H (A Child) v S
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Lord Justice Tuckey,Mr Justice Jackson |
| Judgment Date | 11 June 2002 |
| Neutral Citation | [2002] EWCA Civ 792 |
| Docket Number | Case No: B3/2001/1327 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2002 |
[2002] EWCA Civ 792
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE HUTTON
(Sitting as a Judge of the High Court)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy
Lord Justice Tuckey and
Mr Justice Jackson
Case No: B3/2001/1327
Mark Strachan QC and Andrew Young (instructed by Liddell Zurbrugg, Jockey Fields, WC1R 4BW) for the appellant
Howard Lederman (instructed by Stone Rowe Brewer, Richmond, TW9 1AA) for the respondent
This is a defendant's appeal from a decision of Judge Hutton (sitting as a judge of the High Court) who on 18 th May 2001 gave judgment for the second claimant against the defendant in the sum of £307,401.48 (inclusive of interest) under the Fatal Accidents Act 1976, and in the sum of £1,192.68 (inclusive of interest) under the Law Reform (Miscellaneous Provisions) Act 1934. An order was made for the apportionment of the former sum, which included the following dependency awards to three children of the deceased, namely—
(1) AH (female) £32,571.02
(2) NH (male) £119,579.68
(3) PH (male) £137,240.74
Only those three awards are in issue in this appeal. The judge ordered that all parties and witnesses save expert witnesses be known by initials to preserve the anonymity of the children of the deceased, and as no one has asked for that order to be discharged or varied in this judgment I will comply with it.
Background facts.
The claim arose out of the death of the deceased MTM as a result of a road accident on the M25 motorway on 22 nd November 1996. Liability was not in issue. MTM was born on 30 th June 1950 so she was 46 years of age when she died. She married Paul and they had four children—Anthony born 30 th January 1976, AH born 6 th May 1977, NH born 6 th May 1985 and PH born 14 th January 1988.
Unfortunately there were problems between MTM and her husband. The judge records that during the 1980's he "suffered some sort of nervous breakdown". He behaved "very badly and violently" and on 23 rd November 1992 he attempted to murder MTM. In July 1993 he was convicted of that offence and was sentenced to four years imprisonment. MTM and Paul were then divorced. In 1993 AK and his wife, who had been neighbours and friends of MTM and her husband, were also divorced, and in August 1994 MTM and her family began to live with AK at his home at Esher. AK, who was a Detective Sergeant, had two children of his own. They were resident at least for alternate weeks and half of the holidays, and there was also an au pair girl employed by AK. MTM continued with her nursing career. She also did "bank" nurse duties, and looked after her elderly patients who lived nearby, as well as carrying out DIY tasks such as making curtains and decorating, and generally running the home. From August 1995 onwards she and AK combined their bank accounts and discharged their liabilities out of the common pool. MTM received no support from her husband after he was released from prison, and the judge found that the co-habitation between MTM and AK "was as permanent as a marriage".
Although MTM's eldest son Anthony is not one of the persons for whose benefit this action is brought, and although he was not a witness, his career after leaving school, as well as that of his sister, is of some relevance in assessing how on balance the lives of his younger brothers seem likely to develop, and to what extent the pattern has changed as a result of their mother's death. In September 1992 Anthony was aged 16, and he was beginning his A level course. In November 1992 his father attempted to murder his mother, and it is clear from his sister's evidence that there had been problems prior to that traumatic event. In July 1993 his father was convicted and sentenced, and in September 1993 Anthony began his A level course again at a sixth form college, where his sister was also starting her two year approach to A levels. None of that is in any way surprising, but it does explain why Anthony did not get his A level passes until mid 1995 when he was 19 1/2 years of age. He then got a job in the accounts department of a commercial company for a year before starting a four-year degree course in computer programming or information systems at Kingston University, where he did very well. When he began at the University he moved away from home to accommodation which he shared with other students, and after graduating in June 2000 at the age of 24 1/2 he took employment with a computer software company.
AH got one grade D and two grade E's in her A levels in the summer of 1995, when she was just 18. At that time she did not know whether she wanted to act or to teach. She applied to St Mary's College, Twickenham but was not called for interview, and worked for several months to May 1996 as an unqualified assistant at Broadway Centre, Ashford where her brother NH was a pupil. From May 1996 to November 1996 she had no job, but she then obtained employment in the Education Department of Surrey County Council, and, having re-applied to St Mary's, in January 1997 she was given a place. She was thus able to begin her four-year teacher-training course in September 1997, from which she graduated in June 2001, and then obtained employment as a teacher.
NH was something of a problem child. He was found to have emotional behavioural difficulties, and from 1994 to 1996 he was at the Broadway Centre. In September 1996, at the age of 11, just before his mother died, he reverted to mainstream education at the Salesian School, Chertsey, and in the summer of 2001, at the age of 16, he obtained GCSE passes in Geography, Science (double award),English, Mathematics, Physical Education, Design and Technology, and French five of them at grade C, others at grade D and one at grade E. He then started at a sixth form college on a B Tech course in computer programming, and an A level course in Business Studies. At the trial his sister AH gave evidence that his ambition was to follow his brother Anthony to University, and on to a career involving computers, and he seems to be making steady progress in that direction.
PH is now nearly 14 1/2 and is at the Salesian College. His education has not caused problems. In the summer of 2001 he got a good report, but his marks were below the class average except in Science and French. It seems reasonable to suppose that in due course he too may well go on to some form of tertiary education, although neither of his parents in fact did so. His mother started to train as a nurse at the Charing Cross Hospital at the age of 19, and his father Paul went straight from school to train as a police officer.
After the Death.
By the time of the accident Paul was living with his new partner Ann, the former wife of AK, and her two sons (for such period as she had contact with them). Almost immediately after the accident Paul gathered up NH and PH and since that time he has been their principal carer, but he is not in any way party to these proceedings, and sadly it is clear that there is still some tension between AH and AK on the one hand and Paul on the other. There were contested proceedings in relation to where the children should live and the extent of their contact with AH, but there is no evidence to suggest that the Court Orders are not being complied with. After her mother's death AH remained at the home of AK until February 2001 when she moved to a flat which had been owned by her deceased grandparents. AK then sold his house to take up residence with his new partner.
Judge's decision and Grounds of Appeal.
When assessing damages the judge rejected the defendant's argument, based on Hunt v Severs [1994] 2 AC 350, that there should be no award in respect of services and financial support formerly provided to her children by the deceased but now provided for by Paul and his wife Ann, because Paul and his wife are the only ones entitled to benefit from such an award, and they are highly unlikely to do so.
Secondly the judge rejected the argument that in any event Paul cannot be compensated in these proceedings for discharging obligations which as a father it was his parental obligation to discharge (see Hayden v Hayden [1992] 1 WLR 986). There was, it seems, from the time of his divorce, a maintenance order against Paul in a nominal sum.
The Judge's reasons for rejecting those two arguments seem to be three fold, namely—
(1) That under the Fatal Accidents Act the court is required to award damages to dependants, and not to carers.
(2) But for the accident Paul and his wife would not have done anything for NH and PH, so no part of the award should be held on trust for Paul.
(3) The services and financial support which NH and PH have received from Paul and his wife since the accident are a benefit resulting from the death of their mother, and must therefore be disregarded pursuant to section 4 of the 1976 Act.
When he turned to consider the question of the multiplicand the judge accepted the submission made by Mr Lederman for the claimants that the starting point should be 75% of the net income of the deceased, and found that the deceased "would have been promoted to Grade I within 12 months of her death".
As to the multiplier, the judge held that on the balance of probabilities NH and PH will go to universities and that the extension of their education, including probably a gap year, means that in the case of each of them allowance should be made for dependency extending to the age of 24. Measuring from the date of the accident he rounded up the figures to 5 years in the case of AH, 13 years in the case...
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