PI Brief Update

Calculating the correct 'Price' to pay in a claim for financial dependency - Nancy Kelehar, Temple Garden Chambers

25/06/24. Price v Marston’s PLC [2024] EWHC 1352 (KB)

A number of issues were raised in this appeal before Mr Justice Griffiths. Primary liability had been admitted by the Defendant for the Claimant’s husband’s workplace fall. However, the Defendant appealed the judgment on causation that his death from sepsis was as a result of an infection caused by the workplace fall.

The Claimant also appealed two elements of the judgment on quantum as to the determination of the deceased’s life expectancy and the assessment of financial dependency.

The Defendant’s appeal was dismissed as the trial judge had reached a conclusion on causation which was consistent with the evidence presented and was explained to the requisite standard.

The Claimant’s appeal of the decision on life expectancy was allowed. Based on the trial judge’s own logic and its only rational conclusion, the deceased’s life expectancy was reduced due to obesity by 8 years, rather than 9 years. This resulted in a necessary adjustment to the loss multiplier.

Financial Dependency

Of particular importance for personal injury practitioners to note is the judgment on the third issue as to the calculation of the loss of financial dependency. This element of the appeal is addressed at paragraphs 82-153 of the judgment and can be summarised as follows.

The appeal court expressed sympathy with the trial judge who was in an ‘unenviable position’, having not been able to deliver judgment immediately after trial. The judge therefore had to wrestle with written submissions and accompanying case law, which he had not had time to consider before the further hearing which took place following circulation of a draft judgment.

Nevertheless, the appeal court concluded that the approach he had taken to the calculation of financial dependency was unjustified.

The Judge’s Approach

The trial judge concluded that he could not rely upon the approximate figure given by the Claimant as to the benefits she received at the time of her husband’s death. He therefore used the current figure for the benefits of approximately £340 per week which was the figure he had ‘most confidence in’. The judge deducted that figure from the deceased’s weekly earnings of £350 and therefore arrived at a difference of £10 per week and an annual loss of £520. Using the Claimant’s suggested multipliers and interest figures, the judge arrived at a lump sum of £6,357.79 for the loss of financial dependency for the whole period after death up to age 73.

As such, the judge had departed from the conventional two-thirds / one-third analysis of joint income which had been urged upon the judge by the Claimant on the basis of well-known authorities.

On appeal, the Defendant sought to defend the judge’s approach on the basis that there was a lack of precision about the benefits received and the ‘conventional apportionment’ would only be appropriate where the figures are ascertainable.

The Conventional Approach

However, the appeal court concluded that the departure from the established approach was not justified in this case. The court emphasised that the starting point in fatal accident claims is the Ogden tables and the position of the parties at the time of death. The court held that the approach put forward by the Claimant was ‘conventional and in accordance with high and long-established authority’. The reason for reliance on actuarial and statistical tools is to counterbalance uncertainties by ‘averaging over countless examples from other similar cases’. The tools developed are of such value because the task is difficult and speculative.

In this case, the judge had adopted an approach not suggested by either party and the result was ‘extraordinarily removed’ even from the Defendant’s proposed figures.

The court was clear that departure from the conventional approach can only be justified in exceptional and unusual cases. This was not such a case as the lack of precise evidence of benefit rises was not an exceptional element. If the judge had followed the conventional approach, he would not have had to concern himself with later increases in benefits unless they were outside the ordinary run of circumstances.

The judge was bound to apply the caselaw, and the uncertainty in the evidence was in fact a ‘compelling reason’ to use the established method which accounts for some uncertainty.

Upholding the judgment that there was no loss after age 73, the Claimant’s calculation – starting with two thirds of the joint net annual income – resulted in an award of £67,032.83, over £60,000 more than the first instance judgment sum for this head of loss.

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