AB v KL

In a fatal-accident dependency claim, future financial and services losses must be assessed by estimating what would probably have happened, while allowing for real but uncertain possibilities. The court may award damages for a possibility that is more than fanciful, even where it is less likely than not, but the award must reflect the chance of occurrence.

Claims involving future gifts, housing assistance, weddings and similar support require assessment of the deceased’s character, resources, past conduct and the claimant’s circumstances. Commercial replacement cost may provide a starting point for services dependency, subject to deductions where replacement services are not purchased commercially. Awards must be assessed overall to avoid overcompensation.

The claimant, as personal representative of GH’s estate, brought proceedings against KL following GH’s death in a motorcycle collision. Liability had been admitted and judgment had previously been entered for the claimant, with quantum to be assessed.

The claim comprised estate damages and dependency claims for GH’s three sons, including financial support, services, intangible parental benefits, future assistance with homes and weddings, and related expenses. The principal issues concerned the proper approach to uncertain counterfactual and future losses, and the sums reasonably attributable to those possibilities.

1. Assessment of uncertain future loss. The court applied the approach in Mallett v McMonagle, [1970] AC 166, Davies v Taylor, [1974] AC 207, and Perry v Raleys Solicitors, [2019] UKSC 5. Where the issue concerns what would have happened in the future, the court must assess the relevant chance rather than apply the balance of probabilities mechanically.
2. A possibility which is fanciful or wholly remote attracts no award. A possibility which is substantial or otherwise more than fanciful may attract damages, reduced to reflect its likelihood. The assessment remained fact-sensitive and required consideration of GH’s past generosity, financial resources, relationships with his sons and competing financial obligations.
3. The court awarded damages for future assistance with first-home purchases and weddings despite uncertainty as to whether the events would occur, the form of assistance and its amount. The awards were discounted substantially to reflect those uncertainties.
4. For services dependency, the commercial cost of replacing the deceased’s services could be used as a starting point, even where no commercial replacement had been obtained. In appropriate cases the figure could be reduced to reflect savings in tax and national insurance and the net value of the services: Bordin v St Mary’s NHS Trust, [2001] Lloyd’s Rep. Med. 287; Housecroft v Burnett, [1986] 1 All ER 322; and Knauer v Ministry of Justice, [2014] EWHC 2553 (QB).
5. An award could also recognise intangible parental services and benefits which were not commercially replaceable. The appropriate figure depended on the circumstances and the age, relationship and living arrangements of the dependants, applying Regan v Williamson, [1976] 1 WLR 305.
6. Damages were assessed in principle at £10,765.80 for the estate and £203,741.50 for the dependants. Questions concerning accelerated receipt, interest and apportionment were left for agreement or further determination.