McIntyre v Harland & Wolff Plc and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Lloyd,Lord Justice Richards |
| Judgment Date | 28 March 2006 |
| Neutral Citation | [2006] EWCA Civ 287 |
| Docket Number | Case No: B3/2005/1467/1491 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 March 2006 |
[2006] EWCA Civ 287
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
HIS HONOUR ANTHONY THOMPSON QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Lloyd and
Lord Justice Richards
Case No: B3/2005/1467/1491
Case 4SO 03740
Mr Jeremy Stuart-Smith QC (instructed by Capital Law) for the Appellants
Mr Nicholas Braslavsky QC and Mr Mark Lomas (instructed by Moore & Blatch) for the Respondent
This appeal raises a short but far from easy point on Fatal Accident Act damages, on which we have been much assisted by the able and mercifully succinct arguments of Mr Stuart-Smith and Mr Braslavsky.
Mr Duncan McIntyre died from malignant mesothelioma resulting from tortious exposure to asbestos many years previously while in the employ of the defendants. At his death, Mr McIntyre had been married for many years to the claimant, his only dependant. From 1978 onwards he worked in Libya. At the beginning of 2002 the intentions of the couple were that Mr McIntyre would retire on the claimant's 60 th birthday, in 2008. There were no counterindications to that course in the known state of health of either partner. However, in May 2002 Mr McIntyre was diagnosed with mesothelioma, with a very limited prognosis. He chose not to return to Libya, but to spend his last months in England with his family. On 5 September 2002 his employers terminated his employment because of his continuing absence. Mr McIntyre died on 10 October 2002.
The only item of damages that is in dispute concerns a payment made to Mr McIntyre under his employers' Provident Fund scheme of which he was a member, and also a payment by his employers of termination pay under Libyan labour law. The payments accrued to Mr McIntyre before his death, but were not in fact made until after his death, when they passed into his estate, of which the claimant was the sole beneficiary. The argument before the judge was that the claimant could not recover in respect of her dependency on her husband's expectation of such payments because that would be double recovery: she had already received the same sums separately as part of his estate. The claimant countered by saying that the case was caught in her favour by section 4 of the Fatal Accidents Act 1976:
"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"
Before us, the argument took a somewhat different shape. But bearing in mind the observation of Beldam LJ in Wood v Bentall Simplex (1992) 1 PIQR at P342 that no aspect of the law of damages has been found in practice to be more dependent on the facts of each particular case than the assessment of loss of pecuniary benefit to dependants under the Fatal Accidents Act, I start with a more accurate account of the facts of this case than is contained in the brief summary set out above. Much depends on the terms of the Provident Fund.
The scheme was a contributory one, "savings" by the employee being enhanced by the employer. On termination of service for any reason other than death, permanent disability or retirement the member receives the value of his accrued savings account, together with a 50 per cent addition contributed by the company [rule 9]. He will also receive from his employer, outside the terms of the scheme, the "end of service gratuity" required by Libyan law. On permanent total disability the member receives the rule 9 amounts and also the end of service gratuity required by Libyan labour law. Under the scheme, the total received under those two heads is enhanced if necessary to bring that total up to the equivalent of 12 months annual salary [rule 11]. On retirement, the member receives the rule 9 amounts; plus similar enhancement of the total of those and of the end of service gratuity [rule 13]. On death in service the member's nominated beneficiary receives the rule 9 amounts enhanced as provided for under rule 11 [rule 12].
These provisions apply in Mr McIntyre's case as follows. Because his service had been terminated, Mr McIntyre fell under rule 9. He received the rule 9 payment and also, outside the scheme, the end of service gratuity. Had he not been ill and had served on as foreseen he could expect on retirement in 2008 or earlier to receive benefits under rule 13. The claimant says that that expectation is part of her dependency. The appellant's objection is two-fold. First, under the scheme the benefits can only be taken once. In the events that have occurred Mr McIntyre...
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