Welsh Ambulance Services NHS Trust & Anor v Williams (Including: Post Judgment Discussion)

A dependency claim under the Fatal Accidents Act 1976 may be established by a lost expectation of future financial benefit or services derived from the deceased. It need not rest on financial support or services actually provided immediately before death.

The dependency is fixed at death. Subsequent decisions by dependants, including successfully replacing the deceased’s work or managing inherited assets, do not increase or reduce it. Where inherited capital produced part of the former income, that capital must be separated from the deceased’s labour. The loss of a wealth creator’s services may appropriately be valued by the reasonable cost of replacement. The court must look to the substance of a family relationship, even where its financial arrangements use a business partnership.

The respondent’s husband was killed when his car was struck by an ambulance driven by the appellant’s employee. Liability was admitted. The respondent brought a claim under the Fatal Accidents Act 1976 for herself and the couple’s three adult children.

The deceased had created and managed a prosperous family builders’ merchant business, property portfolio and machinery collection. After his death, the family inherited his business interest and continued the business successfully. His Honour Judge Hickinbottom, sitting as an additional judge of the High Court, assessed the family’s dependency globally and awarded £1,711,195.85 plus interest.

The appellants contended that there was no dependency because the family was at least as well off after the death. The central issue was whether their post-death success defeated a claim based on the loss of the deceased’s wealth-creating skills and services.

1. Appeal dismissed. Lady Justice Smith, with whom Lloyd and Thomas LJJ agreed, held that the judge had correctly found a compensable dependency.

2. Under sections 1 and 3 of the Fatal Accidents Act 1976, a claimant must prove a financial loss resulting from the death. It is sufficient to show a lost expectation of future benefit in money or services derived from the deceased. The alleged dependant need not have been receiving financial support, or services, immediately before death.

3. The dependency is fixed at the date of death. It is the benefit which the dependant probably would have received had the deceased lived. Post-death conduct cannot alter that value. Thus the children’s successful assumption of the deceased’s management of the family business could not reduce the dependency. Relevant post-death events are confined to matters affecting its continuance, such as a dependant’s death before trial, and updated earnings information reflecting inflation.

4. The court approved the separation of inherited capital from the deceased’s labour. The inherited business assets continued to produce wealth for the family and created no loss of dependency. However, the deceased’s entrepreneurial skill, management, energy and services were a distinct and valuable lost benefit. Following the approach in Cape Distribution v O’Loughlin [2001] EWCA Civ 178, the reasonable cost of replacing those services was an appropriate measure of the dependency.

5. Section 4 did not supply the answer. The family’s post-death financial success was not a benefit accruing as a result of the death which had to be disregarded. It was instead irrelevant at the prior section 3 stage because it could not change the dependency fixed at death.

6. Smith LJ also rejected, as an alternative ground, the late contention based on Burgess v Florence Hospital for Gentlewomen [1955] 1QB 349. The statute does not compensate a surviving business partner merely for lost business profits. But the court looks to the substance of the relationship. Here, the partnership arrangements gave effect to family support and the deceased’s intention that his wife and children should benefit from his wealth creation.

• Court of Appeal (Civil Division) Dismissed the appellants’ challenge to the dependency award: [2008] EWCA Civ 81.
• High Court, Cardiff District Registry His Honour Judge Hickinbottom, sitting as an additional judge of the High Court, assessed damages under the Fatal Accidents Act 1976 and awarded £1,711,195.85 plus interest.