Graham Burgess v Dominik Sikprski & Anor

Under the Fatal Accidents Act 1976, services dependency is assessed by identifying the services the deceased would have provided, translating them into a reasonable monetary value, and considering how they could reasonably be replaced. The assessment is necessarily evaluative rather than mathematically exact.

Past gratuitous services may ordinarily be valued using the relevant replacement-care rate subject to the conventional 25% deduction for tax and National Insurance. Future services may be valued at commercial replacement rates even where relatives are presently providing the services and commercial help has not yet been purchased.

Apportionment should reflect the actual lost dependency of each dependant. Reasonable professional deputyship costs may be recoverable where they are necessary to enable protected dependants to use damages awarded to fund replacement services.

The claimant, acting for the estate and dependants of Michelle Griffiths, brought claims under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 after her death in a road accident. Liability was admitted subject to a 30% reduction for contributory negligence, and most heads of damage were agreed.

The trial concerned the valuation and apportionment of past and future services dependency for Michelle’s husband Ian and her adult sons Aaron and Matthew, both of whom had learning disabilities. The court also had to decide whether professional deputyship fees for Aaron and Matthew were recoverable under the FAA, and if so their amount.

1. Services dependency. Section 3 of the Fatal Accidents Act 1976 requires compensation for the pecuniary loss of benefits in money or money’s worth which would have accrued from the deceased’s relationship with the dependants. The court must identify the services actually provided or reasonably expected to have been provided, and then assess how they could reasonably be replaced. The exercise is evaluative and does not require mathematical precision.
2. Past services. Michelle would have provided 26 hours per week: 18 hours of general domestic and household services and 8 hours of additional services for Aaron and Matthew. The appropriate rate was the Day Aggregate Rate under the National Joint Council Payscales, reduced by 25% because the services had been provided gratuitously by family members, and then reduced by 1% under Table E of the Ogden Tables. Past services dependency was assessed at £70,668 and apportioned £16,308 to Ian and £27,180 to each son.
3. Future services. The normal measure was the commercial cost of replacement services, regardless of whether the family immediately purchased them. The award included a housekeeper, miscellaneous domestic services, a support worker for the boys, emergency call alarms and case management. A live-in carer was not justified because the evidence did not show a need for overnight supervision. The court applied reductions of 15% from Michelle’s assumed age of 75 and 33% after Ian’s likely death. Future services dependency was assessed at £969,708, apportioned £137,386 to Ian and £416,161 to each son.
4. Deputyship fees. Professional deputyship fees were recoverable under FAA s 3. Although such fees were not themselves services Michelle would have provided, they were a necessary corollary of enabling the protected beneficiaries to access and use the damages awarded to fund replacement services. The fees awarded were £227,566 for Aaron and £186,525 for Matthew. No additional percentage ceiling was imposed because proportionality was assessed by reference to the agreed work, rates, fund size and complexity.
5. The court granted permission to appeal on the recoverability of deputyship fees under the FAA.

First-instance decision. No earlier judgment or appeal decision is stated in the judgment.