Hayden v Hayden

In assessing dependency damages for the loss of a deceased mother’s domestic services, the court must determine the child’s actual pecuniary loss by comparing the services lost with those likely to have been provided. Voluntary replacement care is not automatically deducted as a benefit resulting from the death. Its quality, continuity and likely duration may be relevant to whether, and to what extent, any loss exists. Where the tortfeasor himself provides the replacement care, the court is not required to disregard it or to award the commercial cost of a notional nanny. The assessment remains a jury question, now performed by the judge as fact-finder, and must be made on the particular facts.

The defendant’s negligent driving caused the death of the plaintiff’s mother. The plaintiff, then aged four, continued to live with and be cared for by her father, who had been driving the vehicle and gave up his employment. Buckley J awarded £20,000 for loss of dependency under the Fatal Accidents Act 1976, in addition to damages for minor personal injuries.

The defendant appealed against the amount. The plaintiff cross-appealed, arguing that the award was too low and that her father’s replacement care had to be disregarded under section 4 of the Fatal Accidents Act 1976. The Court of Appeal considered voluntary substitute services, the notional-nanny method of valuation and the proper assessment of actual loss.

By a majority, the appeal and cross-appeal were dismissed. Parker LJ and Sir David Croom-Johnson formed the majority. McCowan LJ dissented and would have allowed the cross-appeal, substituting £30,000.

1. The assessment of dependency damages for lost domestic services remains a jury question, now performed by the judge as fact-finder. The court must make a fact-sensitive comparison between the services the deceased would probably have provided and the actual or likely post-death position, including the quality, continuity and duration of replacement care.
2. The majority held that the father’s continuing care was not a benefit accruing as a result of the death under section 4 of the Fatal Accidents Act 1976. It was the discharge of continuing parental duties. Nevertheless, the care was relevant to the factual assessment of the child’s actual loss. Parker LJ preferred Hay v Hughes [1975] QB 790 to Stanley v Saddique [1991] 2 WLR 459 on the question whether substitute family care resulted from the death. Croom-Johnson LJ treated Stanley as binding but distinguished it because it concerned absorption into a new family.
3. The commercial cost of a notional nanny was not a universal measure. On the facts, where a nanny would never have been employed, a multiplier-and-multiplicand calculation was inappropriate. The award was a jury assessment based on what had happened and what was likely to happen. It was not shown to be manifestly wrong. The majority therefore upheld the £20,000 award.
4. McCowan LJ considered that Stanley required voluntary substitute care to be disregarded, whether or not the carer was the tortfeasor. He held that the trial judge had wrongly taken the father’s care into account.

The further evidence concerning the plaintiff’s later move to her grandmother was not admitted because it did not explain the move and was not likely to have materially affected the trial judge’s assessment. The appeal was dismissed with costs. The cross-appeal was dismissed with no order as to costs, subject to legal aid taxation.

• Court of Appeal: The defendant appealed and the plaintiff cross-appealed against the decision below. By a majority, both were dismissed.
• High Court, Queen’s Bench Division: Buckley J awarded £20,000 for loss of dependency under the Fatal Accidents Act 1976, together with £1,000 for minor personal injuries.