept Mr. Playford's submission, that an unprecedented and wholly exceptional delay justifies an unprecedented and wholly exceptional exercise of discretion. I would, therefore, not interfere with the judge's order on this point. I would, therefore, to the limited extent indicated in this appeal allow the appeal and substitute a new figure for post-trial damages to be computed in accordance with a multiplier of 15 from which 11 1/2 must be deducted being the period up to the date of trial, i.e. 3 1/2 X £2,600 = £9,100 should be substituted for £l,300 awarded by the judge.
LORD JUSTICE RALPH GIBSON: The main issue in this case is whether the multiplier applied by the learned judge was correct. There is, in addition, an issue as to the judge's assessment of the plaintiff's chances of proceeding to some education or training after the age of 18. I would dismiss the appeal on all the other grounds put forward on behalf of the appellants for the reasons stated in the judgments of Purchas and Farquharson L.JJ.
The submissions for the defendants by Mr. Playford, in support of the judge's decision on the multiplier, have been, in brief summary as follows. It is established by the authority of Cookson v. Knowles [1979] AC 556 that in a fatal accident case the multiplier must be selected once and for all from the date of death: see per Lord Fraser 576C-E. The principle has provided, it was said, certainty and clear guidance in this difficult area of law for over 10 years; and, having been applied by this court in Spittle v. Bunney [1988] 1 WLR 847, should not be disturbed. The apparent illogicality of awarding only one half year's purchase of the multiplicand at the date of trial, in the case of a boy then aged eleven and a half whose maximum period of dependency, although diminishing in value, would have continued for at least a further six and a half years from that date, was said to reflect the distortion caused by delay: see Spittle v. Bunney at page 855E. To accede to the submission of Mr. McGregor, and to calculate the value of the loss of services to the date of trial as special damages, and then to add a lump sum calculated at the date of trial by reference to a multiplier selected as at that date, would be to ignore authority and to cause grave confusion.
Mr. McGregor submitted, in effect, that to select the multiplier in this case as at the date of trial - and the multiplier should be 5 years - was not to depart from established principle but to apply that principle correctly as contrasted with the application of a supposed rule which itself departs from principle.
The effect of accepting Mr. McGregor's submissions upon the multiplier, while upholding the judge's decision upon all other aspects of the case, would, as I understand it, be as follows:
| (i) Loss from birth to 6th birthday |
£17,940 |
| (ii) Loss from 6th birthday, October 1983 to trial in May 1989 |
£12,350 |
| (iii) Part of £3,000 awarded for uplift of figure based on "nanny's services" to allow for loss of special services of a mother |
£2,785 |
| |
£33,075 |
| (iv) Add 5 years future loss at £2,600: |
£13,000 |
| Total |
£46,075 |
That total is to be compared with the £35,000 awarded by the learned judge.
The main force of Mr. McGregor's submission, as it seems to me, lies in the fact that the appellant by May 1989 had, under rules of law which are not in dispute, lost his mother's services for eleven and a half years. The award to the date of trial covered only that accrued loss with nothing by way of pre-payment. Any interest upon that award, such as the court might in discretion direct, would compensate only for the delayed receipt of the compensation for the lost services. For the remainder of the period of lost dependency, namely six and a half years, the damages awarded cover one half year so that there is apparently no compensation for the loss over six years. That would be justifiable, of course, if the reduction in compensation was no more than that fairly necessary to reflect uncertainty as to the continued provision of the service by the mother, or by uncertainty as to the continued ability of the child to receive the service. Mr. McGregor submits that, on the evidence, neither sort of justification can be demonstrated. If that part of the submission can be made good then there would have to be clear authority, as I think, binding upon this court, before we could properly reject Mr. McGregor's submission at least to the extent of holding that the multiplier applied by the judge must be wrong. An award of £46,000 to an eleven and a half year old boy, who may in fact have suffered no interference in his physical well-being or in his way of life or upbringing as a result of the death of his mother, may appear to be out of proportion to the loss actually suffered by him but, apart from this question of the multiplier, the judge's award of £35,000 is acknowledged by the respondents to be in accordance with established principles. If those principles justify the award calculated in the way followed by the judge, then it should be applied so as to ensure that the child receives on the facts as found by the judge full compensation in accordance with those principles.
It is necessary to consider the submissions made to this court by reference to the basic principles of law applicable to the assessment of fatal accident damages. If the appellant can show that the learned judge is apparently wrong according to those principles it would then be necessary to see whether the judge's decision must be upheld by reason of binding authority.
For the reasons explained by Lord Diplock in Cookson v. Knowles "the assessment of damages in fatal accident cases has become an artificial and conjectural exercise": page 568D-E. It is in part artificial where a dependant mistreated as having wholly lost a form of support or service which has in fact been replaced wholly or in part. it is conjectural because the assessor must estimate the chances of a state of affairs continuing to exist such as the provision of the support or service, if the death had not occurred, or of a state of affairs ceasing to exist such as by the death of the recipient or termination of the receipt of services as when a child becomes independent. Notwithstanding such artificiality and the conjectural nature of the exercise, the purpose is to determine fairly within the statutory rules the amount of the damages "proportioned to the injury resulting from the death to the dependants respectively": (section 2 of the Fatal Accidents Act 1846, now section 3 of the Fatal Accidents Act 1976), and, within the principles established by the decisions of the courts, to put the child as near as may be fairly accomplished into the position in which it is conjectured that he would have been but for the death of his mother.
Where the claim is for the loss of the services of a mother to her child the claim is limited to the loss of those services capable of being valued in terms of money which the mother would have rendered to the child as his mother if she had survived. That proposition was treated as correct in Hay v. Hughes [1975] QB 790 and has not been disputed in this action. The compensation does not extend to cover the loss of the benefits arid happiness to be derived from the companionship of his mother, or from her love, or for the loss of the joys of a happy home so far as he has lost them by his mother's death: see Hay v. Hughes [1975] QB 790 and 810. The fact that the child has enjoyed the care and companionship of his grandmother, which has to a large extent replaced the services which he would have received from his mother, may be regarded as irrelevant because the services of his grandmother did not "result from the death" of his mother. Further, despite the fact that nothing has been spent upon any services to replace those of the mother the wages payable to a "notional nanny" may be taken as the measure of the services which the child had lost: Spittle v. Bunney [1988] 1 W.L.R. at 853F.
The method for calculating the amount of pecuniary benefit which the child would in probability have received from his mother in the future, i.e. after her death, which has been evolved by the courts, requires the calculation to be made in two parts by reference to the annual or other periodic value of the benefit, i.e. the multiplicand. The first stage is for such part of the period between the death and the trial as during which but for the death the support or services would have been enjoyed by the claimant. The amount is the annual value multiplied by the number of years in that period. The value of the lost support or services is to be calculated by reference to the facts proved at the date of trial. The second stage is damages for loss in the future from the trial for the period of time over which, but for the death, the financial support or services would have continued to enjoyed.
In the ordinary or typical fatal accident case, that is a widow claiming for loss of support from her dead husband, such as was Cookson v. Knowles (see page 566H), the estimated period of time by reference to which the multiplier is determined is that over which the deceased husband would have continued to provide the financial support to the claimant, and that in turn is usually assessed by reference to the number of years before the deceased would have reached retirement age, but subject, of course, to his working life expectancy. The period of time over which the claimant widow would have been alive and present to receive the benefit is ordinarily not of controlling relevance in the fixing of the multiplier because the life expectancy is longer than the period before the date on which the husband would have retired and, in the ordinary case, there is no reason to expect that the widow would have ceased to receive the support for any other reason. It is obvious, and it is not in dispute, that if the widow's life expectancy should be shorter, or if she has in fact died before trial, or if for any other reason she would in probability have ceased to receive the support at an earlier date than her husband's retirement, recovery is limited to the assessed or actual period of loss.
The multiplier itself, of course, is less than the number of years taken as the probable duration of the continued support because of the effect of two factors. Firstly, the multiplier is set to produce the present value of the series of future payments having regard to the fact that the claimant is regarded as having the lump sum award available for investment over the period of time and, secondly, that present value is discounted to allow for the fact that, for one reason or another, save as already allowed for in the calculation of the life expectancy, the person providing the maintenance or services might have ceased providing them and the person receiving the maintenance or services might not have enjoyed the benefit of them over the period of years during which it would have been capable of being provided: see per Lord Reid: Taylor v. O'Connor [1971] A.C. 115 at 128D. In the ordinary case both factors are operative in the selection of the multiplier but they are seldom, I think, separately discussed or analysed.
The first period of time relevant to the multiplier in this case is the life expectancy of the mother. It is common ground that it greatly exceeded the period of 18 years over which the child would, if he lived, have continued to receive the services of his mother. If the trial had taken place soon after the mother's death the appropriate multiplier, fixed in accordance with "the wealth of experience of judges and counsel which is an adequate guide" (see per Lord Reid, Taylor v. O'Connor at page 128E) would have been 13 according to the submissions of Mr. McGregor both before the judge and in this court. The judge fixed the multiplier at 12. It is not suggested that there is any special feature in the evidence, relevant either to the mother or to the child, which would suggest any risk of unusually early termination of the willingness or ability to provide the services by the mother before the child reached the age of 18 or of the ability by the child to receive them. There are, however, the ordinary vicissitudes of life which must be taken into account.
So far as concerns the discount required by reason of the immediate receipt of future payment, the multiplier in principle is less than "the number of years which represents the period for which it is estimated that the dependant would have continued to enjoy the benefit of the dependency since the capital sum will not be exhausted until the end of that period and in the meantime so much of as is not exhausted in each year will earn interest from which the dependency for that year could in part be met": per Lord Diplock: Cookson v. Knowles at page 568B.
In the ordinary fatal accident case which goes to trial there is at least the unavoidable delay required by the necessary procedures between the death and the trial. The claimant does not in fact have the lump sum award from the date of death upon which interest will be earned. Thus, in Hay v. Hughes [1975] 1 Q.B. 790 (decided before the practice of dividing Fatal Accident Act damages into two parts was established by Cookson v. Knowles) two boys aged four and a half and two and a half lost both parents in an accident on 10th January 1970. The mother was aged 25 and the father 29. At a trial on 24th October 1973, Reeve J. held that the services of the mother would have been enjoyed by the boys to age eighteen and a half: there was thus an average maximum period of lost dependency in that respect of 15 years. The value of the mother's services was fixed at El,000 per annum over the whole period and a multiplier of 9 applied to it. The plaintiff contended in the Court of Appeal for a multiplier of 12 but the court refused to disturb the judge's award. Nothing was said about the fact that, for the period of three and three-quarter years between death and trial, the claimants had not had the award available to earn interest and that the period of future loss from the date of trial to the expected end of the dependency, namely 10 years for one child and 12 years of the other, was to be compensated by five and a quarter years purchase of the loss. The fact that the multiplicand was the same over the whole period although the services would be diminishing was not expressly treated as justification for that aspect of the award.
In Cookson v. Knowles the death was on 14th December 1973; the multiplier taken was 11; and the multiplicand was £2,250 per annum. Judgment was given after trial on 27th May 1976 for a capital sum of £24,750. The trial judge, following the guide lines in Jefford v. Gee [1972] 2 Q.B. 130, awarded interest on the whole sum from the date of death to the date of trial at 9%: i.e. £5,412. The principle justifying the discount for immediate payment was thus more than justified because the claimant received interest over the period from death to trial not only upon the sums awarded in respect of that period but also upon the sums awarded in respect of the rest of the period of dependency. In the case of Cookson, however, the Court of Appeal varied the guide lines and held that, for the purpose of awarding interest on damages, the damages should be divided into two parts as described above.
The House of Lords upheld the new guide lines. The question, the reasoning upon which is relevant to this appeal, was whether in fatal accident and personal injury cases, where there are no unusual circumstances, interest should be awarded on the whole or part of the capital sum awarded by way of damages, and if the latter, on what part: page 576. The reasoning by which Lord Diplock reached the conclusion that interest should be awarded on the first part of the damages, i.e. from death to trial at half the short term interest rate current during that period, and that no interest should be awarded on the damages for future loss after the trial, may be summarised as follows. For the period between death and trial there are some hard facts available which reduce, although they cannot eliminate, reliance upon conjecture: e.g. the level of wages which the deceased would have been earning if still in work. Therefore the two part assessment was right. Lord Diplock's grounds for rejecting the Court of Appeal's reasoning on the relevance of inflation need not be repeated. The first part of the total damages, i.e. for the period from death to trial, is in respect of losses already sustained over the period, in that case of two and a half years. If the husband in that case had lived, the widow would have received payments in successive instalments over that period. Compensation for the additional loss sustained by the delay in payment of each instalment was provided in a rough and ready way by giving interest for the whole of that period but at half the short term investment rate. I would add the comment that, on that basis, the claimant has received for that period net compensation only: there is no holding in advance over that period any capital sum, intended to provide part of the lost dependency in future years, which would be meanwhile earning interest capable of providing part of that dependency.
As to the second part of the damages, the future loss (page 572B) Lord Diplock said that the starting point is the present value, not as at the date of death but at the date of the trial, of an annuity equal to the dependency starting then and continuing for the remainder of the period for which it is assumed the dependency would have enured to the benefit of the widow if the deceased had not been killed. To calculate what would have been the present value of that annuity at the date of death, its value at the date of trial would have to be discounted at current interest rates for the two and a half years which had elapsed between the death and trial. From the juristic standpoint it is that discounted amount and no more to which the widow would become entitled at the date of her husband's death. Interest on that discounted figure to the date of trial would bring it back up to the higher figure actually awarded. To give in addition interest on that higher figure would be not only to give interest twice but also to give interest on interest. I must add that I understand the reference to the "higher figure" to be to the sum calculated upon the basis of the earnings of the deceased at trial rather than those at the date of death.
The enquiry thus far shows, I think, that the multiplier of 12 years taken by the judge in this case does not appear to be fully in accordance with the principles for calculation of damages in a fatal accident case unless the fixing of the multiplier as at the date of death is a rule to be applied in every case, irrespective of the time which has elapsed between the death and the trial. The multiplier of 12 years is, as it seems to me, without question one which the judge could properly take as appropriate on the facts of this case for a maximum period of dependency of 18 years if the award is to be calculated as at the date of death but with the value of the service fixed by reference to the relevant cost at the date of trial. If the taking of that multiplier of 12 had depended significantly upon a theoretical uncertainty of the survival of the child then the fact that he had survived to age eleven and a half at trial would, and in my view should on the authority of Cookson v. Knowles, be taken into account in fixing the multiplier as at the date of death but it is not apparent that the multiplier of 12 did, in the judgment of the learned judge, so depend.
The difficulty, in my view, is that the taking of 12 years purchase to cover a maximum of 18 years lost services for this child appears to have depended largely upon the notion of discount for early receipt as at the date of death for services to be lost in the future over the ensuing 18 years. A sum awarded eleven and a half years after death provides, as explained by Lord Diplock in Cookson v. Knowles, in the first part of the award of damages, only compensation for the value of the lost services over that period and there is no element of receipt in advance of compensation for future loss. If the award is rightly calculated in this case, it must be because the law requires that the damages be calculated in that way, although the damages will be received as to eleven and a half twelfths as compensation for past loss; and that must be because, in law, the claimant's right is to a sum in damages calculated in that way and no other.
I turn then to consider whether, as Mr. Playford submits, there is authority which so provides. It is to be noted that in Cookson v. Knowles it was argued for the widow, that, if the award was to be calculated in two parts, it was inappropriate to take a multiplier from the date of death and to deduct the period of years from death to trail because that involved "deducting years from years' purchase". In particular it was submitted that the award, based upon a multiplier of 11 as at death, which was meant to compensate the plaintiff for the ensuing thirteen and a half years until the deceased would have retired at the age of 65, was inadequate. For the defendant, it was argued (page 563C) that, at four and three-quarter per cent., an 11 year multiplier was too much because the fund is not exhausted for 16 years and that took account of none of the contingencies of life. In particular the damages should be assessed at the date of death. Their Lordships held that, in a fatal case, the multiplier must be selected once and for all as at the date of death because everything that might have happened to the deceased after that date remains uncertain: see per Lord Fraser at page 576. The argument for fixing a multiplier at the date of trial in that case was less compelling than in this case, because the elapsed period of time between death and trial was markedly less, but the argument in substance was, in my judgment, the same and it was rejected.
In Graham v. Dodds [1983] 1 W.L.R. 808 the House of Lords rejected the contention that there was any difference upon this point between the opinion expressed by Lord Fraser and that of Lord Diplock in Cookson v. Knowles. In that case the plaintiff's husband was killed, aged 41, in December 1977 in a road accident for which the defendant admitted liability. The jury on 22nd January 1982 awarded total damages of £103,300 after directions by Lord Lowry C.J. The Court of Appeal in Northern Ireland dismissed the defendant's appeal. That decision was reversed by the House of Lords. At page 813G Lord Bridge said:
"The only issue arising in this appeal which is strictly one of law is whether, in assessing damages for loss of dependency arising from a fatal accident, the multiplier or number of years purchase should be calculated from the date of death or from the date of trial. Counsel for the defendant has contended for the former. Counsel for the plaintiff has throughout contended for the latter and this view prevailed with the learned Lord Chief Justice and the majority of the Court of Appeal".
Then at page 815G Lord Bridge continued:
"Accordingly, in so far as the learned Lord Chief Justice based his directions to the jury with respect to the multiplier to be applied in assessing future loss on the considerations appropriate in awarding damages for future loss of earnings to a surviving plaintiff in a personal injury case aged 45 (the age the plaintiff's husband would have attained at the date of trial if he had survived) and treated the pre-trial loss as "special damage", and in so far as the majority of the Court of Appeal approved the directions given on that basis, they erred in law".
It is necessary to note what the Court of Appeal in Northern Ireland had thought to be the difference between the opinions of Lord Diplock and of Lord Fraser as expressed in Cookson v. Knowles. Lord Bridge at page 814A continued:
"Gibson L.J. illustrated his understanding of the supposedly conflicting doctrines by indicating how they would apply in assessing the dependency of the widow of a young man killed at the age of 21 in the following terms:
'Should the action not come to hearing until 5 years had elapsed Lord Fraser would assess at death the multiplier, which I take at say 18, and he would then allow 5 years special damage and 13 years as the multiplier of future loss. Lord Diplock on the other hand, would also give 5 years special damage and then fix the multiplier on the assumption of the death of the deceased at the age of 26 years, which Mr. Hill conceded could not be appreciably less than the original figure of 18'.
On the basis of such a conflict Gibson and O'Donnell L.JJ. held themselves free to choose which of the two doctrines they preferred and both came down in favour of the view they attributed to Lord Diplock".
Lord Bridge then explained why the majority of the Court of Appeal in Northern Ireland had based their decision on a misunderstanding of the decision in Cookson v. Knowles. Lord Bridge concluded, with reference to the opinion expressed by Gibson L.J.:
"Such a doctrine, ignoring the uncertainty which, as Lord Fraser pointed out, affects everything that might have happened to the deceased after the date of his death, is clearly contrary to principle and would lead to the highly undesirable anomaly that in fatal accident cases the longer the trial of the dependant's claims could be delayed the more they would eventually recover".
For my part I have reached the conclusion that Mr. Playford is correct in his submission and that it is not open to this court to accede to the argument advanced by Mr. McGregor for the appellant and to hold that the judge was wrong, on the facts of this case, not to fix a multiplier as at the date of trial. The rule, which appears to me to have been laid down in Cookson v. Knowles and repeated in Graham v. Dodds, is to be regarded as part of the "artificial and conjectural exercise" to which Lord Diplock referred in Cookson v. Knowles and which is the product of decisions by the courts upon statutory provisions which have, in turn, been followed by further statutory provisions which have altered the law so laid down.
I have considered whether it would be possible to hold that, in fixing the multiplier as at the date of death, but having regard to the facts known at trial such as the rate of earnings, and the survival of the dependant, account should also be taken of the number of years which have elapsed since the death. If, as in this case, because of delay, eleven and a half years of the (otherwise) appropriate multiplier have elapsed, so that there will be no receipt in advance of a capital sum capable of earning interest, may the multiplier be adjusted to allow for that fact? I have read in draft the judgment of Purchas L.J. and I recognise the force of the reasons given by him in concluding that the court is entitled and required to have regard, in fixing the multiplier as at the date of death, to the fact that the award of damages is to be made eleven and a half years after the death. After much hesitation I have reached the conclusion that it is not possible to take that course without departing from the reasoning of their Lordships in Graham v. Dodds as set out above. So to do would be, as it seems to me, in effect, to calculate the multiplier as at the date of trial.
I would reject also the further submission made by Mr. McGregor for the appellant to the effect that, if the judge as right to fix the multiplier as at the date of death, the figure taken was, on the facts found by the judge, too low. As I have said, I accept that the survival of the plaintiff to age eleven and a half at the date of trial was a relevant fact to which the court should have regard just as the court had regard to the evidence as at the date of trial as to the cost of the services of a nanny etc. There is, however, in my judgment, no material upon which this court could hold that the learned judge misdirected himself in this regard in fixing the multiplier at 12. It was, as I have said, a multiplier which it was open to the learned judge to take on established principles having regard to the ordinary uncertainties of life and the methods of calculating the multiplier in cases of this nature which have been approved over the years by the courts.
The remaining issue is, as mentioned above, the judge's assessment of the plaintiff's chances of proceeding to some education or training after the age of 18. The learned judge noted that the onus of establishing that the plaintiff was likely, on the balance of probabilities, to proceed to tertiary education was on the plaintiff himself; and held that he had failed to discharge that onus because "on the evidence the position is evenly balanced: he may or may not go on to higher education". Mr. McGregor submitted that the learned judge was wrong to regard this matter as a fact which the plaintiff was required to prove positively that, if he failed to prove as a fact that he would proceed to tertiary education, the judge was required to disregard any chances that there might be of the plaintiff continuing to be dependent upon his mother after the age of 18. For my part, I think that Mr. McGregor is right in this submission at least to the extent that the judge failed expressly to direct, himself in accordance with the principle stated by Lord Reid in Davis' case. The judge should have asked himself what reasonable chance there was of the plaintiff proceeding to tertiary education and, if there was such a reasonable chance, to place a "Value in percentage terms upon it. I reject the submission that, because he failed to do that, this court is bound to accept that the chance was of the order of 50%. I would give effect to this point by increasing the multiplier from 12 to 13. That would add the sum of £2,600 to the total award.
I would not disturb the ruling of the learned judge as to interest for the reasons given by Purchas L.J.
LORD JUSTICE FARQUHARSON: This is an appeal from a decision of Judge Hayman sitting as a Deputy High Court Judge in London on 5th June 1989.
The appellant had claimed, by his father as next friend, damages under the Fatal Accidents Act 1976 for the death of his mother which he alleged had been caused by the negligence of the respondent.
The appellant was born on 27th October 1977 but during the course of the birth the administration of an anaesthetic to the mother had been so mismanaged that she contracted a serious infection and died on 12th November 1977 aged 29. There was a long delay before a writ was issued on behalf of the appellant on 6th August 1985. Before the trial the respondent admitted liability so that the only issue before the judge was of damages. For general damages he awarded the sum of £32,000 to which he added a further £3,000 for the loss of the additional services his mother would have given by way of care, guidance and instruction. After reducing the amount he would otherwise have awarded for interest to 615,110 because of the delay the judge gave judgment for a total sum of £50,110.
The appellant has been brought up by his grandmother who undertook the care of him after his mother's death. Her task could not have been an easy one as four of her own children were still living at her house, as well as her husband at the time of the appellant's arrival. Mrs. Corbett had just turned 57 and had to give up a job she had recently taken. So far as possible she gave her grandson a mother's care and according to the boy's father had done a first rate job in looking after him. The judge expressly found that father and son were extremely fortunate that Mrs. Corbett was able to take over the role of substitute mother. She said in evidence that she expected to look after the appellant until he left home.
The appellant first went to school at the age of five and this involved Mrs. Corbett taking him there and fetching him home in the afternoon. Additionally she had to bring him home for lunch and then return him to school until the age of nine because he found it difficult to settle with other children. Since that time her duties have been less onerous.
The Multiplicand
Owing to the difficulty in calculating the loss of mother's services on a claim of this nature the courts have derived assistance from evidence of the amount of wages paid to a nanny housekeeper carrying out the kind of duties that the mother would otherwise have done. The figure which is considered by way of comparison is the net in hand wage, that is to say the sum available to the nanny/housekeeper after payment of tax and other statutory deductions. It has always been emphasised that this comparison exercise is only a guide to the courts and is not to be taken too precisely. Thus as the dependent child grows older he will not require the services of a trained nanny although he will still need somebody to cater for his general needs. In the present case this class of evidence was investigated in considerable depth. There were no less than four witnesses called who ran employment agencies for the services of nannies and nanny housekeepers. This evidence was broadly directed to the cost of employing people who gave these services. Two of these witnesses gave the net in hand figure current at the date of trial as £132 per week, although one of them said that if the role to be filled was one of substitute mother the figure would be higher. The other two put the figure at £100 a week. A considerable amount of evidence was given by these ladies of the needs of a growing child in this context and what paid help and supervision would be necessary at different times of his or her upbringing. For my part I would rather doubt whether these witnesses could properly give expert sociological evidence of this nature. It underlines the importance of not placing too much reliance on evidence of the cost of employing people who undertake a mother's work. The judge accepted the evidence of the two witnesses who gave the lower figure of net in hand wage at the date of trial, and for the purpose of his assessment of the loss of dependency calculated the figures from 1977 onwards on the basis of that evidence. Mr. McGregor appearing for the appellant criticises the judge's findings on two grounds; first that the judge's assessment was against the weight of the evidence, and second that he failed to take into account the costs of "cover", as it has been called in this appeal. This term describes the cost of hiring help during the weekends and holidays when the nanny/housekeeper is not on duty.
The answer to the first of these criticisms is that it was for the judge to decide whose evidence he accepted and whether in whole or in part. Mr. McGregor has taken us through the transcripts of the evidence devoted to this part of the case in some detail, but this exercise revealed nothing to suggest that the judge's findings were not sufficiently supported by the evidence. Equally when the judge came to assess the multiplicand on the basis of the net in hand wage it was not necessary for him to engage in an exact mathematical calculation. If he took the annual net in hand wage of a nanny as the appropriate figure, as he did, there was no obligation to augment it with additional sums for time off in respect of sickness or holidays. It is probable that had she lived the appellant's mother would, like most young parents, have asked friends or grandparents to baby-sit or have the child to stay during holidays or at weekends, but it would be unreal for the court to discount the damages for such reasons. Mr. McGregor's submission would oblige the judge to treat the comparison with a nanny's wage as a precedent to be followed rather than as a guide to the cost of the mother's services.
In respect of the period from the age of six until eleven and a half, which was the appellant's age at the date of trial, the judge assessed the value of the lost services at one half of the in hand wages of a nanny/housekeeper on the basis that less care and supervision or services were necessary than for the first six years of the appellant's life. Mr. McGregor submits that this is too great a reduction, especially bearing in mind that the appellant had to be taken to and fetched from school twice a day until the age of nine. The judge of course was seeking an average in establishing the amount of care required to bring up a boy between the ages of five and eleven. No doubt in the early part of that time when the appellant was only six the average figure would appear to inadequate to pay for the necessary care but it would be outbalanced by the appellant's decreasing needs as he grew older. For my part I would endorse the judge's method of calculation in this part of the case.
The award of £3,000 for the loss of those services which a mother would give but which would not be given to the same degree by a substitute was also criticised as being inadequate. Awards of this nature are of fairly recent growth and a pattern has yet to emerge. The possibility of an award on these grounds was considered in this court in Hay v. Hughes [1975] QB 790 and given in Regan v. Williamson [1976] 1 W.L.R. 305 and in Mehmet v. Perry [1977] 2 All E.R. 529. In the present case the judge took into account the special services given by Mrs. Corbett to the appellant saying that she was the next best thing to the mother herself, treating him as one of her own children. The judge took the view that "there is little, if anything at all between the quality of the service given by the grandmother and that which would have been given by the deceased mother". The judge further considered the difference in age between the mother and grandmother as a disadvantage to the appellant. Having properly considered all those matters the judge was entitled to come to the conclusion, as he did, that a modest sum for damages under this head was appropriate.
The multiplier
In assessing damages under the Fatal Accidents Act the multiplier should be calculated from the date of birth. Kay v. J.N.P. [1976] 1 Q.B. 85. This is in contradistinction to the way a multiplier is fixed in a personal injuries case which is at the date of trial. The difference is explained by Lord Fraser in Cookson v. Knowles [1979] AC 556 at page 576 where he says:
"In a personal injury case, if the injured person has survived until the date of trial, that is a known fact and the multiplier appropriate to the length of his future working life has to be ascertained as at the date of trial. But in a fatal accident case the multiplier must be selected once and for all as at the date of death, because everything that might have happened to the deceased after the date remains uncertain".
In the present case the judge fixed the multiplier at 12. When the case came to trial 11 1/2 of that number of years purchase had expired. Following the decision of the House of Lords in Cookson v. Knowles (supra) the judge divided his award between the pre trial loss and the future loss. So 11 1/2 years of the multiplier was applied to the pre trial loss and the remaining half year was used to calculate the post trial loss. One recognises that any calculations of this kind bears a considerable degree of artificiality which may be justified on the basis that nobody has devised a better method of calculating damages in Fatal Accident cases, but the position borders on the absurd when the effect is that a healthy eleven and a half year old boy at the time of the trial is assessed as having a multiplier of half of a year. Mr. McGregor's solution is that one should at the time of trial make another calculation of the number of years purchase appropriate to the dependant. The dependency is likely to terminate when this appellant reaches the age of 18 so a fair estimate would be a further five years purchase from the date of trial whatever the appropriate multiplicand might be.
Mr. McGregor justifies his submission by contending that the relevant or dominant life for the purpose of calculating the multiplier in the present case was not the mother's but the appellant's. On an actuarial basis the mother, had she not died as a result of the respondent's negligence, would have lived more than the eighteen years of the appellant's dependency, so the relevant life for the purpose of calculating the appropriate award of damages, and for the accelerated receipt of the capital sum is the appellant's. Therefore argues Mr. McGregor, his survival to the age of eleven and a half is a factor which must be fed into the equation and which would result in a further multiplier.
Mr. Playford for the respondent views these arguments with alarm. He submits that the basis of calculating damages in Fatal Accident Act cases has now been established for ten years since the decision in Cookson v. Knowles. It has worked satisfactorily and to accede to Mr. McGregor's submissions would simply throw this area of the law into uncertainty. The artificiality of the calculation in the present case has been caused by the lamentable delay in the prosecution of the claim. Mr. Playford further submits that acceptance of Mr. McGregor's arguments would be in conflict with decisions of the House of Lords not only in Cookson v. Knowles but in the later case of Graham v. Dodds [1983] 1 W.L.R. 808 which followed Cookson v. Knowles. Finally it was not the approach of this court in the recent decision in Spittle v. Bunney [1988] 1 WLR 847. In that case which on the facts was not dissimilar to the present the child, Kate, was three and a half years old at her mother's death and ten at the time of the trial. The judge took the view that Kate would proceed to tertiary education of some sort and fixed the multiplier at 11. In the Court of Appeal Croom-Johnson L.J. regarded that as being on the high side, though not too long.
In my judgment it is not open to this court to calculate the measure of damages as at the time of trial as Mr. McGregor suggests even in the restricted case where a dependent is claiming damages for loss of a mother's services. The two decisions of the House of Lords cited above do not permit that course and we would similarly be in conflict with this court's decision in Spittle v. Bunney. It also ignores the possibility of the mother not living the full term of eighteen years even if she had not died as a result of the respondent's negligence. The calculation must be based on a continuation of joint lives. However, the survival of the dependent in good health to the date of trial may have some significance. It becomes a "known fact" as Lord Fraser puts it. The longer the period from the death to the trial the more significant it will become. It must be recognised that this may put a premium on delay, but the court has other weapons to compensate for that. The extent to which such a 'known fact' should increase the multiplier of general damages will depend on the facts of an individual case but on any view some account must be taken of it.
The damages awarded
In the present case when deciding upon the appropriate multiplier (as from the date of death) the judge should have taken into account the fact of the appellants' survival for a period of eleven and a half years. If he had done so he would, in my judgment, have set a higher figure than 12. There was in this case little discount to be made for the accelerated receipt of a large capital sum so that factor could not have affected the judge's mind when fixing the multiplier. For these reasons and for those examined more closely in the judgment of Purchas L.J. this court should, in my opinion, increase the multiplier to reflect the fact of the appellant's survival to the date of trial. I agree with the comments of Purchas L.J. that a further small addition to the multiplier should also be made in respect of the appellants chances of further education. In the result I would hold that a figure of 15 should be substituted as multiplier for the 12th applied by the judge. On the basis of this calculation the figure for post trial damages should be £9,100 rather than £l,300.
Interest
The judge disallowed four years of interest on the sum awarded because of the delay in bringing the claim. That he had the power to take such a course in the exercise of his discretion is established by the decisions not only of Cookson v. Knowles but also of Jefford v. Gee [1970] 2 QB 130 and Birkett v. Hayes [1982] 1 W.L.R. 816. Mr. McGregor complains that the judge has disallowed too much, bearing in mind that one is here dealing with an infant plaintiff. For my part I reject that argument. The power to deprive a tardy litigant of interest when he is guilty of unjustifiable delay is an essential discipline. The period of four years in the context of this case is one the judge could properly identify as being justified.
I would allow the appeal to the limited extent indicated in this judgment.
Order: Appeal allowed with costs of appeal; leave to appeal to House of Lords.
