Ana Belen Cacheda Chouza (Personal Representative of Mr Albino Otero Rodriguez, Deceased) v Artur Mendonca Lopes Martins
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 22 June 2021 |
| Neutral Citation | [2021] EWHC 1669 (QB) |
| Docket Number | Case No: QB-2018-005911 |
| Court | Queen's Bench Division |
| Date | 22 June 2021 |
[2021] EWHC 1669 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Martin Spencer
Case No: QB-2018-005911
Mr John Paul Swoboda (instructed by DWF Law LLP) for the Claimant
Mr Mark James (instructed by Weightmans LLP) for the Defendants
Hearing dates: 14, 15, 16, 26, 27 and 29 April 2021
On Sunday, 15 February 2015 at about 06:45 hours, the deceased, Albino Otero Rodriguez, to whom I shall refer either as Albino or the deceased, was killed when a collision occurred on the A511 near Burton-on-Trent between a Nissan Primstar mini-bus in which the deceased was a front seat passenger and a Scania articulated goods vehicle being driven on the wrong side of the road. The driver of the Scania vehicle was convicted of causing death by careless driving and liability has not been in dispute. This action concerns the quantification of loss sustained by the estate of the deceased pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and the value of the dependency pursuant to the Fatal Accidents Act 1976.
The Deceased
The deceased was born on 16 January 1965. The claimant, Ana Belen Cacheda Chouza, to whom I shall refer as Mrs Cacheda, was born on 13 August 1968 and in 1984, when she was 16 years old, she formed a relationship with the deceased which was to last the rest of their lives. On 22 May 1985, Mrs Cacheda gave birth to Alberto and on 21 December 1985 she and Albino were married. They had 3 further children, David born on 22 September 1989, Lucas born on 30 August 1994 and Ana-Belen born on 1 January 2004. By all accounts, Albino doted on his daughter but that is not to say that he did not have a close and loving relationship with all four of his children: he clearly did. Thus, in his witness statement, David said: “I would say that my father was dedicated to me and the rest of our family – he was particularly close to my younger sister.”
In 1988, the deceased set up a business, Excavaciones Sanxenxo S.L. (“Excavaciones”) together with a business partner, although the deceased was the driving force behind the business. For many years prior to his death he had been running the business on his own. Excavaciones owned a fleet of HGVs and a quantity of construction plant and provided associated services, leasing out the construction plant (such as excavators and backhoe loaders) and the vehicles together with drivers and operators. The business was successful so that, for example, in 2008 it generated sales of €594,896. However, the profit generated was relatively small. Attached to the expert forensic accountancy report of Ms Amanda Fyffe at Schedule 3 is a summary of the profit and loss accounts for Excavaciones for the years 2008 to 2015. In 2008, the net profit before wages and taxation was €139,503 but after personnel expenses had been taken into account, that is wages and salaries and social security payments in connection therewith, the profit before taxes was only €1,391. David Otero told me that the business was hit hard by the global financial crisis in 2008 which affected the whole of the construction industry in Spain. This is reflected in the summary of the profit and loss accounts which shows that from 2009 the turnover of the company reduced substantially and the company had fallen into deficit with operating losses of over €31,000 in 2009, over €58,000 in 2010, over €70,000 in 2011 and over €41,000 in 2012. At Schedule 4 to Ms Fyffe's report is a summary of the balance sheets for Excavaciones in the same years and this shows the substantial debts owed by the company, with liabilities of €373,606 in 2012. It seems clear that the company was insolvent.
The deceased did not, however, wind up the company. Its main assets were the vehicles and construction plant which, upon winding up, would be sold to clear the debt so far as possible. However, there was a problem: the company was the holder of an authorisation issued by the Sanxenxo Municipality dated 21 January 2008 (“the transport licence”) covering the use of the vehicles and construction plant, but by Article 26 of Order FOM/2185/2008, under Spanish Law if a transferor wished a transferee of the vehicles to have the benefit of the transport licence, it was necessary to have been the holder of the transport licence for at least 10 years. I understand that the vehicles and equipment are significantly more valuable if transferred with the benefit of a transport licence. Thus, I was told by David Otero that his father planned to wind up Excavaciones in 2018 by when the company would have been the holder of the transport licence for 10 years and when, accordingly, the assets of the company would realise their full value. David Otero said in his witness statement that the word he would use to describe his father would be “honourable”. He described his father as being very well liked and respected in their town as shown by the attendance at the deceased's funeral numbering over 2,000 people and including the mayor and other politicians. I was told that the deceased, being honourable, wanted to pay off the external debts of the company leaving only the family as creditors and, to do this, he needed to keep the company going and preserve its assets, these being by 2018 six items of construction plant and two lorries, until 2018 when the transport licences could be transferred with the equipment.
On 1 October 2012, the deceased, acting through Excavaciones, entered into a contract with Andeona Solucions SL (“Andeona”), a company working internationally in the construction industry, to provide his services as both a “palista” which I understand to mean the operator of construction plant such as excavators and backhoe loaders, and also as a lorry driver, transporting material from the central headquarters of Andeona to the different works and back. The plant and transport for use by the deceased were to be provided by Andeona. The price of the contract was agreed to be €250 per day net of Value Added Tax. Thereafter, the income and turnover for Excavaciones was, as I understand it, principally generated by the provision of the deceased's services to Andeona. This meant that the other activities of Excavaciones could cease, or at least reduce, and although the company continued to operate at a loss, this was much reduced, particularly because the wage bill was reduced with the laying-off of workers, namely those who had been operating the six items of construction plant and driving the two lorries. David Otero told me that it was necessary to maintain the plant and lorries in good condition until they could be sold and that it was therefore necessary for the company to continue to incur expenses on fuel and maintenance.
From October 2012, the deceased's work for Andeona took him not just around Spain but also abroad to Romania, Italy and eventually England. The claimant, Mrs Cacheda, said in evidence that the pattern was that the deceased would work for two months abroad and then come home for two to three weeks. When at home, she said he would only do a little work on company business because there was not much work available. Ms Veronica Miguez Magdalena, the managing director of Grupo Hedomin of which Andeona is a part, told the court that whilst working abroad, the deceased would commonly work six days out of seven and had all his expenses paid including his hotel on full board. The company would also pay for his hotel on any days he was away but not working. In her report, Ms Fyffe uses the turnover of Excavaciones for 2014 of €67,708 to calculate that, on the basis this income was wholly generated by the deceased's work for Andeona, this represents 271 days worked at €250 per day, and this forms a principal component of the dependency claim. I consider from paragraph 28 below whether this is a reasonable basis upon which to proceed.
When at home, the deceased was described by his wife as the ‘lynchpin’ of the family, undertaking all DIY, maintenance and other tasks. She said that he would take care of all the plumbing and electrics at home so that they never had the need for professionals and if there was something particularly complex, there was always someone in the family who could lend a hand. There was also a substantial parcel of 1900 m 2 of land adjoining the house which was used as a garden and to grow vegetables, keep chickens and a pig. Mrs Cacheda said that her husband did most of the work in the garden: they would grow tomatoes, peppers, leeks, onions, spinach, strawberries, potatoes and other vegetables and there was also an orchard with orange, lemon and apple trees. In addition, they owned 3000 m 2 of land close to the home in four separate parcels which was not cultivated but just grassed. Mrs Cacheda said that her husband would tend to this land by cutting the grass. The character of the deceased portrayed by Mrs Cacheda and the other members of the family was of a man who worked very hard, both when away working and at home, who had little leisure time, and who was dedicated to his family. She said:
“Albino was at his happiest when sat at our kitchen table, with a glass of wine and preparing barbecue for family and friends.”
She described him as frugal, spending very little on himself, even to the extent of wearing his son's old clothes...
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