Wendy Price v Marston's PLC

On an appeal concerning causation and damages, an appellate court should respect factual findings unless they contain an identifiable error or cannot reasonably be explained or justified.

Where a claimant proves causation on the balance of probabilities, the claimant need not eliminate every alternative source of injury or infection. In quantifying dependency loss, conventional actuarial and statistical tools remain the starting point. A judge should depart from them only where the facts justify an unconventional approach and the resulting award fairly reflects the evidence.

The claimant, widow and administratrix of David Price’s estate, succeeded at trial in establishing liability for a workplace fall. The trial judge found that the fall caused an infection which led to Mr Price’s death, assessed his hypothetical life expectancy, and awarded damages including financial dependency.

Marston’s appealed the causation finding. Mrs Price appealed the findings that obesity reduced life expectancy by nine years and that financial dependency should be assessed at £10 per week, with no award after Mr Price’s hypothetical retirement at age 73. The central issues were whether the trial judge’s findings were legally or evidentially unsustainable and what consequential orders should be made.

1. Issue 1: causation. Marston’s appeal was dismissed. The trial judge had considered the expert evidence, explained why he preferred the claimant’s experts, and was entitled to find that the fall probably caused a minor skin break through which Staphylococcus aureus entered. The claimant was required to prove that explanation more likely than not; she was not required to rule out every competing source of infection. The judge’s assessment of the evidence was adequately reasoned and fell within the permissible scope of trial fact-finding. The principles concerning adequate reasons in Flannery v Halifax Estate Agencies Ltd t/a Colleys Professional Services [2000] 1 WLR 377, Simetra Global Assets Ltd v Ikon Finance Ltd [2019] 4 WLR 112 and English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 were satisfied.
2. Issue 2: life expectancy. Mrs Price’s appeal was allowed. The trial judgment preferred Professor Almond’s reasoned placement of Mr Price at the lower end of an eight-to-ten-year obesity reduction range, but then inexplicably adopted a nine-year reduction. Applying CPR 52.21(3)(a), the appellate court found that decision wrong and substituted an eight-year reduction. The life expectancy therefore increased from 76.5 to 77.5 years, with the corresponding multiplier increasing from 9.08 to 10.11.
3. Issue 3: financial dependency. Mrs Price’s appeal was allowed in part. The trial judge wrongly abandoned the conventional two-thirds/one-third approach and adopted an unsupported £10 weekly loss. Established methods based on the deceased’s and dependant’s income, multipliers and the Ogden tables should not be lightly discarded. The award to age 73 was substituted with £67,032.83 including interest to trial, with post-trial interest to be agreed. The finding of no dependency loss after age 73 was upheld because no adequate evidence of pension loss had been provided.

• High Court (King’s Bench Division): Appeals from the County Court at Swansea were determined as stated above.
• County Court at Swansea: Following a trial in December 2022, judgment was handed down on 5 September 2023. Liability was admitted, but causation and quantum were contested.