Corbett v Barking, Havering and Brentwood Health Authority

In assessing a child’s fatal-accident dependency for the loss of a mother’s services, the cost of a nanny may provide a practical guide but is not a precise measure of the loss. The court must value the lost services, rather than the cost of purchasing replacement care, and must make a broad jury-style assessment.

The multiplier remains calculated from the date of death. However, where the dependent’s continued need for support, rather than the provider’s lifespan, fixes the period of dependency, the court must reflect known survival to trial by reducing the discount for uncertainties which have disappeared. A future educational dependency is a recoverable lost chance and must be valued rather than rejected because it is not proved on the balance of probabilities.

The claimant was a child whose mother died shortly after his birth as a result of anaesthetic mismanagement for which the health authority admitted negligence. He was brought up by his grandmother.

Judge Hayman, sitting as a Deputy High Court judge, assessed damages under the Fatal Accidents Act 1976. He used the net wage of a notional nanny or housekeeper as the measure of lost services, applied a multiplier of 12 from the date of death, and reduced interest because of the exceptional delay in bringing the claim.

The child appealed, principally challenging the multiplicand, the multiplier, the treatment of a chance of further education, and the interest deduction. The central issue was whether known survival during the long pre-trial period could affect a multiplier which remained assessed from the date of death.

1. Appeal allowed in part. Purchas LJ, with whom Farquharson LJ agreed, held that the multiplier should be increased from 12 to 15. The post-trial award was therefore increased from £1,300 to £9,100. Ralph Gibson LJ would have increased the multiplier only to 13.

2. The majority held that the multiplier in a fatal-accident claim must still be assessed from the date of death. Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 did not require the court to disregard facts established by trial where the child’s own period of dependency was the limiting factor. The child’s survival for 11½ years removed an uncertainty which would otherwise have depressed the multiplier. Uncertainties concerning the hypothetical mother’s continued ability and willingness to provide support nevertheless remained relevant.

3. The judge had also erred by treating further education as an all-or-nothing fact which the child had to prove on the balance of probabilities. Following Davies v Taylor [1974] AC 207, the court had to value the reasonable chance that dependency would continue. The majority treated this as one element supporting the multiplier of 15.

4. The court rejected the challenges to the nanny-based multiplicand. A nanny’s net wage was only a broad aid to valuing the mother’s lost services. The judge was entitled to exclude separate allowances for replacement cover and to make a broad reduction after school age. The modest additional award for diminished personal care was also left undisturbed.

5. The judge had discretion under section 35A of the Supreme Court Act 1981 to withhold interest for part of an exceptionally delayed claim. The four-year reduction was not disturbed, notwithstanding that the claimant was an infant.

• Court of Appeal (Civil Division): Allowed the child’s appeal in part. The majority substituted a multiplier of 15 for 12 and increased the post-trial dependency award.
• High Court, Queen’s Bench Division: Judge Hayman, sitting as a Deputy High Court judge, awarded damages under the Fatal Accidents Act 1976. No reported citation for that decision is stated in the judgment.