H v S

Under section 4 of the Fatal Accidents Act 1976, substitute support and care received after a parent's death may be a benefit arising from that death. It must be disregarded both when assessing loss and calculating damages. However, damages for gratuitous replacement care are justified only where they reimburse the voluntary carer for care already provided or remain available for future care. The claimant holds that element of the award on trust for the carer, and the court may enforce the trust.

Dependency awards must reflect all realistic contributions to the children's support. They must also allow for contingencies affecting further education and its duration.

The defendant appealed against dependency and services awards made under the Fatal Accidents Act 1976 following the death of the children's mother in a road accident. Liability was admitted.

After the death, the children's father and his wife became their principal carers. The trial judge treated their support and care as benefits which section 4 required to be disregarded. He also assessed dependency on 75% of the deceased's income, assumed that the two younger children would remain dependent until age 24, and made substantial awards for lost maternal services.

The appeal concerned whether the awards could stand when the carers were unlikely to receive payment, and the correct multiplicand, multiplier and services awards.

Appeal allowed unanimously. Kennedy LJ gave the judgment, with Tuckey LJ and Jackson J agreeing. The dependency and services awards were varied.

1. Where children had depended upon one parent and the other parent had provided no support, the support supplied by that other parent after the death was a benefit arising from the death. Section 4 of the Fatal Accidents Act 1976 required it to be disregarded both in assessing loss and in calculating damages. That conclusion did not permit a windfall. Damages for gratuitous care could be awarded only on the footing that they would reimburse the voluntary carer for past care or be available for future care.

2. Applying Hunt v Severs [1994] 2 AC 350, the relevant damages were held on trust for the voluntary carer. Contrary to the approach in Bordin, the court could and, where appropriate, should enforce that trust. The sums awarded to the two younger children were therefore to be paid into court pending investment directions, including directions concerning payment for care already supplied.

3. The usual common-pool approach to dependency was not apt on the evidence. The deceased's net income could be the starting point, but the trial judge had wrongly ignored the material contributions of her cohabitant and later of the father and his wife. The dependency multiplicand was reduced from 75% to 60% of the deceased's earnings.

4. The evidence did not justify assuming that either younger child would remain dependent until age 24. Proper allowance had to be made for the possibility that they would not enter tertiary education and for its uncertain duration. Dependency was assessed to age 21 for each younger child, and to the older child's entry into teaching employment.

5. The modified discount calculation departed without justification from Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808. The court also reduced the awards for general maternal services and for services uniquely provided by a mother. The substituted total award under the Act was £205,673.71 inclusive of interest.

• Court of Appeal (Civil Division): Allowed the defendant's appeal and substituted reduced awards: [2002] EWCA Civ 792.
• High Court: HHJ Hutton, sitting as a High Court judge, awarded damages under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. The dependency and services awards were varied on appeal.