Corbett v Barking, Havering and Brentwood Health Authority
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE RALPH GIBSON,LORD JUSTICE FARQUHARSON |
| Judgment Date | 18 May 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0518-6 |
| Docket Number | 90/0513 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 1990 |
[1990] EWCA Civ J0518-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE HAYMAN
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Ralph Gibson
and
Lord Justice Farquharson
90/0513
MR. HARVEY McGREGOR Q.C. and MR. RODERICK DOGGETT (instructed by Messrs Thompson Smith & Puxon, Colchester) appeared on behalf of the Appellant (Plaintiff).
MR. JONATHAN PLAYFORD Q.C. and MR. TERENCE COUOGHLAN (instructed by Messrs Beachcrofts) appeared on behalf of the Respondent (Defendant).
This appeal raises important issues concerning the assessment of damages "proportioned to the injury resulting from the death…to the dependents respectively…" (Section 3(1) Fatal Accidents Act 1976—"the 1976 Act") in the case of an infant dependant who has lost the support of his or her mother immediately following his birth. The claim, which is brought by Richard Brian Corbett ("Richard") through his father and next friend Brendan Desmond Corbett ("the father"), arises out of his mother's death for which the defendants, the Barking, Havering and Brentwood Health Authority admit responsibility in negligence. The assessment of the loss of dependency has been complicated by the immense delay between the death, which took place at a time when the infant was but a few weeks old, and the trial some eleven and a half years later. In these circumstances it is necessary to set out in summary form the relevant history.
Family history
Richard was born by Caesarean section on 27th October 1977. His mother, who was 29 years of age, died on 12th November 1977 as a result of complications of lung infection caused by mismanagement of anaesthetic procedures during the operation. Richard was her first child. The father is a process engineer employed by the Ford Motor Company. He had joined the company at the age of 16 and served a six-year apprenticeship.
The death caused the father severe shock and reaction against Richard who was seen as a contributory cause of the death. For the next eighteen months to two years the father played little part in the upbringing of Richard who was effectively reared by his paternal grandparents to whose home the father with Richard had moved after the mother's death. After two years the father become reconciled to the position and started taking a much more positive attitude towards Richard. This position developed to the extent that after the first few years, so long as his work schedule allowed it, the father played a substantial role in looking after Richard. When Richard was about three years of age the father established a home for himself and Richard, first in a flat and later a house; but both were near to his parents' home where he still spent most of his time taking all his meals there. Richard remained in the care of his grandparents while his father was at work.
Insofar as the grandmother was capable of doing so, she acted in place of Richard's natural mother. The father's evidence was that she had given Richard a mother's care and comfort and had done "a first rate job looking after Richard". He said that had his wife survived "they would probably have had one or two more children. My wife would have stayed at home to look after them, even after they had started to go to school". At the time of the trial in June 1989 Richard had reached the age of eleven and a half and was about to leave junior school in the summer and move to one of the best senior schools in the area, namely the Royal Liberty School at which he had already secured a place.
Legal proceedings
It is now necessary to touch upon the regrettable history of the proceedings. I have extracted one or two landmarks from the long chronology contained in the court bundle. It is clear that almost immediately after the mother's death the father consulted a firm of solicitors, Messrs Hunt and Hunt. At this stage the claim, under the 1976 Act, was being made solely on behalf of the father and did not include any claim on behalf of Richard. A legal aid certificate was granted in March/April 1978; a writ was issued on 5th May 1978 but not served. No further action was taken to extend the writ which would, therefore, have expired on 4th May 1979. An expert was consulted in August 1978 after which nearly another year passed until May 1979 when this witness said that he had no time to prepare a report. In June 1979 a report was received from another medical expert.
In November 1979 the father instructed another firm of solicitors to whom in December 1979 the legal aid certificate was transferred; these were Anthony Thipthorpe and Company. They commissioned another medical report from a third expert and in April 1980 they approached the authority requesting medical records, etc. In January 1981 counsel was instructed and a letter before action making a claim in respect of the father alone sent in February 1981. In June 1981 the authority made an offer to settle the father's claim in the sum of £2,000 plus costs which was accepted by Messrs Anthony Thipthorpe and Company on 17th August 19891, the father signing a form of discharge in September 1981. None of these documents has been made available to the court.
It was not until May 1982 that the father's present solicitors were instructed and a claim initiated on behalf of Richard. Legal aid was granted over a year later in August 1983. In October 1983 a letter before action was despatched setting out a claim against one of the former firms of solicitors (which one is not identified). In March 1984 the writ against those solicitors was issued and served. This action has been stayed pending the present litigation. The process of obtaining legal aid to pursue the authority on behalf of Richard took place between March 1984 and August 1984. Between July 1984 and June 1985 information was being sought from the authority, or their solicitors, in order to formulate the claim in negligence. A delay of this nature is, in my judgment, especially regrettable where the ground of the claim is medical negligence. It is surprising that an effective claim was mounted at all. The letter before action to the authority was dated June 1985 and a writ was issued in August 1985 and served followed by an amended statement of claim in the same month. Pleadings then ensued but the action was not set down for trial until September 1987. Liability was disputed until just before the trial when the authority admitted negligence and the trial proceeded solely on the question of damages.
The trial
The case presented for Richard before His Honour Judge Hayman was based upon the traditional approach in cases of this kind since the case of Hay v. Hughes [1975] 1 Q.B. 791, namely establishing as the best "instrument" for assessing the loss of dependency the cost of a nanny/carer over the period during which he would be expected to receive the benefits of dependency but ignoring the value of the support he had in fact received from his grandparents.
Before trial the plaintiff's advisers had submitted detailed schedules and tables summarising the evidence which they intended to put before the judge to establish the cost of providing such care and attention. In addition the claim was enhanced by an element in addition to the pure commercial value of hiring a replacement to represent the special features of a mother's care and attention. Evidence was called by both parties to establish the value of the services of a nanny and also to establish the duration of the expected dependency. There was an immediate issue to which I must return later in a little more detail as to whether or not it would be likely that Richard would have proceeded to further education beyond the age of 18.
The judge came to the following conclusions nearly all of which are challenged by Mr. McGregor who presented this appeal on behalf of Richard.
1. That Richard would have been dependent upon his mother until the age of 18:
"In my judgment, from a realistic point of view (to adopt the words of Croom-Johnson L.J. in Spittle v. Bunney), the maximum period to be covered by the award is until Richard is 18, which is 18 years from the death of his mother…That is not only the age of majority but it is about the age when Richard would be likely, in the normal course of events, to leave home and achieve his independence".
2. In rejecting the question of further education the judge said this:—
"The onus of establishing that Richard is likely, on the balance of probabilities, to proceed to tertiary education is on the boy himself, as plaintiff. In my judgment he has failed to discharge that onus. On the evidence the position is evenly balanced: he may or may not go on to higher education".
3. The figure for the commercial value of the services of a nanny/carer to be used as the basis for the computation of loss of dependency was:—
"In my judgment, what must be taken into account is the net in hand figure only; that is the actual amount of money left in the nanny/housekeeper's hands after she has paid her tax and National Insurance contributions.…
In the result, on the basis of the 'nanny' formula the net in hand figure for the nanny/housekeeper for 5 2 weeks in the year is, in my judgment, the appropriate figure to be used in valuing the lost services. All other items of notional expenditure are irrelevant and are to be left out of account".
4. That the net in hand wage at the date of trial was...
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