Coward v Comex Houlder Diving Limited

Damages under the Fatal Accidents Act 1976 compensate actual dependency, subject to statutory modifications. Conventional percentages are evidential aids, not inflexible rules. Where both spouses earn and pool income, the starting point is two-thirds of the deceased’s net earnings less one-third of the survivor’s earnings, subject to adjustment for the evidence. An intended but unborn family does not justify increasing the award. Future earnings and taxation are assessed by reference to the available evidence and future chances. Later tax changes generally do not justify fresh evidence on appeal, given the need for finality. A demonstrated tax-calculation error may nevertheless be corrected.

The appellant was the widow and administratrix of a self-employed diver who died in an accident caused by the respondents’ admitted negligence. Rougier J awarded £165,800 under the Fatal Accidents Acts, including damages for loss of financial support.

The widow appealed against the assessment of future earnings, tax deductions and the refusal to increase dependency for the intended children. The respondents cross-appealed against the multipliers, earnings assessment and use of the conventional two-thirds dependency figure despite the widow’s own earnings. The central issues concerned the proper assessment of speculative future loss and dependency where both spouses worked and pooled their income.

Lord Justice Ralph Gibson gave the substantive judgment. Lord Justice Butler-Sloss and Sir Edward Eveleigh agreed.

1. The widow’s appeal was dismissed. The respondents’ cross-appeal was allowed to a limited extent.
2. Under the Fatal Accidents Act 1976, a dependant must generally prove actual loss, subject to statutory modifications such as the treatment of remarriage and death benefits. The court treated Higgs v Drinkwater as binding and correct, so the award was not increased merely because the couple intended to have children who had not yet been born. The judgment also observed that the increased dependency which would have arisen after birth was not thereby lost, but that observation did not alter the order.
3. The conventional two-thirds figure is a factual aid, not an automatic rule. The approach described in Harris v Empress Motors Limited applied to a family unit dependent on the husband’s earnings alone. Where both spouses earned and pooled their income, the proper starting point was two-thirds of the deceased’s net earnings less one-third of the survivor’s own earnings. That calculation could be adjusted where the evidence showed that the deceased would probably have devoted a larger share to joint or spousal benefit. On the facts, 60 per cent of the deceased’s net earnings was a fair and safe assessment.
4. The judge’s speculative assessment of future diving and supervisory earnings, and the multipliers, fell within the reasonable bracket and disclosed no appealable error. The deduction of 30 per cent from post-diving earnings, however, reflected a mistaken understanding of the tax position. It was reduced to 25 per cent. The earlier diving-year assessment was not altered because the relevant factual assumptions had not been shown to make it wrong.
5. Future loss is ordinarily assessed using information available at trial. Although the court had a discretion under Order 59, rule 10(2) to admit fresh evidence, later tax changes were not exceptional circumstances justifying reconsideration. The principles of finality identified in Mulholland v Mitchell prevailed. The award was to be recalculated using 60 per cent dependency and the 25 per cent deduction for post-diving earnings, without reference to the new tax rules. The plaintiff was ordered to pay the appeal costs, with repayment of the resulting difference to the respondents.

• Court of Appeal (Civil Division): [1988] EWCA Civ 18, 18 July 1988. Appeal dismissed; cross-appeal allowed to the stated extent.
• High Court of Justice, Queen’s Bench Division: Rougier J, 31 March 1987. Awarded the widow £165,800 plus interest in the fatal accident action. No report citation was stated.