England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 May 2018

His Honour Judge Freedman:

Introduction

1. On 21 June 2014, at approximately 1am, Mr Jayson Craven ('the Deceased') was tragically killed in a road traffic accident when crossing on foot the A45 Fletchamstead Highway in Coventry. He was struck by an Audi RS being driven by the defendant at a speed of approximately 86mph, the speed limit for this urban road being 40mph. He was killed instantly. Primary liability was conceded at an early stage but contributory negligence remains in issue.
2. Mrs Cathryn Craven, the widow of Jayson Craven ('the claimant'), has brought a claim on behalf of the Deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934 (as amended), and on behalf of herself and her three children as dependants of the Deceased under the Fatal Accidents Act 1976 (as amended).
3. The Deceased was born on 23 May 1966 and was therefore aged 48 years at the date of his death. The claimant was born on 13 November 1967 and is therefore now aged 50 years. The couple's three children are respectively, Remy, born 31 July 1995 and now aged 22 years, Bradley, born 10 October 1999, now aged 18 years, and Louis, born 4 October 2002 and now aged 15 years.
4. At the time of the accident, the Deceased and the claimant were living separately and apart. The claimant had filed a divorce petition. After the Deceased met his death, on 12 August 2014, a Decree Nisi was granted. Notwithstanding the position as at the date of death, it is the claimant's contention that it was likely that there would have been a reconciliation and that the marriage would have been saved. On behalf of the defendant, it is argued that the marriage was doomed and that a divorce, if not inevitable, was highly probable.
5. Plainly, the determination of this issue will have a very significant impact upon the amount of damages that the claimant will be entitled to recover as a dependant of the Deceased. Unsurprisingly, therefore, most of the evidence focused on this principal issue and, equally, submissions made by counsel, albeit that it was not the sole issue in the case.

The Accident

6. During the evening of Friday 20 June 2014, the Deceased had been drinking in a public house in the company of his mistress, Ms Christina Brown. Immediately prior to the accident, they were attempting to flag down a taxi. Ms Brown decided to return to the public house to telephone a taxi. As she did so, the Deceased attempted to cross the A45 but as he walked towards the central reservation, he was struck by the Audi vehicle driven by the defendant. It seems clear that he was crossing from the defendant's nearside to the offside.
7. The A45 runs from the north-west to the south-east. It is a dual carriageway, providing two lanes of travel in each direction, with a central reservation. The Audi was travelling in a south-easterly direction.
8. Mr Peter Sorton, who was jointly instructed on behalf of the parties to consider matters of speed and distance, concluded that on the basis that the Audi was being driven at 86mph and, on the assumption that the Deceased would have taken 5.48 seconds to travel from the footpath to the point of impact, mutual visibility prior to the Deceased stepping into the road would have been 2.32 seconds. At 86mph, the defendant would have travelled 211 metres in the time that the deceased crossed the nearside slip road and nearside lane to the point of impact.

Contributory Negligence

9. It is argued on behalf of the defendant that the Deceased was guilty of contributory negligence in two respects:

i) in failing to use a 'Puffin' pedestrian crossing, which was located 87.25 metres to the south-east of the accident location, and therefore crossing the A45 where it was unsafe to do so; and

ii) in failing to observe the approach of the defendant's vehicle and crossing into its path.

10. As to the first allegation, as a general proposition, it can properly be said that it is prudent for a pedestrian to use a designated crossing point. But, in my judgment, it does not follow that failure to do so constitutes negligence per se. Much will depend upon the construction of the carriageway, the volume of traffic, the time of day, lighting and visibility. Given that this accident occurred at about 1am, it is virtually certain that the volume of traffic would have been light. It is clear from the report from Mr Sorton that the road was well illuminated by street lighting during the hours of darkness. The unobstructed field of view from the nearside kerb where the deceased crossed was approximately 300 metres. In these circumstances, in my judgment, it would not be reasonable to conclude that the deceased failed to take reasonable care for his own safety by not using the Puffin crossing.
11. As to the second allegation, it should be noted that the deceased was intoxicated with 202 milligrams of alcohol in his blood. However, as Mr Grant correctly observes, the mere fact that he was intoxicated with alcohol does not expose him to criticism. On the other hand, his actions are to be judged by reference to those of a sober person. It seems to me that a sober person could not have appreciated that the defendant was travelling at more than twice the speed limit. Indeed, it would be reasonable to assume that any vehicle was travelling broadly within the speed limit. Accordingly, there ought to have been available to the Deceased approximately 12 seconds to cross the southbound carriageway to the central reservation. At a normal walking pace, in fact, it should only have taken approximately 6.5 seconds to reach the central reservation. When analysed in that way, it seems to me that it was not unreasonable for the Deceased to attempt to cross the road when the defendant's vehicle was more than 200 metres away. Accordingly, and even if he was guilty of a degree of inadvertence, in my opinion it did not amount to negligence. Equally, I do not think that he can be properly criticised for avoiding the path of the oncoming vehicle when it became apparent to him that the vehicle was travelling at a fast speed. His "thinking time" would have been a second or two, which would not have permitted him to reach a point of safety.
12. In these circumstances, I am entirely satisfied that this accident was caused wholly by the negligent driving of the defendant.

History of the Marriage

13. The claimant and the Deceased first met in about 1986. The claimant had been briefly married prior to meeting the Deceased, and she had a child, Anthony, who was just 18 months old at the time. After a while, as they grew closer, the claimant followed the deceased to Southampton where he was working. They then lived in London for a while before purchasing a two-bedroom house in Coventry. As noted above, they went on to have three children (and another child who was stillborn). On 30 December 2004, the claimant and the deceased were married in Florida.
14. The deceased was the main "breadwinner". By trade, he was a steel-fixer. Up until approximately 2008, he ran his business through a limited company, Craven Reinforcement Limited. Eventually, that company was placed into liquidation. Subsequently, he set up another company, JCAT Limited, but that enterprise also failed. Before the recession, it is clear that the Deceased was earning substantial sums, in the order of £80,000 per annum.
15. The claimant worked in the travel industry. However, in about 2003, she gave up this work to assist the Deceased in his business. During the recession, she returned to part-time work in the travel industry, working approximately 21 hours per week. She told me that she had made significant sacrifices in terms of her own career in order to support the Deceased in his business, and also to look after the children.
16. Over time, they jointly acquired three properties: the matrimonial home at 353 Green Lane, where they lived, as well as two buy-to-let properties. The combination of the deceased's earnings and the rental income from these two properties enabled them to have a good standard of living, with a particular emphasis on exciting holidays in far-flung places.
17. Up until the time when problems crept into the marriage, the claimant describes a very happy family life. I have no doubt that this was indeed a loving family until marital issues surfaced.

Breakdown of Marriage

18. The claimant ascribes the initial cause of the difficulties within the marriage to the problems which they had with their daughter Remy. At or about the age of 15, which would have been in or around 2010, Remy started associating with a 19-year-old man who had a drug habit. He was also violent, and abused Remy. It appears that he exerted considerable influence over Remy, forcing her to steal. She in fact stole her mother's jewellery. The police became involved and, ultimately, Remy was sentenced to custody in a Young Offender Institution.
19. At the age of 16, Remy left home and went to Skegness with her boyfriend. The claimant feared that he was grooming her for prostitution. The claimant duly contacted the police, who arrested Remy and brought her home. It seems, however, that problems persisted with Remy's behaviour.
20. It is clear, therefore, that Remy was a source of major anxiety and concern to her parents. But that was only part of the problem. The Claimant told me how she and the Deceased had a very different approach to Remy's troublesome behaviour. Whereas the claimant was confrontational and interventionist, it seems that the deceased had a much more laissez-faire approach. According to the claimant, his attitude was that at the age of 16, Remy should be allowed to live her life as she wished. Generally, it was clear that the Claimant felt unsupported by the deceased in trying to parent Remy. Conflict ensued. The claimant describes Remy as seeking support from her father and she herself feeling "isolated and under constant attack". In her witness statement, she says, "It was this lack of support from Jayson that began to pull us apart after years of living together".
21. On the advice of the Criminal Offending Youth Team, in or about 2012 both the deceased and the claimant began attending Relate. There is scant information about what occurred during the counselling sessions but the claimant was adamant that it was primarily concerned with the parenting of Remy. The only record of attendance at Relate is in the GP records, in an entry dated 27 January 2014 where is it noted that "has been attending Relate for 18 months. Initial sessions with her husband and then separately…". It is evident that as from the middle of 2012, this marriage was in some difficulty.
22. It is also clear that at or about this time, the claimant ceased to engage in sexual relations with the deceased. She said that she no longer could feel intimate with her husband. This was unquestionably a source of significant conflict because the deceased wanted to continue marital relations and he could not understand why the claimant had withdrawn from the sexual side of the marriage. She told me that he saw the lack of sexual relations as an indication that she was no longer interested in him. I infer that there had been a lack of sexual intimacy for some considerable time before the claimant sought legal advice.
23. It was on 16 November 2013 that the claimant first sought advice about the breakup of her marriage, from a solicitor, by the name of Christopher Holland, a partner at Angels Solicitors. The attendance note for that initial meeting strongly suggests that, by this time, the claimant had decided she wanted a divorce even though the deceased was not of the same mind. It was also recorded that whilst they were still living together, they were separated. Later that month, on 27 November, the claimant had further discussions with Mr Holland about a divorce and about financial issues. By the beginning of January, the state of the marriage had deteriorated yet further with the deceased drinking heavily and being verbally abusive. At some time in January 2014, the claimant discovered that the deceased was having an affair. In the same month, the claimant contacted the domestic abuse helpline and they helped her to obtain a non-molestation order which was granted on 28 January 2014. At this time, the claimant moved out of the matrimonial home with the two younger children and went to live in one of the buy to let properties. To compound matters, it appears that at this time the deceased stopped paying the household bills, in particular the mortgage.
24. On 27 February 2014, the claimant filed for divorce citing, inter alia, the deceased's failure to provide appropriate care for the children and his behaviour which involved excessive amounts of alcohol leading to verbal abuse and domestic violence. Although it is said that the deceased did not want a divorce, he did not seek to oppose it. He declined to attend for mediation. In mid-May, the parties agreed to put the matrimonial home on the market. At this time, there were concerns that the bank would re-possess the property because of non-payment of the mortgage. The Decree Nisi was then pronounced approximately 6 weeks after the fatal accident.

The Legal Test

25. Until the decision of the House of Lords in Davies v Taylor [1974] AC 207, it was thought that the legal test, in these circumstances, is whether the claimant is able to establish that it was more likely than not (i.e. on the balance of probabilities) that the parties would have reconciled. However, in Davies the House of Lords held that the test for a claim by a dependant under the Fatal Accidents Act was whether there was a reasonable expectation of pecuniary benefit from the deceased, which, in the case of a separated couple, meant that the claimant had to show some significant chance that there would have been a reconciliation. Significant chance or prospect was to be contrasted with mere speculative possibility. In the event that the court concludes that there was a substantial possibility of a resumption of cohabitation, then the next stage is to assess, in percentage terms, the prospect of such reconciliation. Such percentage then falls to be applied to the amount of dependency which would otherwise have been awarded to the claimant.

The Claimant's Case

26. The starting point, as it seems to me, is to look at the way in which the matter has been pleaded. At paragraph 8 of the updated and amended schedule of loss, it is averred that:

"At the time of his death they were in a 'cooling-off period' between Decree Nisi pronouncement and Decree Absolute during which period they would have needed to take legal advice about the financial implications of going through with the divorce. Neither had received that advice. The claimant instructed a solicitor, Mr Holland, to process the divorce. Whilst Mr Holland gave her some initial advice pertaining to the financial aspect of the divorce process, and she was advised that in due course she and the Deceased would need to complete a Form E statement providing full and frank disclosure of finances, at no point before the Deceased's death had she received any advice about the likely complications of her spousal maintenance claim. As part of these proceedings, she has now received such advice through reading the expert report of Ms Syme. Now that the claimant has apprised herself of the sort of advice that she would have received, the divorce would have been devastating to her financial interests and she would have opted to save the marriage and reconcile with the Deceased, which was his wish before he died."

27. At paragraph 25:

"The substance of that advice (that is the opinion of Miss Suzanne Syme of Counsel) had a sobering effect on the claimant about the financial implications of her having followed through with the divorce. In essence she is likely to have retained the family home at 353 Green Lane free of any mortgage, on condition of her giving up her own equitable interests in two rental properties they owned jointly (71 Dudley Street and 74 Kenpas Highway), subject to mortgages. In addition, she could have expected an order that the Deceased pay her maintenance limited to c. £750-£1000 pm until Louis' 18^th birthday in October 2020, whereupon all maintenance would likely have stopped. She would at that stage have been aged 52. She would have no private pension and would have been dependent solely on what she could earn herself."

28. The claimant also had the opportunity to consider an expert opinion from another counsel, Ms Teacher, obtained by the defendant. Her view was that it was likely that all three properties would have been sold and that the claimant would have been granted a share of the total liquid capital of c. £326,000.00 to enable her to buy alternative accommodation. She considered that spousal maintenance would have been in the order of £700 per month until Louis' 18^th birthday but the claimant would have been entitled to substantial Working Tax Credits amounting to c. £8,600 per annum. But, in relation to tax credits, I accept Mr Grant's submission that by August 2019 any entitlement to Working Tax Credit would have ceased.
29. To return to the Schedule of Loss, at paragraph 29, the position is summarised in this way:

"The claimant is quite satisfied that once furnished with this Advice she would have done everything in her power to reconcile with the Deceased and to terminate the divorce proceedings. The cooling-off period between the Decree Nisi and Decree Absolute stages in divorce proceedings is specifically designed to provide angry couples with time to reflect on the financial reality of their decision before they become irretrievably committed to acting on them."

30. In her witness statement, the claimant says this:

"…I can honestly say that had I received this advice back in 2014, whilst in the process of a matrimonial claim, I would have thought long and hard about whether to proceed with divorce and ultimately would have changed my mind. As I have said, at the time, things were very raw. But I know, now that I have spoken to people, that Jason still loved me and I am sure that he would have wanted us to make the marriage work. After receiving financial advice before the Decree Absolute, I believe that I would have done everything in my power to look to reconcile with Jason and save the marriage: I think we would have owed it to ourselves and to our family. I feel confident that Jason would have wanted this too, having since spoken with both friends and family."

31. As evidence of the fact that the deceased still loved her, the claimant relies on a text message which he sent to her in response to her sending him birthday wishes to the effect that he still loved her and missed the family. In evidence, the claimant also made reference to a chance meeting with the deceased at a football match in April 2014. He told her that he did not want a divorce and that he still loved her.
32. Additionally, on behalf of the claimant, various witnesses were called to confirm that the deceased still loved the claimant. Mr Bill Irvine recalled a telephone conversation with the deceased, during the course of which, he confirmed that he still loved the claimant. He also recalled the deceased asking him whether it was worthwhile trying to reconcile and Mr Irvine said that of course it was worth trying. Some other friends, Shaun and Jacqueline Judge, were able to give evidence about how happy their relationship generally had been and it was their view that they would have sorted out their differences.
33. In evidence, the claimant told me that she still loved the deceased, albeit that they were living separately. She described how everything had happened in a blur in the latter part of 2013 and the early part of 2014; and that she was acting in blind panic. She says that she was an emotional wreck and had suffered substantial weight loss. The inference which I was invited to draw was that once she, as it were, came to her senses and considered matters calmly, she would have decided to try and save the marriage.
34. It is not suggested that it was certain that the marriage would be retrieved. Mr Grant postulates that there was an 80 per cent chance; and submits that this is the percentage which should be applied to whatever is awarded by way of loss of dependency.

The Defendant's Case

35. The defendant's case can be put succinctly. In relation to the marriage itself, it is said that all of the evidence points to the position having been reached whereby the claimant and the deceased were no longer able to live together; and that such would have remained the position. Mr Curtis submits that the allegations made by the claimant in the divorce proceedings make it abundantly clear that she had no intention of resuming cohabitation with the deceased.
36. Mr Curtis also relies upon the fact that, at the time of the accident, the Deceased was having an affair with Christina Brown. Further, he submits that there is no evidence that the Deceased had taken any active steps to retrieve the marriage. To the contrary, it is argued that the evidence pointed towards a final breakdown, with the matrimonial home being placed on the open market and the Deceased refusing to make a financial contribution.
37. As to the contention that the claimant would have re-considered matters once she appreciated the financial implications of a divorce, Mr Curtis points out that, in actual fact, at least in the short term, the claimant's income would not have been appreciably less than the income which they enjoyed as a couple once the mortgage had been paid off. It is unnecessary to analyse, in detail, the figures but the claimant did accept in the course of cross-examination that, absent any significant increase in the Deceased's earnings, there would not have been a material difference between the net income enjoyed by the family when the parties were living together and her likely net income post-divorce.
38. As to the future, when the claimant would not longer be entitled to working tax credits, Mr Curtis argues that she would have been able to make good the shortfall by increasing her hours of work in the travel industry from part-time to full time. The same point is made when the Deceased would no longer have been paying maintenance as from 2020. Of course, by that time, Bradley would be 20 years of age and with an earning capacity of his own unless, of course, he was still studying. The other point made by Mr Curtis is that it is improbable that, at the time of the divorce proceedings, the claimant was going to take into account her financial situation five years hence.
39. It is, therefore, the defendant's case that there was no more than a speculative chance of this marriage surviving.

My Findings

40. I remind myself that it is my task to analyse the evidence objectively and dispassionately. Whilst, of course, I can, and do have regard to what the Claimant now says about whether she would have gone through with a divorce, of necessity, I must closely scrutinise what was happening within the marriage at the material time.
41. At the outset, I recognise, of course, that the claimant and the Deceased had enjoyed a long relationship of nearly 30 years' duration and a marriage of some 9 years. It must also be acknowledged that the evidence demonstrates that, for the majority of the time, they had a very happy relationship centring around family life and their three children as well as the claimant's first child, Anthony, from her first marriage. They enjoyed a good standard of living, particularly in the years before the recession in the construction industry; and they were able to take the family on expensive holidays abroad.
42. I also find as a fact that there still existed love and affection between the Deceased and the claimant, even when they were separated as from the beginning of 2014. The Deceased's response to the text from the claimant sending birthday wishes was illustrative of how he felt about her and the family. I also accept what the claimant told me in evidence, namely that she still loved the Deceased despite all that had happened in their marriage. Her Victim Impact Statement is testament to how she felt about the Deceased. Unsurprisingly, the whole family was devastated by his untimely death.
43. However, although she still loved him, it is clear that she no longer felt able or wanted to live in the same household as the Deceased. I conclude that this marriage had been in trouble for some considerable period of time prior to the separation. The entry in the GP records makes it clear that the claimant and the Deceased had been attending Relate since the middle of 2012. I accept that the referral to Relate was occasioned by the problems which Remy presented as a teenager out of control. But it is plain that there was very considerable conflict between the claimant and the Deceased as to how best to deal with Remy's behaviour; whilst the Deceased appears to have been relaxed and relatively unconcerned, the claimant was very interventionist. The claimant conceded that this created a serious rift between them. She felt unsupported by her husband and, as she herself said in evidence, she was no longer able or willing to engage in sexual relations with him. Reading her witness statement, I gain the impression that there had been no physical intimacy for a considerable period of time prior to the separation. This, of course, had a very negative impact on the Deceased, who felt unwanted and unloved. This inevitably gave rise to further conflict.
44. The evidence is clear that by November 2013, the claimant had had enough: the attendance note written by Mr Holland dated 16 November 2013 states unequivocally "she has made up her mind". It seems to me that at no stage thereafter did the claimant retreat from that position.
45. To the contrary, her resolve to terminate this marriage hardened. The telephone attendance note written by Mr Holland dated 2 January 2014 demonstrates how matters had deteriorated over the previous few weeks. The claimant informed Mr Holland that the Deceased had been drinking heavily, and that he had been verbally abusive towards her. He had also assaulted Remy and she had had to call the police. She also complained that the Deceased was coming into the matrimonial home in the early hours of the morning, waking everybody up and being verbally abusive in front of the children. This resulted in her contacting the domestic abuse helpline and then obtaining a non-molestation order.
46. Coupled with these matters, in or about mid-January 2014, the claimant discovered that the Deceased was having an affair: that can only have served further to strengthen her resolve. Indeed, in the telephone attendance note dated 27 January 2014, Mr Holland records that: "she also wants to progress the divorce ASAP". She wanted the Deceased to move out of the matrimonial home but he refused to do so and, accordingly, she felt that she had no alternative but to move, with the two younger children, to one of the rented properties.
47. Once she had moved out of the matrimonial home, over the ensuing five months there was very little contact between the claimant and the Deceased. It seems to me that neither party took any active steps to see if some form of reconciliation could be effected. Although the Deceased professed his love for the claimant and, at least on one occasion, asked her to re-consider, he did not do anything of a practical nature to try to win her back. To the contrary, he continued with his affair and, importantly in my judgment, he chose not to defend the divorce. In addition, he refused to meet the mortgage payments. He must have appreciated that this would only exacerbate the situation. As an act of finality, as it seems to me, the Deceased then agreed with the claimant that the matrimonial home should be placed on the open market.
48. Notwithstanding the situation that existed as at the time of this tragic accident, I am nevertheless asked to accept that, over the next couple of months or so, the claimant would have re-considered matters and sought to retrieve the marriage. This is put primarily on the basis that, once she had appreciated the financial implications of the divorce, she would have decided not to proceed. As to this, in the first instance, I am unable to accept that she did not reflect upon financial matters prior to the divorce petition being filed. Although she may not have received detailed advice from Mr Holland, it is clear that there were discussions about what would be likely to happen to the matrimonial home and the buy-to-let properties in the event of the divorce proceeding. It is instructive, for example, to look at the attendance note dated 27 November 2013 recording a discussion about the financial claims that the claimant could make and how the assets might be distributed between the parties. Furthermore, and although I accept that the claimant was under some strain and pressure at the time, there is no doubt that she is an intelligent lady who had an understanding, at least in broad terms, of the financial implications of a divorce.
49. In any event, and even if she had received the advice given subsequently by Ms Syme or Ms Teacher, I am wholly unpersuaded that this would have caused her to change her mind. I accept the submission of Mr Curtis that on closer analysis, at least in the short term, she would not have been significantly worse off than if she had remained married. Whilst it is true that she would have lost the benefit of tax credits and maintenance after a few years, I think it very unlikely that the claimant would have focused on this, or for it to have been of such concern to cause her to re-think matters. In short, her potential financial circumstances five years down the line were, in my view, unlikely to have affected her thinking about the imminent divorce. In any event, the reality is that she knew that she had an earning capacity beyond what she was earning at that time: if she chose to work full time, she could have earned in the order of £25,000.
50. Accordingly, I reject the submission that if the claimant had received more detailed financial advice during the so-called 'cooling off period' between Decree Nisi and Decree Absolute she would, or might have, decided not to proceed with the divorce. It seems to me that if she was going to have concerns about her financial predicament such as to cause her to waver about a divorce, such would have emerged during her discussions with Mr Holland. It is clear that at no point did she discuss with Mr Holland whether she would be able to afford to divorce the Deceased.
51. Equally, I do not accept the proposition that the claimant was acting in blind panic. She had made the decision to divorce in November 2013, before the Deceased had become abusive and violent; and before he embarked upon an affair. In the months following the separation, she had time to reflect upon whether she really wanted a divorce. She knew, or believed, that the Deceased did not want a divorce but she was apparently unmoved by his pleas to reconcile. She will have appreciated the potentially adverse effect on the children of a divorce but, again, this did not cause her to re-consider. It seems to me that Miranda Walmington's description of the claimant as being "very strong and determined as well as independent" is accurate: she was determined to proceed with the divorce and, would have done so, whatever advice she received, whether financial or otherwise.
52. In these circumstances, regrettably, I am unable to find that there was a significant chance that, but for his death, the Deceased and the claimant would have been reconciled. For the reasons set out above, my view is that the chances of this marriage being saved and not proceeding to a Decree Absolute were no more than a speculative possibility.

Quantum

53. It follows from the above that the claimant's claim for the loss of financial dependency is necessarily limited to what she would have received by way of maintenance payments. Although there is not a lot of difference in the figures provided respectively by Ms Syme and Ms Teacher, in fairness to the claimant, I propose to adopt the figures set out in Ms Syme's report; that is, £10,500 per annum. There will be both past and future loss.
54. As to the remaining heads of damage, there is no dispute about the Bereavement Award in the sum of £12,980, the cost of a memorial stone in the sum of £1,339, and funeral expenses in the sum of £4,996.
55. There is, however, a dispute as to whether the Deceased's children should be entitled to an award for the loss of intangible benefits. The defendant seeks to rely upon the decision of Garnham J in Mosson v Espousal (London) Ltd [2015] EWHC 53 (QB). That was a claim brought by a widow arising out of the death of her husband due to mesothelioma. There was a claim for loss of intangible benefits on behalf of the widow, which was put in this way: "additional value and convenience in having someone who is willing and able to provide these services out of love and affection rather than bringing in outside help and contractors". It was argued that it was not a valid head of claim. Garnham J so found, on the basis that he had already made an award in respect of the services the deceased would have provided his family had he not contracted mesothelioma; and, further, that what in effect she was seeking was financial compensation for the inconvenience of having to pay someone to do what her husband would have done voluntarily.
56. In my judgment, a claim for loss of intangible benefits on behalf of the children falls into an entirely different category and is to be distinguished from the type of claim made in Mosson. In Beesley v New Century Group Ltd [2008] EWHC 3033 (QB), Hamblen J (as he then was) reviewed the authorities, including Regan v Williamson [1976] 1 WLR R305 and Hay v Hughes [1975] QB 790, and concluded that in certain circumstances a separate award can and should be made for loss of intangible benefits, albeit at a modest level. Similar reasoning appears to have been adopted in the case of Hayes v South East Coast Ambulance Service NHS Foundation Trust [2015] EWHC 18 (QB) where the sum of £15,000 for loss of intangible benefits from a father was awarded in respect of three boys, albeit that this appears to have been subject to agreement.
57. At all events, I am satisfied that the line of cases starting with Hay in 1975 permit the Court to make an award for loss of intangible benefits where children have been denied the benefit of love and affection which their father would otherwise have bestowed upon them. Experience suggests that such awards are commonplace. In my judgment, a sum of £5,000 for each child is appropriate, making a total of £15,000.
58. As to the claim for additional sums to reflect gifts which the Deceased might have made to the children, and any contributions to weddings, these seem to me to be too speculative and remote. Accordingly, I do not make a further, additional award.

Conclusion

59. I am most grateful to Counsel for agreeing Quantum, after they had sight of a draft of this Judgment. In the event, there is to be Judgment for the Claimant in the sum of £101,514.18 (inclusive of interest).