Devoy v William Doxford & Sons Ltd & Ors

In a fatal-accident dependency claim, the proper measure for lost domestic care and services is the reasonable cost of replacing the services the deceased would probably have provided. The assessment must reflect the nature of the relationship and the claimant’s actual and anticipated needs, rather than an artificial calculation limited to isolated tasks or hours. The court may distinguish between care that the deceased could have provided and specialised care that would have required outside carers. A claim for loss of the deceased’s special attention and affection may also arise where that loss is distinct, although overlap with bereavement damages must be considered.

The claimant brought claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 following her husband’s death from mesothelioma. Liability and causation had already been determined, and the claimant was substituted after her husband’s death. The hearing concerned assessment of damages, particularly her past and future dependency on his care, domestic assistance, companionship and other services.

The claimant had progressive Parkinson’s disease and spinal problems. The principal dispute was the extent to which her husband would have continued to provide care himself, the point at which outside or residential care would have been required, and the appropriate valuation of the resulting dependency.

1. General approach. The claimant’s dependency was assessed by reference to the reasonable replacement cost of the care and services which the deceased would probably have provided. The court rejected an artificial restriction to particular tasks and fixed weekly hours where the evidence showed that the deceased would have been regularly available and would have provided broader domestic, practical and social assistance.
2. Care up to 2013. The deceased was an attentive and devoted husband who would have provided most of the claimant’s care and services to the best of his abilities. His alleged serious back condition was rejected. Up to 2013, the appropriate approach was substantially that advanced by the claimant’s care expert, subject to adjustments for the claimant’s continuing independence, the gradual increase in care, night care during holidays, and care which the deceased would not have provided, such as personal hygiene.
3. Care from 2013. By about 2013 the claimant would probably require specialised 24-hour care, including assistance by two carers or use of a hoist. The deceased, who would then have been 74, could not have provided the majority of that care. Nevertheless, he would probably have supplemented outside or residential care by providing about 20 hours of assistance per week.
4. The deceased’s reduced ability to care for the claimant during his terminal illness was properly included in the award for pain, suffering and loss of amenity, rather than treated as a separate award, having regard to Lowe v Guise [2002] Q.B. 1369.
5. A separate award for loss of the deceased’s special attention and affection could be made in an appropriate case. Allowance had to be made for any overlap with bereavement damages.
6. The agreed multipliers were calculated from the date of death in accordance with Cookson v Knowles [1979] A.C. 556. Judgment was entered for the claimant in the sum of £488,026.76, inclusive of interest.

This was a first-instance assessment of damages. Liability and causation had previously been determined in the same proceedings, and the claimant was later substituted for the deceased. No appellate history is stated.