Arnup v MW White Ltd

JurisdictionEngland & Wales
JudgeHIS HONOUR JUDGE RICHARD SEYMOUR Q.C.
Judgment Date27 March 2007
Neutral Citation[2007] EWHC 601 (QB)
CourtQueen's Bench Division
Date27 March 2007
Docket NumberCase No: 6CB01056

[2007] EWHC 601 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN's BENCH DIVISION

Before

His Honour Judge Richard Seymour Q.c.

(Sitting as a Judge of the High Court)

Case No: 6CB01056

Between
(1) Melanie Jane Arnup (as Administratrix of the Estate of Kevin Arnup deceased and on her own behalf)
(2) Jason John Arnup
Claimants
and
M.W. White Limited
Defendant

Robert Weir (instructed by Kester Cunningham John) for the Claimants

Christopher Purchas Q.C. (instructed by Fox Hartley) for the Defendant

Hearing dates: 14 and 15 March 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C. HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

Introduction

1

This action arises out of the death on 22 December 2003 of Mr. Kevin Arnup. He was killed during the course of his employment by the defendant, M.W. White Ltd. (“the Company”). The business of the Company is the recycling of waste paper. At the time of his death Mr. Kevin Arnup was employed as the yard foreman at the premises of the Company in Station Road, Ketteringham, Norwich, Norfolk. For the purposes of its business the Company operated at those premises a piece of machinery called a paper hogger. On 22 December 2003 the paper hogger became jammed. Mr. Kevin Arnup was working at the time the paper hogger became jammed with his son, the second claimant, Mr. Jason Arnup. The pair of them climbed into the paper hogger to try to remove the blockage. While they were inside the paper hogger, the machine started up. Mr. Jason Arnup was able to escape from the machine without suffering any physical damage. His father was crushed to death.

2

Mr. Kevin Arnup was born on 23 March 1967. Thus he was 36 years of age at the date of his death. He was survived by his wife, Mrs. Melanie Arnup, as well as by his son, Mr. Jason Arnup. Mr. Jason Arnup was born on 28 July 1988, so he was fifteen years of age at the time of his father's death. He is now eighteen. Mr. and Mrs. Kevin Arnup had two other children, who were both adult by the date of death of their father.

3

Mr. Kevin Arnup did not leave a will. Letters of administration in respect of his estate were granted to Mrs. Arnup on 16 March 2006.

4

In this action Mrs. Arnup claims damages against the Company in respect of the death of her husband pursuant to the provisions of Law Reform (Miscellaneous Provisions) Act 1934 and Fatal Accidents Act 1976 as amended. In addition Mr. Jason Arnup claimed damages in respect of the consequences for him of the incident in which his father died. The claim of Mr. Jason Arnup has been settled.

5

Liability in respect of the death of Mr. Kevin Arnup is not in issue. There is a dispute as to the extent to which Mr. Kevin Arnup was contributorily negligent in relation to his death. This judgment is not concerned with that issue, which will be tried hereafter if the parties are not able to reach agreement about it.

6

An important issue in this action in relation to the claims founded on the death of Mr. Kevin Arnup is the amount of the damages which should be awarded. That issue seems to focus on what account, if any, in the assessment of the damages should be taken of two payments made to Mrs. Arnup. The first of these payments was an amount of £129,600 paid to Mrs. Arnup on 16 January 2004. That amount was described in the receipt in respect of it which Mrs. Arnup was asked to sign, and did sign, as a payment “in respect of M W White death benefit scheme”. The second amount was of £100,000 paid to Mrs. Arnup on 16 February 2004. In the receipt which Mrs. Arnup was asked to sign, and did sign, in relation to that payment it was described as “in respect of benefits received from M W White Employee Benefit Trust”.

7

The position adopted on behalf of the Company was that the two amounts to which I have referred should be brought into account in its favour in the assessment of the damages due in respect of the death of Mr. Arnup. That position was contested on behalf of Mrs. Arnup. Her case was that the bringing of the amounts in question into account was prevented by the provisions of Fatal Accidents Act 1976 s.4, as substituted by Administration of Justice Act 1982 s.3(1). Fatal Accidents Act 1976 s.4, as so substituted, is in these terms:—

“In assessing damages in respect of a person's death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.”

8

I shall come to explain the arguments advanced on behalf of each of the Company and Mrs. Arnup in support of their respective positions. However, in the light of those positions District Judge Pelly ordered on 21 November 2006 that there be tried a preliminary issue,

“to determine whether the following payments should be set off against the claims made for loss of dependency as contended by the defendant in its counter schedule:

(i) Payment of £129,600 from the M W White Limited Death Benefit Scheme.

(ii) Payment of £100,000 from the M W White Limited Employee Benefit Trust.”

9

It has fallen to me to try that issue, and it is with that issue that this judgment is concerned.

10

Before coming to the arguments adduced on that question it is appropriate to explain what was the M. W. White Limited Death Benefit Scheme and what was the M W White Limited Employee Benefit Trust.

The M.W. White Limited Death Benefit Scheme and the M.W. White Limited Employee Benefit Trust

11

Mr. Kevin Arnup was employed by the Company from 20 May 1996 until the date of his death.

12

By a deed (“the Deed”) executed on 5 November 1998 the Company, called in the Deed “the Principal Employer”, declared that it was establishing with effect from 1 December 1998 a scheme to be named “M.W. White Death in Service Benefit”. In this judgment I shall refer to that scheme as “the Scheme”.

13

For the purposes of the Deed those referred to as “Members” were said, in clause 1, to be “Such employees and/or directors who may from time to time be admitted to membership of the Scheme”.

14

By clause 2 of the Deed provision was made as follows:—

“The benefits of the Scheme which are summarised in a written announcement which has been or will be given to all Members of the Scheme, shall be secured by a policy or policies (“the Policy”) effected in the name of the Principal Employer with Legal and General Assurance Society Limited or any other insurance company as described in Section 659B of the Income and Corporation Taxes Act 1988 (the “Insurer”).”

In this judgment I shall call what was described in clause 2 of the Deed “the Policy”“the Death in Service Policy”.

15

By clause 3 of the Deed it was provided that:—

“The Scheme shall be administered in accordance with this Declaration and the Rules of the Scheme (“the Rules”). The Principal Employer shall be the trustees of the Scheme and shall hold the Policy upon trust for the purposes of the Scheme and shall be the Administrator for the purposes of the Act.”

16

Rules governing the Scheme (“the Scheme Rules”) were adopted by the Company on 22 November 1999.

17

The Scheme Rules included:—

3. Payment of Life Assurance Benefit

(a) The Life Assurance Benefit described in Appendix A shall, subject to the provisions of Rule 12 and Appendix B, be payable as a lump sum in accordance with Rule 4, on the death of an Insured Member before Benefit Termination Date.

….

4. Application of Life Assurance Benefit at Principal Employer's Discretion

(a) In respect of any lump sum benefit which is expressed to be payable in accordance with this Rule the Principal Employer shall have power within the period of two years after the Insured Member's death (but not later than one day prior to the expiry of the perpetuity period applicable to the Scheme in accordance with the Declaration of Trust if that day shall be prior to the expiry of the said period of two years) to pay such benefit to the Insured Member's estate and/or to pay or apply such benefit to or for the benefit of any one or more of the Insured Member's Dependants and Relations living at the Insured Member's death and/or such persons or bodies as the Insured Member may have notified in writing to the Principal Employer in such manner as the Principal Employer shall decide. In exercising this power the Principal Employer may have regard to but shall not be bound by any wishes notified to the Principal Employer by the Insured Member.

(b) If at the end of the period within which the Principal Employer may exercise the power set out above the Principal Employer shall not have exercised that power, or shall have exercised it only in respect of part of the said benefit, the Principal Employer shall pay the whole or the balance (as the case may be) of such benefit to the Insured Member's estate, ….

(c) In this Rule-

“Dependants” means persons who in the opinion of the Principal Employer shall have been wholly or partly maintained or financially assisted by the Insured Member (including being dependant upon the Insured Member to maintain a joint standard of living); and

“Relations” means the spouse, parents ancestors and descendants (however remote) of the Insured Member and the brothers, sisters, uncles, and aunts (whether of the whole or half blood) of the Insured Member and the descendants of any of them, and shall be construed as if the stepchild or adopted child of any person were that person's natural child.”

18

The “Life Assurance Benefit” described in Appendix A to the Scheme Rules was, for present purposes, “an amount equal to four times his Scheme Earnings at the date of his death”. The effect of the definitions of “Scheme Earnings” and “Earnings” in...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT