Harland & Wolff Plc & Anor v McIntyre

In assessing dependency damages for a tortious death, the court must identify the benefits that would probably have accrued had the tort not occurred. A payment triggered by tort-related termination of employment does not replace a later retirement benefit that would have arisen in the counterfactual. Under section 4 of the Fatal Accidents Act 1976, a benefit accruing from the deceased’s estate as a result of the death is disregarded, even if this produces apparent double recovery. The provision applies where payment to the deceased later enhances the estate inherited by the dependant.

Harland & Wolff Plc and Husbands Ltd appealed from a judgment of the Southampton County Court in a dependency claim brought by Patricia Lillian McIntyre. Her husband died from mesothelioma caused by earlier tortious asbestos exposure. Before his death, his employment was terminated and payments were made under a provident fund and Libyan labour law. Those payments passed into his estate, of which the claimant was the sole beneficiary.

The dispute concerned whether the claimant’s dependency on benefits that her husband would probably have received on retirement had the tort not occurred was extinguished or reduced by the earlier payments. The central issue was the application of section 4 of the Fatal Accidents Act 1976 to those payments.

1. Appeal dismissed. Buxton LJ delivered the judgment. Lloyd and Richards LJJ agreed.
2. Counterfactual assessment. Damages had to place the claimant in the position she would have occupied had the tort not been committed. On the evidence, the probable course was that Mr McIntyre would have continued working until retirement in 2008 and would then have received the rule 13 retirement benefits. His tort-related illness, absence, termination and receipt of rule 9 benefits had to be disregarded when identifying that lost dependency.
3. The rule 9 and rule 13 benefits were not the same merely because they arose under the same scheme. They arose on different occasions and for different reasons, and their amounts could differ. The claimant had therefore suffered loss referable to the retirement benefits that would probably have accrued in the counterfactual.
4. Section 4. The fact and amount of the rule 9 payment could be identified when considering the alleged double recovery. However, the payment was made to the deceased and benefited the claimant only through the enhancement of his estate. Section 4 required that estate benefit to be disregarded. Apparent double recovery was not, by itself, an objection, since that possibility was inherent in the statutory direction.
5. Auty. The decision in Auty v NCB [1985] 1 WLR 784 concerned the claimant’s own widow’s benefit under the scheme. Its reasoning that a single benefit was exhausted by death in service did not govern a claim for dependency on the deceased’s benefit. The appeal was dismissed.

• Court of Appeal (Civil Division). Appeal dismissed in [2006] EWCA Civ 287.
• Southampton County Court. Appeal from a judgment of His Honour Anthony Thompson QC in case 4SO 03740. The lower court’s decision is not otherwise stated or cited.