Hayden v Hayden
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN,SIR DAVID CROOM-JOHNSON,LORD JUSTICE PARKER |
| Judgment Date | 24 March 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0324-8 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 March 1992 |
| Docket Number | 92/0305 |
[1992] EWCA Civ J0324-8
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Buckley)
Royal Courts of Justice
Lord Justice Parker
Lord Justice McCowan
and
Sir David Croom-Johnson
92/0305
MR. MICHAEL BRENT QC and MR. DUNCAN MACLEOD (instructed by Messrs J. D. Spicer & Co.) appeared on behalf of the Respondent (Plaintiff).
MR. WILLIAM CROWTHER QC and MR. CHRISTOPHER RUSSELL (instructed by Messrs Berrymans) appeared on behalf of the Appellant (Defendant).
This is an appeal by the defendant against an award of damages to a minor suing by her next friend made by Buckley J. on 14th September 1990. The defendant says the award was too large. The plaintiff cross-appeals to argue that it was not large enough.
The action resulted from a motor accident on 30th August 1983. The defendant was driving a motor car towing a caravan. His wife was a passenger in the car when the car and caravan overturned and his wife was killed. Liability was not disputed.
At her death the deceased was aged 35 and the defendant about two years older. The couple had five children who were then aged 19, 17, 15, 14 and 4. All five lived at home with them.
It was common ground that the deceased was an excellent mother, a good housekeeper and cook, devoted to her children.
The defendant had a garage business which was, up to the time of the accident, doing well and from which he took about £15,000 a year. The deceased did the paperwork in the business and for that was paid £30 a week. By six months after the accident the business had so run down that the defendant was able to sell it for only £5,000. Part of the reason for its decline, according to the defendant's evidence, was his inability to deal with the paper side, but another significant factor was that he began to drink heavily and neglected his work.
Having sold the business he has not worked since, but has lived on supplementary benefit. The other four children have over the years left home (two to live with girlfriends and two with their maternal grandmother). The youngest child, Danielle, who is the plaintiff, had, however, lived with the defendant from the date of the accident to the trial of the action, and he had devoted himself to looking after her. She is now aged 13.
Her next friend is her maternal grandmother. All five children were made plaintiffs in the action, but it was pursued only on behalf of Danielle.
The judge awarded her total damages of £21,000, £1,000 of that being for the minor personal injuries she suffered in the accident. The defendant does not appeal that part of the award; but he does appeal the £20,000 awarded to her as a dependent of the deceased under the Fatal Accidents Act 1976.
On behalf of the plaintiff, evidence was adduced as to the cost of providing a nanny for Danielle and this was the yardstick the judge was invited to consider. He had evidence from a Sheila Davis, who runs a nanny agency. She put forward a schedule based on the full cost of supplying a nanny until Danielle was 11 and thereafter at half cost until she was 15, the multiplier being 11 and the total figure arrived at £48,000. According to the judge the main defence argument at the trial was that, as the defendant had looked after her since shortly after the accident and she would or might want to repay him for those services, it was wrong that she should be able to recover the cost from him in legal proceedings. The judge rejected this argument, which he said was based on a legal or moral obligation to repay, saying that the true basis can only be that "the plaintiff has actually suffered a real loss which is capable of being quantified in monetary terms."
The judge proceeded to say:
"I therefore hold that Danielle is entitled to recover the lost services of her mother. The fact that the defendant has provided substitute services does not defeat the claim in principle."
Later in the judgment he continued:
"I also bear in mind the fundamental principle that damages are compensatory and that in this case Danielle has, in the event, been looked after by her father to the date of trial. This benefit is something which is to be disregarded at common law in the sense that it is not to be set-off against any quantifiable loss as on the authorities it is not a benefit which resulted from the death. It is, however, a factor in determining the existence or extent of any loss, at least to the date of trial, as it was by then a fact.
As against that the deceased would, in my view, probably have bestowed more attention on Danielle than her father has been able to do. This is not intended as any criticism of him. There is also the factor that she was an invaluable assistant in the family business, for which she was paid £30 a week at the date of the accident. Mr. Hayden described her as 'priceless', and I have the impression that had she lived, the business would have prospered and Mr. Hayden's problems with drink, of which he spoke in evidence, might have been avoided. Some of the deceased's earnings would undoubtedly have been used to benefit Danielle. I bear in mind that with a sister and three brothers, Danielle would not have been the sole beneficiary, but I am satisfied by the evidence as a whole that the deceased would, over the years, have made a significant contribution to the family income in general, and Danielle in particular.
The figure I have arrived at is £20,000. I would apportion it as to £15,000 to trial and £5,000 for the future. I am conscious that this is not mathematically the same apportionment as Spittle v. Bunny, which is comparable as to the age of the plaintiff and the period from accident to trial, but I regard Danielle as more vulnerable in the future than was Kate in Spittle v. Bunny, and I have had regard to the fact of Mr. Hayden's services to trial in assessing Danielle's actual loss and the nature and extent of it. I find that it has been significant but she has been cared for and to approach the full commercial cost of a nanny would, in my view, be unrealistic. This aspect of the matter was wholly disregarded in Spittle v. Bunny, see page 853H et seq, because the point was not argued and the evidential basis for its consideration was absent.
I should also add that I regard the prospect of Danielle's wishing to pay her own father for looking after her, or his wishing to accept payment, as substantially unreal on the particular facts of this case."
The judge had heard evidence from both the next friend and the defendant. It is plain from the transcript of the evidence that the former bears considerable ill-will towards the latter. Her picture of him as a father to Danielle is not complimentary. One of the problems facing this court has been that the judge made virtually no findings of fact. In particular, he made no specific finding as to how well the defendant has looked after Danielle. At one part of his judgment, however, he does say that "the deceased would, in my view, probably have bestowed more attention on Danielle than her father has been able to do. That is not intended as any criticism of him". I do not see how he can have said this if he has accepted the grandmother's strictures on the defendant.
At the opening of the hearing before this court, Mr. Brent for the plaintiff sought to adduce further evidence. We agreed to look at it de bene esse. It amounted to this: that on 3rd November 1991 (over a year after the judgment under appeal) Danielle left the defendant and went to live with her grandmother where she has remained ever since; and that proceedings have been commenced in the Brent Magistrates Court under the Children Act 1989 to determine where she will live in the future, which proceedings have been adjourned to 6th April 1992 with an interim order that she reside with her grandmother.
This evidence does not tell us why Danielle went to live with her grandmother and it cannot of course tell us what the Magistrates will decide on 6th April 1992. There is nothing to suggest the grandmother is incapable of giving her such care as she now requires. In addition, I read the judge's reference to Danielle being "vulnerable in the future" (see 5E and also 3B of the judgment) as an indication that he bore in mind in making his award that her circumstances might change. For all these reasons I do not consider that the further evidence would or might have had an important effect on the judge's mind, and I for my part would not admit it.
Mr. Crowther for the defendant submits that, although the judge did not explain in mathematical terms how he arrived at the figure of £20,000, it must have contained three elements:
(i) an element in respect of the loss of those services provided by the deceased which were replaced by the defendant,
(ii) an element in respect of the loss of the services provided by the deceased which were not replaced by the defendant (an element often referred to as that of Regan v. Williamson [1976] 1 WLR 305),
(iii) an element of financial benefit from the deceased's earnings.
As to the third element, the judge plainly did take that into account, although he did not quantify it. Mr. Crowther argues for a figure of £2,500 for this aspect of the lost dependency, while Mr. Brent says it should be in the region of £4,500.
Turning to the second element, Mr. Crowther submits that the judge took it into account and that the right figure for it would be £4,000. Mr. Brent...
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