Arnup & Anore v MW White Ltd

Payments made by a tortfeasor after a death are not subject to a special rule under Fatal Accidents Act 1976 s.4. The statutory question is whether the benefit accrued as a result of the death. A death may be the occasion for payment without being its legal cause where payment depends on an independent discretionary decision. Payments made by an employer’s scheme therefore fell outside s.4 where the employer chose to pay the dependant, although the insurance and benevolence exceptions remained relevant. An employee does not contribute indirectly to employment insurance merely because the employer considered the benefit when setting wages. Evidence must show that, without the insurance, the employee would have received higher remuneration. A payment made by an independent trustee at the employer’s request may fall within the benevolence exception.

The claim arose from the death of Kevin Arnup, who was killed at work while employed by M.W. White Limited. His widow claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. Liability was admitted, but the parties disputed whether two payments to Mrs Arnup should reduce her dependency damages.

The payments were £129,600 from the employer’s death-in-service scheme and £100,000 from an employee benefit trust administered by Bridgewater Corporate Services Ltd. A preliminary issue was directed concerning whether either payment should be set off against the dependency claim. The central questions were whether the payments accrued as a result of the death under s.4, and whether either fell within the insurance or benevolence exceptions.

1. Statutory treatment of tortfeasor payments. The court rejected the submission that money or services provided by a tortfeasor to the estate or a dependant attract a special rule under s.4 of the Fatal Accidents Act 1976. Fatal-accident damages operate within a wholly artificial statutory structure. The court should not import principles from personal-injury damages which conflict with that structure. The decision in McIntyre v Harland & Wolff plc supported applying s.4 to payments made by a tortfeasor.
2. Causation. Whether a benefit accrued as a result of death is a question of causation. The death may occasion a payment without causing it to accrue to the dependant. The £129,600 became payable to the employer, which had discretion as to the recipient. It accrued to Mrs Arnup because the employer decided to pay it to her. The £100,000 became payable to Bridgewater, which had an independent discretion under the trust. It accrued to Mrs Arnup because Bridgewater decided to pay it following the employer’s request. Neither payment therefore fell within s.4.
3. Insurance exception. The insurance exception did not apply. An employee is not treated as contributing to insurance merely because it was arranged by the employer or was considered generally when wages were fixed. There must be evidence of an identifiable relationship between the insurance and remuneration, such as proof that the employee would have been paid more without the insurance. No such evidence existed.
4. Benevolence exception and result. The £100,000 payment fell within the benevolence exception because Bridgewater was independent of the employer and the money was not within the employer’s gift. The £129,600 payment did not qualify for that exception. The court accordingly directed that £129,600 be taken into account in assessing damages, but that £100,000 be disregarded.