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Loss of Services Claim for “Housewife” Is Not a Nominal Loss - Gordon Exall, Zenith Chambers

01/10/14. I looked at the case of Knauer -v- Ministry of Defence [2014] EWHC 2553 (QB) in an earlier article. However one significant aspect of the case justifies close examination. The judge put a clear and definite value on the loss to a widower caused by the death of his wife who were in a “traditional” relationship where she did all the housework. This case belies the contention that loss of services claims are “nominal”. They have a substantial value and careful enquiries have to be made.

THE FACTS

The couple were in, what the judge described, as a “traditional” relationship whereby Mrs Knauer did the majority of the housework. The judge carried out a careful valuation of the services provided and concluded that they had a substantial financial value.

The multiplicand

  1. The claimant’s case as put in the Schedule of Loss and in the report of Ms Kirby is that Mrs Knauer used to spend 20 hours per week on household tasks excluding gardening and decorating. Mr Knauer’s oral evidence, which I accept, was that his late wife was extremely houseproud and would spend three hours on these tasks on a typical weekday and more than that on Saturdays and Sundays. It may be that the figure of 20 hours is if anything an underestimate of the time she spent. I do not think it would be right to allow for more than the figure set out in the Schedule, but I do not accept the submission (as a fallback from the argument that nothing should be allowed at all) that 20 hours was an overestimate or that Mr Knauer could and should make do with less.

  2. Mr Steinberg submits that the claimant is entitled to the cost of engaging a resident housekeeper: there is a quotation from an established agency in the documents at £25,168 per year (£484 per week). He argues that this is the best way of providing the constant attention to which Mr Knauer had become accustomed.

  3. As to hourly rates for services such as cooking, cleaning and laundry, Mr Pawson writes that he would “expect Mr Knauer to recruit a cleaner locally and allow £8 per hour”. He bases this on the rates set by the National Joint Council for Local Government Services. He accepted, however, in answer to a question from me, that it is well known that the demand for services of this kind is rapidly expanding due to the combination of increased longevity and decreased local authority funding for community care. The days of a ready supply of cleaners and cooks eager to accept work from individual householders at barely more than the minimum wage are passing.

  4. Ms Kirby recommends a resident housekeeper, but on hourly rates said that she strongly disagreed with Mr Pawson’s figure of £8 per hour. She said that nowadays one should expect to pay £16 per hour for a cook/cleaner provided through an agency and at least £12 per hour for someone recruited direct, if you could find one. She later accepted that ifthe going rate in an area were £10 for direct hiring, the agency rate, involving a commission of about 20%, would be £12.50; but I did not understand her to be retracting her earlier figures. (The Schedule to her report contains lower figures, but it also has a number of calculation errors, and I prefer her evidence before me in the witness box.)

  5. Mr Steinberg submits that if I am against him on provision of a resident housekeeper, I should allow the agency rate for cooks and cleaners, since that would ensure a continuity of services similar to that provided by Mrs Knauer, and save the Claimant from having to recruit direct.

  6. In my view it would not be reasonable to require the Defendant to pay for a resident housekeeper to replace what has been lost, if broadly similar services could be obtained by other means. But I accept Mr Steinberg’s alternative submission that such continuity of services could only be provided through an agency. I allow 20 hours per week at £16 per hour, which totals £16,640 per year.

  7. In addition a claim is made for a gardener at £1,750 per year; hedge trimming services at £350 per year, decorating at £750 per year; £624 for online shopping delivery charges and £150 for travel costs. I disallow the last two items: I am not satisfied that online delivery charges will have to be incurred, nor that the cost to the family of driving to the shops will be increased. I allow 75 hours per year (2.5 hours per week for 30 weeks) for gardening and 50 hours per year for decorating. As to hourly rates for these, Mr Pawson would allow £10 per hour: Ms Kirby said with some force that “you would never get someone for that”. Neither is in truth an expert on gardening or decorating, and it would have been disproportionate for such experts to have been called. I allow £12 per hour under these headings also. The figures are therefore £900 pa for gardening and £600 pa for decorating.

  8. The multiplicand is therefore £18,140.

  9. The period from Mrs Knauer’s death to the date of trial is 4.86 years. The total award for past services dependency is therefore £88,160.

Future services dependency

  1. The multiplier put forward by Mr Steinberg is 18.15. Mr Poole’s is slightly higher (18.6) although his suggested multiplicand was far lower. I accept Mr Steinberg’s figure.

  2. The figure for future services dependency is therefore £329,241.

REJECTION OF THE ARGUMENT THAT THERE WAS NO CLAIM FOR PAST LOSSES WHERE ASSISTANCE HAD NOT, IN FACT, BEEN USED

Another feature of the judgment was that the judge roundly rejected an argument that, in relation to past loss, there should be no award because there had been no financial expenditure.

Services dependency

  1. Mr Poole argued vigorously that there should be no award for either past or future services dependency. Five years have passed since Mrs Knauer’s death, he points out, yet Mr Knauer has not engaged a paid cook, cleaner, gardener or decorator, still less a resident housekeeper.

  2. This submission, with respect, is misconceived, on basic principles of the law of tort. If a claimant’s brand new Rolls-Royce is written off through the defendant’s negligence the damages must include its replacement value even if the claimant decides that he will change to a cheaper car or in future take public transport. The same principle applies to claims for loss of services under the Fatal Accidents Acts; and to claims for future loss, though not past loss, brought by a living claimant for her own personal injuries (Daly v General Steam Navigation Ltd [1981] 1 WLR 120). Of course in a sense the value of a lost spouse cannot be measured in money terms (see Proverbs, chapter 31, verses 10 ff.) but the law has to do the best it can.

  3. Mr Poole is right to say that in predicting the future one can take account of what is known to have happened already. As Aneurin Bevan said in a different context, “why look into the crystal ball, when you can read the book?” The classic example in tort law is a Fatal Accidents Act claim where the surviving spouse has himself died by the time of trial: there will be no award for his future dependency, though there may be for that of the deceased’s children. But this does not alter the basic rule that the claimant is entitled to the value of what he has lost. Indeed, Mr Poole’s submission is contradicted by high authority: in Hay v Hughes [1975] QB 790 at 809B Lord Edmund-Davies said that “the fact that a widower decided to manage himself after the death of his wife would not disentitle him to sue for and recover damages for the pecuniary loss he had sustained.”

CARE NEEDS TO BE TAKEN IN ASSESSING LOSS OF SERVICES CLAIMS

In many cases it is asserted (sometimes by claimants) that these awards are relatively nominal. However this is clearly not the case. The value of the services provided by a lost partner, or carer, has to be properly and fully quantified, sometimes by the use of expert evidence. There will be a loss of service claim in many fatal claims even where the dead person was not providing these services full time.

Gordon Exall
Zenith CHambers

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