England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE.
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice.
		Thursday 17th October 1974.

LORD EDMUND-DAVIES: The defendant appeals from the judgment of Mr. Justice Reeve dated October 24th, 1973, in an action brought against him under the Fatal Accidents Acts, 1846 to 1959, and the Law Reform (Miscellaneous Provisions) Act, 1934. The appeal is said to raise problems in the law of damages hitherto unconsidered by the Courts or, if considered, not always satisfactorily solved, and we have been referred to a very large number of authorities on the subject during its hearing.

The plaintiffs are the administrators of the estates of Francis Hay, deceased, and of his wife Patricia, both of whom were killed in a motor accident on January 10th, 1970, for which the defendant admitted liability. The action was brought on behalf of their estates and also on behalf of their two sons, born on July 29th, 1965, and May 24th, 1967, and accordingly 4 1/2 and 2 1/2 years old when their parents were killed. The total award was for £20,120.30p, £16,400 being in respect of the Fatal Accidents Acts claims (£7,900 relating to the death of the father and £8,500 to the death of the mother) and £1,110.30p under the 1934 Act, the balance consisting of interest. The appeal relates only to the awards under the 1846 Act, as amended, which the defendant challenges as being wrongly arrived at and excessive, while by a respondent's notice the plaintiffs seek to have both awards increased.

The relevant facts, which were set out in detail by Mr. Justice Reeve may for present purposes be summarised in this way. When the fatal accident occurred, Mr. Hay was nearly 29, his wife nearly 25. They lived with their children in a 3-bedroom house which he had bought on mortgage. After working for some years with the National Coal Board, he became a trainee welder in August, 1969, and soon showed considerable aptitude. His average weekly take-home pay at the time of his death was nearly £24.00. His chances of promotion were good and, had they been realised he would have been earning net weekly wages of £40.00 by April, 1973, when the case was first heard. The learned Judge accepted that this net wage would have been apportioned within the family circle in the manner indicated by plaintiff's counsel. On this basis he concluded that the total annual dependancy of the two boys on their father at the date of trial was £1,100. But, recognising that, while exceeding the figure prevailing at the date of the accident this was also less than the figure appropriate for the future, he said that he would bear those competing considerations in mind when considering the multiplier. He eventually applied a multiplier of 9 to both claims under the Fatal Accidents Acts.

Section 2 of the 1846 Act provides that, "the jury may give such damages as they think proportioned to the injury resulting from such death to the parties for whom and for whose benefit such action shall be brought". The relevant facts in connection with the orphaned children's' dependancy on their father were not disputed, but the position was markedly different in respect of the claim brought in relation to the mother's death. I quote from the words of the learned trial Judge:

"After the death of their parents the two boys were taken in by their maternal grandmother (Mrs. Toone) who has cared for them ever since, except for one and a half days at weekends and for some holiday periods when they are cared for by their paternal grandparents. Mrs. Toone has received no payment for keeping the children, and she candidly admitted to me that the question of payment never entered her head when she decided to act as mother-substitute for these two orphans. It is true that on the 18th March, 1972, she signed a letter, addressed to the Plaintiffs in their capacity as administrators of the estates of Mr. and Mrs. Hay, in which she stated:

'I am writing to advise you that as from this date I am charging the estate of the above-named deceased the sum of £5 per week in respect of each of the two children ... This total sum of £10 is for my time and trouble in looking after the said children'.

No secret has been made of the fact that such a letter was written on legal advice in the hope that the Plaintiffs' case on the quantum of damages to be recovered in these proceedings would thereby be strengthened; and Mrs. Toone freely admitted that she intends to continue to care for the children irrespective of whether she is or is not paid for so doing. It is now conceded by counsel that the letter is irrelevant to the assessment of damages.

"Mrs. Hay (deceased) was not at any material time engaged in gainful employment. Her energies were exclusively devoted to caring for the family as a wife and as a mother. The children have, by her death, been deprived of the full-time services of a mother."

As the cases repeatedly remind us, the starting point must always be the wording of the Fatal Accidents Act, 1846. That these two infants were "injured" by the death of their mother is not, in my judgment, open to doubt. Thereby they were deprived of her services which had that pecuniary value which, ever since Franklin -v- S.E. Railway (1858 3 H & N. 211), has been held to be the basis of an award under the Act. What is contested is how the damages proportionate to that injury are to be arrived at, and the difficulty is due to the two-fold nature of the exercise involved. This was explained in Malvon -v- Flummer (1964 1 Q.B. 349) by Lord Diplock who said (at p. 349):

"The pecuniary loss which the Court has to assess is a loss which will be sustained in the future. This involves making two estimates, videlicet, (1) what benefits in money or money's worth arising out of the relationship would have accrued to the person for whom the action is brought from the deceased if the deceased had survived but has been lost by reason of his death; and (2) what benefit in money or money's worth (subject to certain statutory exceptions) the person for whom the action is brought will derive from the death of the deceased which would not have been enjoyed had the deceased lived. The difference between these two estimates is the measure of damages recoverable under the Fatal Accidents Acts, 1846 to 1959".

As to the first estimate, we begin with the undoubted fact that, by reason of her premature death, these two very young children lost the care which their 25 year old mother could reasonably have been expected to continue to bestow upon them for several years to come. In Pevec -v- Brown (1964 108 S.J. 219) a widower claimed on behalf of himself and his infant son damages in respect of his wife's death, and contended that compensation should be awarded for loss, not of a mother's love, but for the disadvantage of the care which the child would receive from the nanny whom the father had engaged as compared with that which he would have received from his mother had she survived. The report is a very short one, but it appears that, in rejecting this submission, Mr. Justice Megaw adverted to the "irrecoverability of compensation for the father's loss of the companionship of his wife" and, saying that there was no distinction in principle in relation to the child, held that no damages should be awarded in respect of any element of the child receiving less care than he would have done had his mother survived. Were it now necessary to decide the point, I am not at present convinced that I should take the same view, and it is to be noted that in Burgess -v-Florence Nightingale Hospital (1955 1 All E.R. 511, at 513) Mr. Justice Devlin expressed the view that damages should be awarded "for what the child lost by the wife's death, both in respect of the school fees and of what she might have done for the child". While it is undoubtedly established that damages can be awarded under the Fatal Accidents Acts only in respect of pecuniary loss and not as a solatium for injured feelings (see Taff Vale Railway -v- Jenkins 1913 A.C.1, per Lord Haldane, V.C. at p.4, and Davies -v- Powell Duffryn, 1942 A.C. 601, at 617), so that these two children could recover nothing for the deprivation of their mother's love, yet it may sometime have to be considered whether Mr. McGregor is not right in saying (McGregor on Damages', 13th Ed., para 1234) that "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 child, difficult as it is to assess".

Be that as it may, in the present case it was accepted by the defence that in different circumstances these children would have been entitled to damages for the quantified loss of their mother's services.

Mr. Turner conceded that if a nanny or housekeeper had been engaged by the plaintiffs to look after these children, the cost of employing her would be recoverable from the defendant (as in Berry -v-Humm 1915 1 K.B. 627 and Jeffrey -v- Smith. 1970 R.T.R. 279) and, furthermore, that the salary of £15 a week claimed by the plaintiffs and adopted by the learned trial Judge as the estimated cost of obtaining her services could not then have been challenged. Similarly, it is accepted that, had Mrs. Toone (their grandmother) given up a paid job in order to look after her grandchildren, the administrators could have recovered in the action a sum equivalent to her losses to date and in respect of her future salary losses.

But the engagement of a nanny or housekeeper has not taken place nor is it contemplated, and granny gave up no paid job, though it has already been noted that she has evinced a desire to be paid £5 a week in respect of her services to each child. She has taken them in and looked after them "without any thought of payment" just as she would have done had their parents died of natural causes, and she told the trial Judge that she intended to care for them indefinitely in exactly the sane way. As a result, they have unquestionably benefited from her care, and it is this fact which has given rise to difficulty in considering the second of the estimates referred to by Lord Justice Diplock. Mr. Turner has submitted that all the trial Judge could properly do would be to award the plaintiffs something to cover the risk of Mrs. Toone's services ceasing and hired service having to be obtained. Then can it be truly said that Mrs. Toone's services "derive from the death of the deceased"? They would undoubtedly not have been rendered had the children not become orphans, but are those services relevant to the balancing operation involved in assessing, in the words of Sec. 2 "the injury resulting from such death"?

This question has not infrequently arisen in earlier cases. It is not easy to extract from them any test which may be universally applied nor to reconcile all the decisions. Clearly, not all events that happen after a death can be said to have resulted from it. Thus, it has been held that no deduction should be made for rent received from lodgers whom a widow started taking in after her husband's death (Buckley -v- John Allen and Ford (Oxford) Ltd., 1967 2 Q.B. 637); the High Court of Australia has decided that none should be made from a widow's award because she had gene out to work (Carroll -v- Purcell 1962 35 A.L.J. 384); and in this country a similar conclusion was arrived at by Mr. Justice Cumming-Bruce in Howitt -v- Heads (1973 1 Q.B. 64). But in this case, the mother having also been killed, it is said by the appellant that the position is entirely different where granny works gratuitously for the two orphaned children.

Several of the earlier reported cases would now have to be decided differently. This arises from the Fatal Accidents (Damages) Act, 1908, and the Fatal Accidents Act, 1959, the latter providing that no deduction shall be made for a wide range of money payments following upon death which would otherwise have had to be taken into account. Nevertheless the earlier cases have still to be home in mind when considering whether a benefit received by the dependants after the death, but not consisting of the payment of money to them, is to be regarded as "resulting from such death".

Broadly speaking, it was considered that payments received as a result of arrangements already set up to meet the eventuality of death did so result. Thus in Baker -v- Dalgleish (1922 1 K.B. 361) the Court of Appeal held that the fact that a widow was in receipt of a Crown pension ought, as- a general rule, to be taken into consideration, notwithstanding that payments depended on the voluntary bounty of the Crown, Lord Justice Younger saying (at p.380) that "... their voluntary character cannot affect the value of those payments already received", though Lord Justice Banks stressed(at p.369) that, "the reasonable expectation of their continuance must, I think, be taken into account", while Lord Justice Scrutton said(at p. 372) that regard must be had to "the extreme probability of the Admirality not continuing the pension if compensation could be recovered from the wrongdoer".

But the position was and is less clear where payments are made or services having pecuniary value are rendered in circumstances never foreseen before the death. In Baker -v- Dalgleish (ante) all members of the Court of Appeal approved of the view expressed by Mr. Justice Greer in the lower Court that sums subscribed by fellow workmen of the deceased would not be deductible, Lord Justice Younger saying (at p.380),

"I conceive that normally in such cases the amount of the subscription is largely personal to the beneficiaries, and is materially affected by their merit in the eyes of the subscribers or the reverse".

Similarly, in Redpath -v- County Down Railway (1947 N.I.R. 167) it was held in a claim for personal injuries (which in that respect is not distinguishable from a fatal accident claim) that money received by the plaintiff from a fund subscribed to by the public in respect of a railway disaster was not deductible from what would otherwise have been his proper entitlement to damages. And in Peacock -v- Amusement Equipment Co. Ltd. (1954 2 Q.B. 347), where the plaintiff did not benefit under the will of his deceased wife but his step-children (to whom his wife had bequeathed everything) voluntarily paid him a sum equivalent to one-third of the value of the estate, the Court of Appeal held that no deduction should be made from his Fatal Accident Act damages on that account. Lord Justice Somervell said (p.354)

"I think that it would be only in very unusual circumstances that a voluntary payment would be taken into account when there was no expectation of it at the time of the death. It seems to me that that indicates for itself that there is a novus causa interveniens which makes the payment not in consequence or as a result of the death .... Of course (this payment) would not have been made unless the wife had died, but I would have said that it was the result of the stepchildren's' consideration and perhaps affection for their stepfather."

In line with this was the decision of Mr. Justice Nield in Voller -v- Dairy Produce Ltd. (1962 1 W.L.R. 960) that the claims of infant daughters in respect of their father's death were not to be reduced by the fact that they had been taken into the home of their aunt after the subsequent death of their mother and were being well looked after. A similar case is Rawlinson -v- Babcock & Wilcox Ltd. (1967 1 W.L.R. 48I) where proceedings under the Fatal Accidents Acts instituted by the widow of a man employed by the defendants were brought to trial in the names of her administrators, she herself having died sixteen months after her husband. Their orphaned daughter was then taken into the home of an uncle, and another uncle gave her money presents from time to time. On these facts, it was submitted on behalf of the defendants that she was no worse off than she would have been had her father still been alive. Rejecting this submission, which he considered was based upon a misunderstanding of certain observations of Lord Justice Jenkins in Mead –v- Clarke Chapman Co. Ltd. (1956 1 W.L.R. 76) which must shortly be considered, Mr. Justice Chapman held that the support extended to the girl by her two uncles arose fundamentally from motives of charity and benevolence and must be ignored, as their operative cause was not the fact of death but the voluntary decision of the donors activated by motives of compassion towards a person in distress. I disagree with the submissions of appellants' counsel that these last two cases were wrongly decided.

In performing the balancing operation involved in assessing fatal accident claims, it is established that, just as it is not necessary that the claimant should have a legal right to pecuniary benefits from the deceased and that it is enough that there was a reasonable expectation of their continuance, voluntary though they may be, "so the probability of voluntary contributions bestowed in consequence of the death may be used to reduce the claim by showing what loss the claimant has in fact sustained by the death. Less weight will be given to voluntary contributions than by those made under legal obligation, just because they are voluntary" (per Lord Justice Scrutton, Baker -v- Dalgleish, ante, atpp.371/2). Cases arising from the remarriage of the widow illustrate both types of expectation. Until the passing of the Law Reform (Miscellaneous Provisions) Act, 1971, in assessing the damages payable to a widow there had to be taken into account her prospects of remarriage and so acquiring the legal right to be maintained by her new husband, thereby reducing her dependancy and, it may be, terminating it altogether (Davica -v- Powell Duffryn, ante, Goodburn-v- Thomas Cotton Ltd. 1968 1 Q.B. 845). Accordingly, in Mead -v- Clarke Charman Ltd. (supra), the second husband earning as much money as the first, Hr. Justice Donovan awarded the widow damages only in respect of the period between the death of her first husband and her remarriage. But a similar limitation in respect of her infant daughter was disapproved of by the Court of Appeal, Lord Justice Singleton, saying (at p.8l) –

"I do not think that it is right to say that no regard should be paid to the fact that the daughter has & stepfather who is kind and good to her ... But it should not be assumed that of necessity the position will remain the same ... There is a difference between a father and a stepfather, in that the father can be forced to support his child if he fails to do so, while the stepfather cannot. Over and above that, if there is a father as a standby, when the child is getting a little older the father may well be willing to do something for his own child, to help it forward in education or in some other way, a burden which a stepfather might not be willing to undertake ... I do not consider it was right to say that no damages after the second marriage should be given in respect of the child's claim".

As to the submission that the acquisition of an affectionate stepfather should be ignored in that the mother's remarriage gave her daughter no rights of maintenance against the stepfather and that, in accordance with Peacock -v- Amusement Equipment Co. Ltd. (ante), the defendants could not take advantage of the stepfather's voluntary actions in undertaking the care of his stepdaughter, Lord Justice Jenkins said (p.83):

"Clearly, if the father had not died, the mother could not have remarried and the child could never have acquired a stepfather. She could not have the advantage of being protected by two fathers at one and the same time; so that the financial advantage to her of the protection of the stepfather was something that she could not have enjoyed but for the death of her father. In ray view, there is a sufficient causal connection here to make it proper to take into account the financial consequences to the child of the remarriage of her mother".

For myself, I have some difficulty in following this approach and there seems force in the view expressed by Professor Street (Principles of the Law of Damages', 1962, p.181) that, "Only if the Court of Appeal had found that at the death it was probable that the child would be maintained by a kind stepfather would the decision be correct". The Matrimonial Proceedings (Children) Act, 1958, Sec. 1(1) provides that if a widow remarries and her children are accepted as members of the family by their stepfather, he incurs a legal obligation to maintain and educate them. But even this does not, in my judgment, mean that if a widow with a child has prospects of remarriage or has even actually remarried (as in Reincke -v- Gray, 1964 1 W.L.R. 832 C.A.) the dependancy of the child thereupon terminates, for it may never "be accepted as one of the family" by the new husband, and, even if it is, the chance that it may not be as well-treated financially by the stepfather as it would have been by the natural father had he lived must be allowed for, just as it was before the 1958 Act (see Mead -v-Chapman,ante).

It is for the defendant to a Fatal Accident Acts claim to establish that there must be offset against the loss caused by the death benefits received after that death (Baker -v- Dalgleish, ante, per Lord Justice Younger at p.377; Peacock -v- Amusement Equipment Ltd. ante, per Lord Justice Somervell at p.354; and Mead -v- Chapman., ante, per Lord Justice Parker at p.84). And there is a presumption against deducting the value of unpaid services rendered to a bereaved person. This is in conformity with the general policy against deductions evinced by the 1959 Act. The observations of Lord Justice Somervell in Peacock_. ante, at p.354) on this matter have already been referred to. In Shaw -v- Mills (Kemp on Damages, Vol. 2, p.180) the Court took into account in its assessment of damages the value of services rendered to her father by a daughter after her mother's death. Lord Justice Sellers saying that they "were not actually compensated for but will be out of the damages". And a whole series of cases dealing with non-fatal claims establish that the injured plaintiff can recover the value of nursing and other services gratuitously rendered to him by a stranger to the proceedings: Parry -v- Cleaver (1970 AC 1, per Lord Reid at p. 14), Cunningham -v- Hamson (1973 1 Q.B. 942, per Lord Denning, M.R., at p.952), and Donelly -v- Joyce (1974 1 Q.B. 454, per Lord Justice Megaw at p.462).

I have difficulty in reconciling the rationale of Jenner -v- Alan Court Ltd. (1959 1 W.L.R. 554) with the increasing tendency of the Courts to make no deductions for purely voluntary benefits in claims in respect of personal injuries, fatal or otherwise. A man was killed in the course of his employment at his employer's premises, and his personal representatives successfully sued them under the Fatal Accidents Acts for negligence and statutory breaches. Before the matter came to trial the employers had made voluntary payments to the widow but there was no evidence that they had done anything of the sort before. Lord Evershed, M.R. and Lord Justice Pearce held that these payments had to be deducted from the widow's damages. There is nothing remarkable in that finding; such an approach is adopted frequently by the Courts in respect of ex gratia payments, which are often regarded as being impliedly made simply without prejudice to any claim which may be advanced but nevertheless on the basis that they are to be taken into account in the event of liability being established. But that is not how the Court arrived at its decision. Lord Justice Pearce said (at p.565):

"Had the pension come from the generosity of some third party who was in no way concerned with the accident, one might well say that it did not result from the death but from that generous impulse. But here the employers paid the pension to the widow of a man whose whole working life had been spent in their service and who had met his death while working on the roof of –their premises. It is true that there is no evidence as to their motives or their usual practice or the machinery by which they instituted the pension ... But the claim of causation is so direct and so strong on the few facts that are known to us, and any inferences that would break or weaken that chain are so unlikely and remote that, in my view, the pension should be taken into account as resulting from the death".

Lord Evershed, H.R. expressed himself similarly at pp 568-9. But, in the light of the exigucas facts, how can it be said that at the moment of death there was a reasonable expectation that the employers would act as they did? For my part, I find it impossible to hold that there was and, applying that test alone, I should have held that the payments must be ignored.

The fact is that it is impossible to extract from the large number of decided cases one universal test or principle, and, indeed, in Jennet's case (at p.565) Lord Justice Pearce warned against making the attempt. In Monarch S.S. Co. Ltd. -v- Karlshamns (1949 AC 196, at 232) Lord du Parq stressed that,

"in the end what has to be decided is a question of fact, and therefore a question proper for a jury",

and continued:

"Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality, and not too rigidly applied. It was necessary to lay down principles lest juries should be persuaded to do injustice by imposing an undue or perhaps an inadequate liability on a defendant. The Court must be careful, however, to see that the principles laid down are never so narrowly interpreted as to prevent a jury, or judge of fact, from doing justice between the parties. So to use them would be to misuse them".

There was canvassed before us the question of what the position would be had these two orphaned children been taken into care of the local authority, pursuant to Sec. 1 of the Children Act, 1948. But this not having occurred, the question is not before us and does not call for consideration. Nor, in my respectful view, does allusion to it assist in determining the problem now being considered, for, as Lord Justice Buckley said in the course of counsel's submissions, the fact that faute de pleux these children might have been taken into care does not affect the situation where, as here, they are not.

How would a jury have regarded this case? Would they have accepted the defendant's invitation to say that, in the events which have occurred, either (a) no loss measurable in money terms had been suffered by the dependant children by reason of the death of their mother, or, (b) alternatively, that the services already rendered by the grandmother are "benefits resulting from the death" and should therefore be taken into account, with the result that all the children were entitled to recover was something to safeguard them against the contingency that, for one reason or another, her services might cease to be available? Or, as the plaintiff's counsel at the trial and before us contended, would they say that, by reason of their mother's death, the children had lost her services which, had their father not also died, would have been replaced by a paid housekeeper, and that compensation should therefore be assessed by reference to the probable cost of so doing; that damages should be calculated on this notional basis even though the children were in fact housed and cared for by the gratuitous services of their grandmother; and that these services were not benefits "resulting from the death" and therefore do not require to be brought into account?

As to (a) Mr. Turner has urged that, there is no "reported case where the replacement of a deceased wife's services not having taken place or been contemplated (unlike Berry -v- Humm, ante), the Court has awarded damages for the pecuniary loss of those services and that this lack of precedents is due to the obvious absence of any right to recover such damages. I disagree. In my judgment, the fact that a widower decided to manage for himself after the death of his wife would not disentitle him to sue for and recover damages for the pecuniary loss he had nevertheless sustained. And, in the same way, the fact that the orphaned children here have incurred no expense in engaging a housekeeper to look after them does not destroy or diminish that right to be compensated which the defendant concedes would be theirs had such expense actually been incurred or had the grandmother given up a paid job in order to look after them. As to (b), in my judgment, while the need for the grandmother's care undoubtedly arose from the mother's death, the view which a reasonable jury would be likely to adopt would be that the children benefited not as a result of their mother's death but simply because the grandmother had taken it upon herself to render them services. At the time of their mother's death it was anyone's guess what would happen to them and the defendant has not discharged the onus of establishing that at that time there was a reasonable expectation that the grandmother would act as she subsequently did. Then aged 49 she already had substantial domestic responsibilities of her own (she had three teenage children and she too lived in a three-bedroom house) and it would not have been surprising had she decided against adding to them. In my judgment, it would be an unreasonable conclusion were a jury or judge of fact to hold that, because she was moved by their plight to act as she did, her generous action fell within Sec. 2 of the 1846 Act.

For these reasons I hold that the learned Judge rightly came to the conclusion that the grandmother's services should be ignored in calculating the financial loss sustained by the children as a result of the death of their mother.

In relation to the childrens' dependancy on their father, the appellants make no criticism of the learned Judge's award of £7,900, save in relation to a figure of £604 per annum adopted by him in respect of the provision of a house and such .additional items as fuel, power and repairs. It is said that, having regard to the family budget at the time of death and the fact that the children did not occupy the whole house £604 is an excessive figure. I restrict myself to saying that I do not regard this criticism as well founded.

As to their dependancy on the mother, the appellants accept that if the approach of the learned Judge was right and if the appropriate test is what it would cost to engage a nanny-housekeeper the £8,500 he awarded cannot be effectively attacked.

On the other hand, the respondents attack both awards on the ground that a multiplier of 12 should have been applied, instead of the figure of 9 adopted, but I see no reason to differ from the finding of the learned Judge on this point. The respondents also attack as inadequate the multiplicand of £1,000 adopted in relation to the mother's death. They say that this figure ignored the cost of a housekeeper's maintenance and that £234 per annum should have been added therefor; that the Judge omitted the cost of engaging a substitute housekeeper for a fortnight in each year (£42.00); and that, having done his sum, he unwarrantably reduced the annual total of £1,099 arrived at to a round figure of £1,000. In the result, so it is submitted, there was a shortfall of £375.00 per annum, to which the multiplier of 12 contended for should be applied. Such criticisms are in my judgment ill-founded. Clerk & Lindsell ('Torts', 13th Ed., para 430) is right in saying that, although some arithmetical calculations are necessarily involved in the assessment of the loss in such cases as the present, much of the calculation must be in the realm of hypothesis. As Lord Justice Pearce said in Daniels -v- Jones (1961 1 W.L.R. 1103, at 1110), arithmetic is a good servant but a bad master. The loss suffered by the dependants must be assessed as best they can in the light of the particular facts. But, having done his arithmetic, there comes a stage when the Judge has to stand back and look at the result. When he does, he should bear in mind the wise words of Lord Justice Willmer who said in the last mentioned case (at p.1113), "In what is essentially a jury question the overall picture is what matters. It is the wood that has to be looked at, and not the individual trees". I think the trial Judge sought to do that in the present case. I also think that, after prolonged reflection, he did it well, and I would not disturb his awards either separately or in their totality.

In the result I would dismiss both the appeal and the cross-notice.

LORD JUSTICE BUCKLEY: The Fatal Accidents Act, 1846, Sec. 2 invests a jury with the duty of awarding such damages as they may think proportioned to the injury to the claimant resulting from the death which occasions the claim. Although this function is now performed by a Judge in place of a jury, the question remains what is commonly called a jury question, that is to say, a question which is to he answered not in a narrowly legalistic or analytical way but in a commonsense way after giving due weight to careful consideration of all the relevant facts.

It has long been established that only injuries capable of evaluation in monetary terms can found claims for damages under the section (see, for example, Franklin -v- South Eastern Railway Co. 3 H & N 211), but the loss need not be a monetary loss^ a loss of services capable of being valued in pecuniary terms will suffice (Berry -v- Humm & Co. 1915 K.B. 627), as also will the reasonable expectation at the time of death of future financial benefits from the deceased (Taff Vale Railway -v- Jenkins 1913 A.C.1) or, as must follow, the reasonable expectation of services in the future capable of evaluation in monetary terms. But an injury which cannot be so evaluated, such as grief or humiliation, cannot found a claim (Franklin -v- South Eastern Railway Co. supra).

In the present case Mr. and Mrs. Hay's children doubtless suffered grievously in a variety of ways in consequence of their parents' death in the accident which has occasioned this action. They have lost the benefits and happiness it was to be expected they would derive as they grew up from the companionship of their father and mother. They have lost parental love. They have lost the joys of a happy home. These losses cannot be assessed in monetary terms and so cannot support a claim for damages. They have lost the financial support of their father, the breadwinner of the family, and with it they have lost the family home which he provided and maintained for them, including its furnishings and ancillaries, such as the family motor car, and the provision of all those things which he provided for them to maintain them in the style in which that home was conducted. These losses can be evaluated in financial terms and accordingly can support a claim for damages. Although damages cannot be recovered for the loss of their mother's love, they can be recovered for the loss of those services capable of being valued in terms of money which she would have rendered to them as their mother had she survived. About these matters there is no dispute in this action, but there is dispute about how the losses capable of evaluation should be valued.

I shall call the monetary value which it is proper to be put upon these losses capable of valuation the childrens' gross loss. Its ascertainment is not the end of the matter, for it is common ground that, where a dependant of a deceased person has suffered a gross loss of this nature as a result of the deceased's death by a fatal accident, any benefit which the dependant has secured in consequence of the same death may, if it can be valued in money terms, have to be taken in abatement of the gross loss. It was contended that in the present case, had there been no member of their family willing to give the children a home and had they been taken into the care of a local authority and placed with foster parents at the public expense, no damages would have been recoverable because the children would have been provided without expense to them with a substitute home and substitute parental care. As I understand Mr. Turner's argument, he says that either the children could not in these circumstances be shown to have suffered any loss (that is to say, they would not have suffered any injury within the meaning of the section) or their gross loss would be shown to have been wholly abated by gains accruing to them as the result of the accident in consequence of their being taken into the care of a local authority as homeless orphans. The children were not taken into public care. The occasion for that never arose because their maternal grandmother, Mrs. Toone, took them into her home and has ever since cared for them as if they were her own children.

Mr. Turner contends that in these circumstances again the children cannot be shown to have suffered any loss or alternatively that the benefits which have accrued to them in this way must be set off against their gross loss in assessing the damages, if any, recoverable in this action. Mr. McCullough on the other hand contends that these benefits are not such as should be taken in abatement of the gross loss - he says that they are irrelevant to the assessment of the recoverable damages.

The question to be asked can be simply stated. How much worse off financially were the children as the result of their parents' deaths than they would have been if their father and mother had not been killed? It is less easily answered. Four problems have been discussed in the course of the argument. First, did the Judge value the childrens' gross loss in relation to their father rightly? Secondly, did the Judge value the childrens' gross loss in relation to their mother rightly? Thirdly, ought the grandmother's services to be brought into account? And fourthly, was the Judge justified in adopting a multiplier of nine years?

In relation to the first of these questions figures were placed before the Judge analysing the probable expenditure of the Bay family, had Mr. and Mrs. Hay survived, on the basis that Mr. Hay's expendable income would have been of the order of £40 per week, which as was common ground, was the amount of takehome pay which he would have been earning at the date of the trial if his career had not been interrupted by the accident. These figures were broken down into amounts representing how much of this income would have been expended exclusively for the benefit of Mr. Hay, how much of it would have been expended exclusively for the benefit of Mrs. Hay,, how much would have been expended exclusively for the benefit of the children and what balance would have been expended for the general benefit of the family collectively. In this way of a total expendable income of £2,080 per annum £520 was attributed to the father, £420 to the mother, and £496 to the two children, leaving a balance of £644 (which the Judge and everyone else, misled by an arithmetical error in the table of figures "before the 6ourt, assumed to he £673) attributable to expenditure for the family generally. No question now arises with regard to the £496. The learned Judge discounted the figure of £673 by £69 and proceeded upon the basis that the children were worse off in respect of expenditure that would have been made for the benefit of the family generally to the extent of £604, making with the £496 a total sum of £1,100 a year by which the children were worse off in consequence of the loss of their father. Mr. Turner disputes the propriety of dealing with the general family expenditure in this way. He contends that the figure of £674 should have been apportioned to the father, the mother and each of the children in the fractions one-third, one-third, one-sixth and one-sixth respectively. The learned Judge, rightly, in my opinion, regarded this as a wholly unrealistic approach. Each boy, he said, lived in a whole house, not in one-sixth of a house. The children have lost the enjoyment of a home, not of a fraction of a home. The cost of providing a substitute home for the children of a similar quality to the house provided by their parents and capable of accommodating them and a substitute mother would not be greatly less than the cost of their family home would have been had their parents survived. In mu judgment the learned Judge's approach to this part of the problem was realistic and reasonable.

As regards the value to be placed on the mother's services, the only evidence put before the court was that of a Mrs. Baxter, a proprietress of an employment agency. Her evidence was that as at the time of the trial it would have been difficult to find any woman who would go and live in such a house as the family home to look after two children aged five and seven and to perform the duties of a mother at less than £15 per week. Founding himself on this figure, and making an addition in respect of the cost of providing substitute care when the substitute mother would take time off, and making allowance for the cost of National Insurance contributions, the learned Judge arrived at a figure of £1,000 per annum as representing the value of the services which the mother would have provided had she survived.

The learned Judge added the figures of £1,100 and £1,000 together and multiplied the result by nine arriving at a sum of £18,900 from which he deducted £2,500 representing the net values of the estates of the deceased parents including damages recovered under the Law Reform (Miscellaneous Provisions) Act, 1934, thus arriving at a sum of £16,400 which with interest thereon he awarded as damages under the Fatal Accidents Act, 1846.

In my judgment Mr. Turner's argument that in consequence of the fact that the grandmother is voluntarily affording maternal care to the two children they are not shown to have suffered any injury as a result of the loss of their mother cannot be sound. If it were sound, it seems to me that it might equally well be argued that, since their grandmother is also providing them with a home and their keep they have suffered no loss as a result of the death of their father. But it would surely be necessary at least to compare and take into account the comparative qualities of the services and benefits afforded in these respects by the parents in their lifetime and by the grandmother since the parents' death. In my judgment, the proper approach is first to place a valuation upon those losses which the children have suffered in consequence of the death of their parents and then to set against those losses any benefits which it is proper to take into account as benefits that have come to them as the result of the accident. If that is the right approach, Mr. Turner does not dispute the validity of the figures adopted by the learned Judge for the purposes of his calculations.

Mr. McCullough on the other hand says that the Judge in arriving at the figure of £1,000 a year for the mother's services has adopted too low a figure in that he omitted to bring into the calculation anything for the cost of the substitute mother's board and for the provision of other care during an annual holiday for the substitute mother, and on account of his having rounded the total calculated figure down by £99 a- year.

In these respects Mr. McCullough says the Judge's figure of £1,000 fell short by £375) which, when multiplied by an appropriate multiplier, would make a substantial difference to the amount of damages. It is true that the learned Judge did not take these two matters (board and holidays) explicitly into account, but there were other things going the other way which he also did not take explicitly into account, such for example as the amount of assistance and relief which a substitute mother might expect to receive from the childrens' grandparents, both maternal and paternal, and other relations. Moreover, it must be borne in mind that in making such an assessment as this arithmetic cannot provide a means of arriving at an exact amount but merely a method of checking the reasonableness of the proposed award. I see no reason to interfere with the figure of £1,000, and the less so since the Judge by excusably overlooking the arithmetical error to which I have referred may have adopted a slightly larger figure in respect of the loss of the father's support than he would otherwise have done.

I now come to the question whether what Mrs. Toone has done should be taken into account in abatement of the childrens' gross loss. Mr. Turner has contended that the principle can be stated thus: if immediately before the death which occasions a claim there was a reasonable expectation that any benefit which in fact thereafter enures would arise in the event of the death occurring, then this benefit should be taken into account in abatement of any gross loss. Mr. Turner relies in this connection on the evidence of Mrs. Toone to the effect that if her daughter and son-in-law had died at any time from any cause she would have taken their children into her home as their grandmother who loved them and would have wished to care for them. Mr. Turner consequently says that it was wholly predictable that if both Mr. and Mrs. Hay were killed Mrs. Toone would look after the children as if they were her own. What has happened in this respect was accordingly a predictable consequence of the fatality which resulted in the deaths of Mr. and Mrs. Hay, so that the benefits resulting to the children ought to be taken into account in considering the extent of the injury they suffered as a result of the deaths.

Mr. McCullough on the other hand says that the cases establish no clear principle upon which it should be decided whether a benefit accruing to a dependant of a deceased, person after the death should be treated as abating any injury suffered by the dependant as a result of the death. He says that one must look at the words of the section, which are in wide terms, and decide on the facts of the particular case whether the benefit ought fairly to be regarded as abating the injury. He relies strongly upon the remarks of Lord Justice Pearce, as he was then, and of Lord Evershed, M.R. in Jenner -v- Allen West & Co. (1959 1 W.L.R. 554 at 565-568), and upon Daniels -v- Jones (1969 1 W.L.R. 1103).

Mr. McCullough also points out that a strange anomaly would flow from the appellant's argument. If only one parent had been killed in the accident, there could be no doubt that damages would be recoverable under the Fatal Accidents Act, 1846, on behalf of both the surviving parent and the children, whereas, according to the appellant's argument, in the event which happened of both parents being killed no or only very small damages are recoverable. Nobody doubts that, if the dependants inherit property from the deceased, this is a benefit so directly resulting from the death of the deceased that it should be taken into account under the section. On the other hand the gift by a deceased mother's children of one third of her estate to their stepfather in Peacock -v- Amusement Equipment Co.(1954 2 Q.B. 347) was, I think, a benefit of a kind which any juryman would say should not be treated as reducing the injury he had suffered by reason of his wife's death. It was a windfall which, it is true, would not have occurred but for her death. It resulted from an act of generosity on the part of her children subsequent to her death. But there may obviously be many cases in which it is difficult to draw the line - for example, a voluntary pension granted to a dependant after the death, the proceeds of contributions from fellow employees of the deceased, 3, fund similarly provided by friends or relations, a. grant from a disaster fund, a compassionate gift. Similar difficulty may arise where the benefit is not monetary but in the form of services, such as voluntary nursing care. Questions have also arisen in respect of moneys received by the dependant as the result of accident or life insurances and as to the effect on the recoverable damages of the fact or possibility of a widow remarrying, as well when the claimant is the widow herself as where the claimant is a child of hers.

It is not surprising that in cases of such a variety of kinds Judges have used different language in different cases. In some judgments attention has been directed to whether the benefit was to be accurately regarded as resulting from the death. In such cases consideration has been given to causation. In others the court has approached the problem from the point of view of what should be regarded as reasonably to have been expected to follow the event of the death.

For it to be proper to take a post-obit benefit into account in limitation or reduction of an injury suffered by reason of a death, there can be no doubt, I think, that there must be some association between the death and the receipt of the benefit, but the cases clearly establish that this need not be a direct causal link, a causa causans. See for example Head -v- Clarke Chapman (.1956 1 W.L.R. 76), where the remarriage of the widow of the deceased was not the direct consequence of his death, although she could not have remarried had her first husband still been alive. Lord Justice Jenkins there considered that there was "a sufficient causal connection". And this was held to affect the damages recovered by the deceased's children notwithstanding that at that time a stepfather was under no legal obligation to maintain step-children, even if he accepted them into his family.

We have been referred to a considerable number of reported cases decided either under the Fatal Accidents Acts or in personal injuries cases in which questions of this kind or analogous questions have arisen, but I do not think that I need to refer to them. My Lord has already-mentioned a number of them. In my opinion Mr. McCullough is justified in saying that it is not possible to discover from them any established principle by which we should decide whether the benefits which Mrs. Toone has conferred and is conferring upon her grendchildren should be taken into account in the present case. The question remains, in my opinion, a jury question in the sense indicated at the beginning of this judgment, and must be answered accordingly in the way which seems fair in the light of all the circumstances of the case. The learned Judge asked himself this question: "Do the services which Mrs. Toone has already provided and will continue to provide for the two children constitute benefits resulting from the death of their mother?" He answered it in the negative.

To my mind Mrs. Toone's evidence, to which I have already referred, which was given with hindsight, really amounts to no more than this, that in the event of Mr. and Mrs. Bay becoming for any reason unable to provide and care for their children she as the childrens' grandmother would have wished to do her best to fill their parents' place. Whether in any given circumstances she would have been able to do so, or, even if able, would in fact have done so, must be dependent upon what the circumstances might be when the event occurred. Mrs..Toone's health, or her commitments to other dependant members of her family, or her financial or domestic situation might have rendered her incapable of doing as she would have liked to do or some other member of the childrens' family, either on their mother's side or their father's, might have been in a better position to care for them. In my judgment, it is more realistic to say that Mys. Toone's services to her grandchildren resulted from a decision made by her on her own initiative after the accident than that they resulted from Mr. and Mrs. Hay's deaths in the accident. Mr. McCullough put the point neatly and epigrammatically when he said that generosity does not result from death.

I doubt if it is very useful to try to find analogies in cases where the facts were very different, hut it seems to me that Mrs. Toone's services are more similar in quality to the subscriptions of fellow employees (see Baker -v- Dalgleish Stes Shipping Co. (2 K.B. 36I at 369, 380) than to the voluntary pension from the Crown with which that case was concerned or the voluntary pension in Jenner -v-Allen West & Co. (supra). Contributions to a workshop whip-round would, I think, normally be properly attributed to a desire by the contributors, conceived after the death, to relieve the needs of the widow or orphaned children of the dead man, whereas a widow's pension, albeit voluntary, is by its nature fairly obviously related to her dead husband's past services to the payer and is thus connected with matters dating from before the death and is likely to have been associated with the circumstances in which the deceased died.

In Jenner's case, in a passage already cited by my Lord, Lord Justice Pearce contrasted at p.565 a pension provided by the generosity of a third party who was in no way connected with the accident and a pension paid by employers to the widow of an employee who has died in consequence of an accident in the course of his employment.

In my judgment, the learned Judge was fully entitled on the evidence in the present case to answer the question which he asked himself as he did, from which it follows that, in my judgment, he rightly treated Mrs. Toone's care of the children as conferring no benefit on thorn which ought to be taken into account in diminution of the damages recoverable in this action.

I would only add to the discussion of this part of the case that the decision in Mead's case (supra) strikes me as somewhat anomalous. That a claim to damages on behalf of children in respect of their father's death should be liable to abatement on account of the possibility or the event of their mother's contracting a second marriage of which no prospect existed at the date of the death seems to me a strange proposition. It must, I think, have flowed frora the fact that it had become established that the widow's own claim was until 1971 liable to abatement in respect of such prospect of remarriage as she might have. This proceeded on the basis that upon her remarriage any claim in respect of her earlier dependency upon her former husband must have ceased, since she could not claim to be entitled to be treated as dependant upon two husbands at one time. From this it was perhaps not a long step to hold that the children of a dead father could no longer claim for loss of dependancy upon him when they had become de facto dependant upon a stepfather. The position in respect of the widow's claim has now been altered by statute (Law Reform (Miscellaneous Provisions) Act, 1971 S.4) but no similar change has been made in the law in respect of a claim by a widower or a child. See in this connection Jeffrey -v- Smith (1970 R.T.R. 279) and Thompson -v-Price (1973 1 Q.B. 83a). This may be thought to call for consideration by the legislature.

There only remains the question of the multiplier. The learned Judge assumed that each child would remain dependant until the age of l8 1/2, which resulted in an everage period of 15 years' dependancy for each. On this footing he adopted a multiplier of nine. Mr. Turner has suggested that this is too high because, he says, it does not take account of the fact that the boys' need for a substitute mother's care will decrease as they grow older. We cannot tell to what extent, if at all, the Judge took this factor into account. Mr. McCullough says that the boys would be likely to remain dependant until the age of 20 and that consequently the average period of dependancy should be taken at more than 15 years, so that a multiplier of nine is too low. There seems to me to be little, if any, evidence to support this. I should be most unwilling to upset the learned Judge's decision in this Respect, unless he could be shown to have proceeded upon some clearly mistaken basis of fact or erroneous principle. Neither party has persuaded me of this and accordingly I do not think that the learned Judge's decision in this respect should be disturbed.

For these reasons I am of opinion that both this appeal and the cross appeal fail and I agree that each should be dismissed.

LORD JUSTICE ORMROD: The main issue in this appeal is whether or not the fact that Mrs. Toone, the childrens' maternal grandmother, has, voluntarily, assumed the responsibility of bringing them up, should be taken into account in assessing the extent of the injury which they have sustained as a result of the death of their mother.

Leaving aside for the moment the large volume of authority which has been cited to us by counsel on both sides, and looking only at the wooing of the statutory provision which created this cause of action, namely, section 2 of the Fatal Accidents Acts, 1846, which permitted the jury to "give such damages as they may think proportioned to the injury, resulting from such death ....", it would appear that Parliament intended the jury to make a comparison between the position of the dependants before and after the relevant death, and award damages "proportioned" to the difference, excluding of course, benefits acquired after, but independently of the death. This in fact was the interpretation adopted by the courts from the beginning. (See Hicks -v- Newport Abergavenny & Hereford Rail Co. 1857 4 B&S 403, Pym -v- Great Northern Rail Co. I863 4 B&S 396 and many other cases). This principle was reaffirmed by the House of Lords in Davies -v- Powell Duffryn Associated Collieries, Ltd. 1942 A.C. 601, in which Lord Macmillan said at p.609

"... the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of 'damages'.

Lord Wright, at p.612, said

"The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one hand the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death".

This principle, however, has been so seriously eroded by subsequent legislation that, today, little remains of it. Already by the 1908 Act Parliament had excepted suns payable on the death of the deceased under insurance policies. The 1959 Act went much further, excepting a very wide class or classes of benefits, including pensions; and the 1971 Act directed the court, in the case of widows, to ignore all benefits arising from remarriage or the prospect of remarriage. All that is left of the balancing process appears to be benefits arising from the estate of the deceased and, in the case of children, from their step-father's liability to maintain them. Mead -v- Clarke Chapman & Co. Ltd. 1956 1 W.L.R. 76, Reincke -v-Gray 1964 1 W.L.R. 832, and Thompson -v- Price 1973 Q.B. 838. Daniels -v-James I96I 1 W.L.R. 1103, suggests that even in cases whore the benefit arises from the estate, the court will not be unduly influenced by arithmetical calculations. The courts themselves have further restricted the classes of benefit which are to be taken into account by construing such phrases as "resulting from" or "in consequence of" the death, restrictively, (See, for example, Peacock -v- Amusement Equipment Co Ltd. 1954 2 Q.B. 348 and Redland -v- Belfast and County Down Railway 1947 N.I. 167, Voller -v-Dairy Products Ltd. 1962 1 W.L.R. 960 and Rawlinson -v- Babcock & Wilcox Ltd. 1967 1 W.L.R. 481.

In the light of this history, the court ought, in my judgment, to hesitate to extend the balancing principle to classes of benefit which are not directly covered by authority which is binding upon it. Accordingly, I think there is a great deal of weight in Mr. McCullough's primary submission that this court should not, as a matter of policy, bring into account the benefits provided to these children by Mrs. Toone. I accept also his submission that it is impossible to formulate- in general terms any test which will satisfactorily discriminate between benefits to be taken into account and those to be ignored. Attempts to do so using phrases such as "resulting from" or "in consequence of" lead to sterile debates on causation, and have produced results in the reported cases which are difficult, if not impossible, to reconcile one with another. Mr. Turner's suggestion that benefits, of which there can be said to have been a reasonable expectation at the tine of death, should be included in the balancing process, in practice, also fails. It is difficult to see why a benefit from a step-father should reasonably be expected, and a benefit from a fund raised by subscriptions from fellow employees, which is quite a common practice, should not be expected.

I, therefore, conclude that in the present state of the law it would be wrong to bring into account the benefit which these children arc deriving from their grandmother, and that the learned judge was right to exclude it from his calculations. It seems to me, however, to follow from this, to avoid putting an inflated value on the pecuniary loss sustained by the children. Loss of the services of a wife and mother is a grievous loss on any view, but I am not convinced that the current cost of a notional housekeeper is necessarily a reliable guide in this most difficult exercise. No question on this point arises in this appeal but it would have been helpful to have had evidence, if it were available, of the cost of providing a foster hone for these children. So far as the cross-appeal is concerned the learned judge was right, in my judgment, to ignore such items as the notional cost of feeding the notional housekeeper and of providing notional substitutes for her holidays. To include such items would be to make the valuation still more artificial and unreal.

Looking at the learned judge's final figure, and bearing in mind Lord Diplock's observations about annuity values in his speech in Mallett -v- McMonagle. 1970 A.C. 166 at p.177, I would not interfere with the multiplier of 9 which the learned judge decided to apply. I would therefore dismiss the appeal and the cross-appeal.