Margaret Anne Coward v Comex Houlder Diving Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE BUTLER-SLOSS,SIR EDWARD EVELEIGH |
| Judgment Date | 18 July 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0718-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/0622 |
| Date | 18 July 1988 |
[1988] EWCA Civ J0718-2
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 ROUGIER)
Royal Courts of Justice
Lord Justice Ralph Gibson
Lord Justice Butler-Sloss
Sir Edward Eveleigh
88/0622
MR. W. S. AYLEN Q.C. and MR. N. R. DAVIDSON (instructed by Messrs. Hancock & Willis) appeared for the Appellant (Plaintiff).
MR. J. LEIGHTON WILLIAMS Q.C. and MR. A. H. JEFFREYS (instructed by Messrs. Russell Jones & Walker) appeared for the Respondents (Defendants).
These appeals were brought from the judgment of Rougier J. given on 31st March 1987 in a fatal accident action. The plaintiff, Mrs. Margaret Anne Coward, is the widow of Edwin Arthur Coward who died in a diving accident on 5th November 1983. They were married in 1972. Mr. Coward was a self-employed professional diver. He was 35 years old when he died and was working for the defendants, Comex Houlder Diving Ltd., on their vessel called the "Byford Dolphin" in the North Sea. The accident was caused through the fault of the defendants who have from the outset admitted liability.
Rougier J. awarded the plaintiff, who sues as administratrix of the estate of her husband, a total of £165,800, to which appropriate interest was added. The plaintiff's appeal and the cross-appeal of the defendants are concerned with aspects of the award of damages under the Fatal Accident Acts. The award included £44,750 pre-trial loss, £3,500 for bereavement, £6,250 for loss of her husband's services in repairs to the house etc. and £111,300 for loss of financial support after trial.
The plaintiff's appeal is directed firstly at the judge's assessment in the sum of £20,000 of the amount which the deceased would have earned after he ceased working as a diver; and, secondly, at the judge's calculation of the net earnings by deduction of 33.3 per cent for tax etc. from the gross earnings in the last two years of diving and by deduction of 30 per cent from gross earnings thereafter. The plaintiff's contention is that the £20,000 gross should have been £25,228 and the deduction for tax etc. should have been substantially less. A further ground of appeal is the contention that this court should re-assess the future loss of the plaintiff by reference to the hypothetical lost net earnings of her husband calculated by reference to the new tax rules announced in the 1988 budget and which under the Provisional Collection of Taxes Act 1968, as the court was told, are now being applied for those taxed on Schedule E in advance of enactment of the Finance Act.
The defendants, apart from submitting that none of the plaintiff's grounds of appeal justifies any increase in the award, have first contended that the judge set the overall multiplier of 14 too high; and, secondly, that the multiplier of 5.5, which was applied to calculate the loss of earnings over the period of about 7.5 years during which the deceased would have continued work as a diver, was also too large. Next, it was said that the judge put the hypothetical earnings too high for the deceased's remaining period as a diver. Finally, it was said that the judge was wrong in principle in applying the conventional approach that two-thirds of a husband's net earnings can properly be regarded as his wife's financial dependency upon him and by failing to take into account the plaintiff's own earnings and contributions to the joint family purse. The judge should, it is said, have deducted one-third of the plaintiff's net income from the conventional amount of two-thirds of the net income of the deceased.
The facts of the case were of unusual complication and difficulty. The learned judge reduced them to certain issues which he decided in a judgment of admirable clarity. I can gratefully take from it the following summary statement of the facts.
Mr. Coward, the deceased, started his career in commercial diving in 1974 after leaving the Royal Navy. According to the evidence before the judge, the diving industry was then enjoying a prosperous time of boom because of development of the North Sea field. By the end of the 1970's Mr. Coward had acquired experience and skills but his periods of employment and his earnings were irregular. The plaintiff was working, throughout, as she still is, as a midwife. She was a year older than Mr. Coward. By 1979 they had bought on mortgage a house in Ports-mouth. Work had to be done to it and Mr. Coward himself did much of it. By the autumn of 1983, after a bad spell of low earnings to which further reference will be necessary, Mr. Coward was much better placed. He had got work with the defendants in April 1982 and in June of that year was assigned to the "Byford Dolphin". That was important because on the "Byford Dolphin", unlike all other work sites for divers, Mr. Coward was kept on pay throughout the year including the winter but with, of course, much higher earnings when diving. The periods of diving were not frequent. For the year from April 1982 to March 1983 Mr. Coward's gross earnings were £13,000. From April 1983 until the accident on 5th November 1983, a few days over seven months, Mr. Coward earned £14,439 net.
It was in the autumn of 1983 that things appeared to Mr. Coward and the plaintiff to be settled enough for them to think about starting a family. The work to the house was done. The plaintiff was contemplating coming off the pill. She intended to work until about the 28th week of her pregnancy. They also wanted a larger and better house out of the city. After the babies were born—if they were successful in having the one or two children which they hoped to have—they planned to buy the larger house. The plaintiff would not have returned to work at least until the children were grown. All those plans were, as Rougier J, observed, suddenly and cruelly brought to an end.
Although Mr. Coward's current position and future prospects were improved, when he got his place on the "Byford Dolphin", there remained considerable uncertainty. Rougier J. accepted the evidence of Mr. Dark, of Petrodata, that the conditions of boom for the diving industry had come to an end. The whole of the North Sea industry had been forced to pare its overheads and that trend had been redoubled as a result of the fall in the price of oil in 1984/85. Revival in the industry was not expected until well into the 1990's. There was endemic over-supply of diving services. The number of divers employed by the defendants dropped from an average of 234 in 1984 to 134 in 1986. The security of the place on the "Byford Dolphin" would not have lasted beyond the end of 1984 when the contract, under which the defendants were operating from that vessel, was due to end. After that date Mr. Coward would have returned to the pool of all the unemployed divers looking for work in the industry. He would have been considered by the defendants for the work which they had but he would have been considered along with many others.
There was before the judge much evidence as to the age at which divers stop doing the work from which high earnings can be made. The work is recognised to be dangerous; to be capable of causing impairment of health; and to be in many respects stressful and unpleasant. Rougier J.'s conclusion was that Mr. Coward would have stopped diving between the age of 42 and 43, that is some seven to eight years after the date of his death: between November 1990 and November 1991. There has been no attack upon that holding.
The parties presented very different cases as to the probable course of the further work and earnings of Mr. Coward in diving, and after he stopped diving, if he had lived. For the plaintiff it was said that a fair picture of Mr. Coward's notional earnings while still diving could be derived by taking an average of the earnings of three divers employed by the defendants: Mr. Godfrey, Mr. Keen and Mr. Leonard. For the defendants it was contended that the judge should adopt as a safer guide the earnings of a Mr. Bremmer, and of a Mr. Aige, together with those of Mr. Leonard. In order to assess those submissions the judge had to examine the evidence about another vessel called "Staydive" which was also highly unusual in that work was carried out from it all the year round so that the earnings of a diver assigned to it would be much increased. Vacancies on "Staydive" were few and far between; jobs on it were much sought after; but the numbers employed on it had run down, namely from 42 to 28. Mr. Godfrey had got a place on "Staydive" in February 1984.
The judge's conclusions upon this highly speculative issue were as follows. He could not say that Mr. Coward would not have got a job on "Staydive" after the end of 1984; but, if Mr. Coward had applied for the job, and it was not known that he would have done, the judge was even further from being able to say that Mr. Coward might have got the particular job on "Staydive" which Mr. Godfrey secured. Of the divers put forward as "comparable", Mr. Leonard was, with one or two reservations, the "nearest" for this purpose. The judge therefore based his projection of Mr. Coward's notional future earnings on those of Mr. Leonard but added 10 per cent throughout to the sums earned by Mr. Leonard to take account of three factors: firstly, the fact that two witnesses, Mr. Woodcock and Mr. Barrett, had "rated" Mr. Coward somewhat more highly than Mr. Leonard; secondly, the chance, which was not to be rated highly, of Mr. Coward having got a job on "Staydive" after the end of 1984; and, thirdly, such extra earning...
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