LORD JUSTICE PURCHAS: This is an appeal from the judgment and order of Norland J. dated 13th July 1989 awarding damages in the sum of £34,536 in favour of David Dean Stanley ("the minor") against Mohammed Saddique the driver of a motor car involved in an accident on 24th March 1984 as a result of which the minor's mother, Elaine Stallard, was killed. In an action brought under the Fatal Accidents Act 1976 (as amended) ("the Act") Mohammed Saddique admitted liability and the trial proceeded solely on the question of damages. The minor brings the action by his father and next friend, David John Stanley, who was not married to his mother. The details of what the judge described as "the tangled web of family relationships which occurred before and after the minor's birth" are set out in the judgment but need not be rehearsed in detail here. The appellant does not challenge any of the findings of fact reached by the judge and subject to one matter raised by Mr. Ashworth, who appeared for the respondent, it is not necessary to go behind these findings to consider the evidence.
The basis of the claim is the dependency of the minor upon his mother. The mother was married to a Frederick Stallard by whom she had three children. The first one, who was born whilst the mother was still under 21 and some months before her marriage, was, unfortunately, crippled and suffered from a speech defect. She was born in February 1978. The two younger children were sons: one born in June 1979 and the second born in March 1981.
In the summer of 1982 the mother began an association with the minor's father who was himself married but had been divorced. The father had had one son by his marriage who lived with his mother. The father, although associating with the minor's mother, kept in contact with his former wife to whom he returned from time to time. The mother and father were at Blackpool for the duration of the summer of 1982. They obtained accommodation - a living room and bedroom in a guesthouse - and both obtained part-time casual work: the mother as a waitress and later as a chambermaid, and the father as a barman in a public house. Part of the defendant's case was based upon the mother's leaving her children, the youngest being at the material time between 15 and 18 months of age, in order to go to Blackpool with the father. However, on the other side of this coin during that summer the mother clearly missed her children and telephoned home to her husband for news of them. The result was that her husband and the two children came to Blackpool. In addition, the father's former wife went to Blackpool and as a result, for a matter of a few weeks, each of the minors' parents returned to their respective former spouses. The mother was the first to leave their respective former spouses for the second time and, having found a place to live, invited the father to join her. During 1982 and 1983 the mother had a number of lowly paid casual and part-time jobs such as working in the kitchen of a restaurant, working in the fields picking fruit and in a public house. In December of 1983 the minor was born and thereafter lived with his mother but neither of them were maintained by the father.
At the time of the mother's death the father was working with a net weekly wage of about £63. The mother and the minor were supported by social security benefits. At the time of the death the minor's father was absent from work for about three weeks looking after the minor. Subsequently he resumed work for a short time.
In about June 1984 the father met a young woman named Tracey Stanley ("Tracey"). They were working together picking strawberries. They were married on 3rd November 1984 after which the two moved into Tracey's flat. Tracey had a daughter of her own who by that time was aged eight and a son was subsequently born to the father and Tracey in 1985. The judge found that after his marriage to Tracey the father settled down and was a good father to the minor. The judge was impressed by Tracey:-
"... I am satisfied that she is providing excellent motherly services to the plaintiff, and that she makes no distinction between the three children of the family. The plaintiff is fully accepted as a member of the family of the plaintiff's father and his stepmother.
I am satisfied that the services being provided by the plaintiff's stepmother for the plaintiff are of a higher quality than could foreseeably have been expected to have been provided by the plaintiff's mother. That the infant plaintiff has a good prospect that those will continue to be provided by his stepmother until after he leaves school and is of an age of about 18 when he is able to look after himself entirely".
The judge then made important findings about the mother:-
"I cannot avoid making an assessment of the plaintiff's mother. What I find about her is the result of my assessment of the evidence given by the plaintiff's father; by the plaintiff's mother's first husband (Mr. Stallard) and by her friend Mrs. Alldret.
So far as the services of a motherly kind likely to have been provided by the plaintiff's mother if she had lived, I have reached the clear conclusion that they would have been of an indifferent quality and lacking in continuity. Some indication of her reliability as a mother was the fact that she left her three children, one, the daughter, handicapped; and the other, the younger boy, extremely young, for an irresponsible association with the plaintiff's father in Blackpool. ...
I now consider the question of financial support by the plaintiff's mother for the plaintiff. Probably from time to time his mother would have obtained work and would have supplied some measure of financial support. I am satisfied, on the evidence, that the probabilities were that she would, more often than not, have been unemployed or living on social security benefits, but from time to time would have obtained work of a casual nature. She was interested in flower arranging.
By the time of her fatal accident, the plaintiff's mother had been working at home for a flower shop making flower arrangements such as bouquets and wreaths. However, the flower shop venture would, in any event, have come to an end within a matter of weeks because the owner of the shop died and his wife returned to Canada. But as her conversations with Mrs. Alldret showed, it clearly was the plaintiff's mother's intention to work which would of course have adversely affected the amount of time and care she could have given to the infant plaintiff. Moreover, in any event, the work, as I find, would have been spasmodic and ill-paid.
It is highly improbable that the plaintiff's mother and father would have married. On 29th February 1984 she proposed to him, but his reply was: 'I'll give you an answer in four years time'.
But for his mother's death, the plaintiff's prospects would have been bleak both so far as care and financial security are concerned.
Anyone considering the outlook for the plaintiff at the time of his mother's death would have come to the conclusion that the most likely outcome for his future was that he would be put into care. However, it was his father who came to his aid and looked after him in the months before he married Tracey".
Based on these findings the first contention of the defendants was that as the minor was better off in the home provided by his father and Tracey than he would ever have been with his mother there was no loss of dependency and, therefore, no damages to be awarded under the Act. The judge did not accede to this contention but calculated a loss of dependency adopting the multiplier/multiplicand approach: see Spittle v. Bunney [1988] 1 WLR 847. However, at the end of his judgment at the request of the defendants he assessed two figures for damages on the basis that he was wrong to do this but taking into account the short period between the mother's death and the date when the minor became part of the family unit established by the father and Tracey. The judge's assessment of damages was as follows:-
5
"However, in this case I am dealing with a mother who, on the balance of probabilities, was going to be much absent from home, leaving her child with an unqualified child minder such as Mrs. Alldret.
In my judgment, it would be appropriate in this case to assess the value of the plaintiff's mother's services at the rate of £3,000 per year in the early years of the plaintiff's life. As he grew older and went to school and as he became a teenager, those services would become less necessary and would in fact become much less onerous.
Bearing in mind the extreme infancy of the plaintiff at the date of his mother's death, I consider an overall multiplier from the date of her death to be one of 12 years. For the first four years of the 12 year period I consider a multiplicand of £3,000 a year to be appropriate. For the next four years a multiplicand of £2,000 per year to be appropriate and for the final four years a multiplicand of £1,000 to be appropriate. This is intended to cover the observations of the Court of Appeal in Spittle v. Bunney [1988] 1 WLR 847.
I next assess the value to the plaintiff of the loss of financial support he probably would have received from his mother up to the date of 18. I consider it exceedingly unlikely that there would have been any continuing financial support after that age. As I have already found, the probabilities are that his mother's employment record would have been that of mainly part-time and casual work, lowly paid.
In those circumstances I do not consider it appropriate to use a conventional approach of a multiplier and a multiplicand to estimate a fair figure for the value of financial support that he has probably lost but he has suffered some loss and I assess that in the sum of £5,000.
The argument of Mr. Worsley (counsel for the first defendant) is that because of my findings of fact the plaintiff has suffered no loss at all, but he does accept that it would be open to me, even on my findings of fact, to find that the infant plaintiff did suffer a loss of motherly services in the months after his mother's death before he went to live with his father and Tracey.
If that be the correct approach, I would have assessed damages for the loss of services for that period in the sum of £500.
Mr. Worsley also submitted that it could be open to me, on the basis of Meade v. Clarke-Chapman [1956] 1 W.L.R. 76 and Reincke v. Gray [1964] 1 W.L.R. 832 to find that because Tracey was a stepmother, some allowance by way of lost services should be allowed in case in years to come the marriage of Tracey and the plaintiff's father ended and the plaintiff at some distant date in the future ceased to have the benefit of Tracey's services. If that be the appropriate approach in this case, I would have assessed that loss in the sum of £1,000".
The judge came to the conclusion that the benefits accruing from the home consisting of the father, Tracey and their children was excluded by virtue of section 4 of the Act. This is the first ground of attack on appeal. The problem is one of construction. It is useful to set out the relevant provisions:-
"3(1) In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependents respectively. ...
(3) ... where these fall to be assessed damages payable to a widow ... there shall not be taken into account the re-marriage of the widow or her prospects of remarriage.
4 In assessing damages in respect of a person's death in an action under this Act benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded".
In a nutshell, Mr. Clegg, who appeared for the appellants, argued that if a wide interpretation to the word "benefits" in section 4 was adopted there was no need for section 3 (section 4 is a result of an amendment introduced into the 1976 Act by the Administration of Justice Act 1982). Mr. Ashworth, for the respondents, countered this argument by pointing out that if section 4, as substituted by the 1982 Act, is narrowly interpreted then it would fail to exclude a number of benefits previously excluded in the 1976 Act which would be contrary to the whole policy of the amendments introduced by the 1982 Act. He submitted that there were a number of reasons why section 3(1) was retained although it was, strictly speaking, otiose. The judge rejected Mr. Clegg's argument then presented by his junior, Mr. Hughes, and favoured a broad interpretation of the word "benefits" in section 4.
It is necessary to consider the legislative history of this section although it is not perhaps open to the court to follow to its limit the invitation extended by Mr. Ashworth to consider the Pearson Report (Royal Commission on Civil Liability and Compensation for Personal Injury of March 1978). Mr. Ashworth pointed to passages of the report where Parliament in enacting the 1982 Act had specifically departed from the recommendations of the report, e.g. paragraph 540. Thus he submitted that the report should be ignored when construing the section of the Act substituted by the 1982 Act.
The starting point for the assessment of damages is section 2 of the Fatal Accidents Act 1846:-
"... and in every such action the jury may give such damage as they think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought".
Since this Act was passed by successive statutes a wholly artificial statutory structure has been erected controlling the recovery of damages resulting from death. The Fatal Accidents Act 1846 enacted amendments which are not relevant to this appeal. The Fatal Accidents (Damages) Act 1908 provided that in the assessment of damages there should not be taken into account any payment made under any contract of assurance or insurance. Prior to the passing of the 1908 Act the normal common law rule of assessment of damages, namely the net result of the injuries caused by the death balanced against any benefits accruing therefrom represented the measure of damages. Public policy dictated that those who were provident enough to effect contracts for their own protection should not be penalised. Besides this, a series of common law decisions removed gratuitous or voluntary payments from the benefits deducted from the damages on the basis that they did not arise out of or as a consequence of the death. A similar approach applied in the case of actions for personal injuries where the victim survived.
The Law Reform (Personal Injuries) Act 1948, section 2, provided that no account should be taken of any right to "benefit" resulting from the death in assessing damages under the Fatal Accidents Act 1846 (as amended). In section 2(5) "benefit" was defined as benefit under the National Insurance Acts 1946. In the case of other actions for damages for personal injuries section 2(1) provided that account was to be taken of one half of the value of such rights for five years beginning with the time when the cause of action accrued. Section 2(5) of the 1948 Act was subsequently repealed by the Fatal Accidents Act 1959. Section 2 of the 1959 Act provided that in assessing damages under the Fatal Accidents Act 1846 no account should be taken of "any insurance money, benefit, pension or gratuity". The definition of "benefit" was extended to include benefit under the National Insurance Acts 1946 (as amended) and any payment by a friendly society or trade union.
Apart from section 2(1) of the 1948 Act the extension of the damages recoverable under the Fatal Accidents Act was not matched by developments in the common law rules for assessing the damages recoverable for personal injuries. These still demanded that the net loss on balance should be the measure of damages: see Davies v. Powell Dufferin Collieries [1942] A.C. 601, per Lord Wright, at page 617 and Lord McMillan at page 609. The assessment of damages under the Fatal Accidents Act represented a statutory departure from the basic common law principle against double recovery.
In Malyon v. Plummer [1964] 1 Q.B. 330 per Diplock L.J. at page 345:
"Because in most cases the most reliable guide as to what would happen in the future if the deceased had lived is what did in fact happen in the past when he was alive, the common and convenient way of making the first estimate where the deceased at the time of his death was the breadwinner of the family is (a) to ascertain what annual benefit in money or money's worth in fact accrued to the person for whom the action is brought from the deceased and arising out of the relationship before the death of the deceased, (b) to assess the extent (if any) to which that benefit would be likely to have increased or diminished in value in the future if the deceased had lived, (c) to assess the number of years for which that benefit would have been likely to have continued if the deceased had not been killed by the tortious act of the defendant, and (d) to apply to the annual benefit, assessed under (a) and (c) and generally called 'the dependency', the appropriate multiplier derived from (c) allowance being made for the present receipt of a capital sum in respect of annual losses which would be sustained in the future. But the fact that it is convenient to have recourse to the past for guidance as to what would have been likely to happen in a hypothetical future which owing to the death of the deceased will never occur, must not blind one to the fact that one is estimating a loss which will be sustained in the future".
By section 4(1) of the Law Reform (Miscellaneous Provisions) Act 1971 the remarriage or prospects of remarriage of a defendant who was a widow of the deceased were to be disregarded.
In Hay v. Hughes [1975] 1 Q.B. 790 the court was concerned with the benefit in fact received from the care of the dependant's grandmother by whom the dependant who was an infant was brought up. It is, therefore, directly relevant to this issue. The court was able to hold that the benefit resulting from the grandmother's care was not caused by or resulted from the death and, therefore, could be excluded from the assessment of damages. This was one of a number of cases which fell either side of a very thin and totally artificial line. The obvious difficulties appear from the judgments of the Court of Appeal in this case and are best summarised in the judgment of Ormrod L.J. at page 818:-
"This principle, however, has been so seriously eroded by subsequent legislation that, today, little remains of it. Already by the Act of 1908 Parliament had excepted sums payable on the death of the deceased under insurance policies. The Act of 1959 went much further, excepting a very wide class or classes of benefits, including pensions; and the Act of 1971 directed the court, in the case of widows, to ignore all benefits arising from remarriage or the prospect of remarriage. All that is left of the balancing process appears to be benefits arising from the estate of the deceased and, in the case of children, from their stepfather's liability to maintain them: Meade v. Clarke-Chapman & Co. Ltd. [1956] 1 W.L.R. 76; Reincke v. Gray [1964] 1 W.L.R. 832 and Thompson v. Price [1973] Q.B. 838. Daniels v. Jones [1961] 1 W.L.R. 1103 suggests that even in cases where the benefit arises from the estate, the court will not be unduly influenced by arithmetical calculations. The courts themselves have further restricted the classes of benefit which are to be taken into account by construing such phrases as 'resulting from' or 'in consequence of' the death, restrictively: see, for example, Peacock v. Amusement Equipment Co. Ltd. [1954] 1 Q.B. 347; Redpath v. Belfast and County Down Railway [1947] N.I. 167; Voller v. Dairy Produce Packers Ltd. [1962] 1 W.L.R. 960 and Rawlinson v. Babcock & Wilcox Ltd. [1967] 1 W.L.R. 481".
In this context Parliament passed the Fatal Accidents Act 1976 which, inter alia, provided:-
"3(1) ... such damages may be awarded as are proportioned to the injury resulting from the death to the dependants respectively ...
(2) In assessing damages payable to a widow in respect of the death of her husband in an action under this Act there shall not be taken into account the remarriage of the widow or her prospects of remarriage. ...
4(1) In assessing damages in respect of a person's death in an action under this Act, there shall not be taken into account any insurance money, benefit, pension or gratuity which has been or will or may be paid as a result of the death.
(2) In this section -
'benefit' means benefit under the enactments relating to social security, including enactments in force in Northern Ireland, and any payment by a friendly society or trade union for the relief or maintenance of a member's dependants,
'insurance money' includes a return of premiums, and
'pension' includes a return of contributions and any payment of a lump sum in respect of a person's employment".
For the purposes of this appeal it is important to notice the definition of "benefit." The statutory framework in this Act had if anything moved further away from the assessment of damages for personal injuries under the common law as amended by statute where benefits under the social security legislation, albeit to a limited extent, still had to be deducted from the damages. In Cookson v. Knowles [1979] AC 556, 568D, Lord Diplock expressed the view that the assessment of damages had "become an artificial and conjectural exercise."
The preamble to the Administration of Justice Act 1982 in its relevant parts reads:
"An Act . . . to amend the law relating to actions for damages for personal injuries, including injuries resulting in death . . ."
Section 3(1) substituted "en bloc" new sections 1-4 of the Fatal Accidents Act 1976. The relevant provisions of the new sections, namely 3(3) and 4 have already been set out in this judgment. The remaining subsections of section 3 carry forward provisions equivalent to those found in the earlier statutes, e.g. damages may be awarded as are proportioned to the injury resulting from the death (3)(1)), 3(2) a provision for relating to the costs not recovered from the defendant.
The problem is to decide whether in construing the new section 4 there is any justification for construing the words "benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded" as in any way being restricted or whether they should be given the full ambit of the word "otherwise". Mr. Clegg submitted that the specific exclusion of a widow's remarriage or prospects of remarriage from the assessment of damages provided in section 3(3) indicated that "otherwise" must be restricted in some way otherwise section 3(3) was otiose. He suggested that the exclusion should be restricted to direct pecuniary benefits. However, if this course is taken the word "otherwise" would not be sufficiently wide to reinstate the various rights to benefits which had been progressively introduced since the 1908 Act culminating in the sections of the 1976 Act which were wholly replaced by section 3(1) of the 1982 Act. As a result of the passage of this Act none of the pre-existing statutory exemptions from the deductions of benefits from Fatal Accidents Acts damage survived unless it is through the medium of the word "otherwise". It seems inconceivable that Parliament would have effected a wholesale repeal of all the long-standing previous statutory exceptions from the deduction of benefits by a side wind of this sort with the exception of the exclusion of the prospects of remarriage on the part of the widow (semble but not the widower). In my judgment, the preferable construction is that advanced by Mr. Ashworth, namely that section 3(3) was left in as being a particularly significant question of policy but that by section 4 Parliament intended to further the departure from ordinary common law assessment of damages for personal injuries by the artificial concept which has for many decades been the basis of damages recoverable under the Fatal Accidents Acts.
For the reasons I have just given I have come to the conclusion that the judge was correct in his decision that the benefits accruing to the minor as a result of his absorption into the family unit consisting of his father and stepmother and siblings should be wholly disregarded for the purposes of assessing damages. This, then, substantially disposes of the grounds of appeal as contained in the notice of appeal, namely that the plaintiff had suffered no loss or alternatively the minimal loss attributable to the short periods of time between his mother's death and his receiving benefits from the father's new family home with his step mother and the possibility of the benefit from this source being for some reason brought to an end which were assessed at the figures given by the judge. Mr. Clegg, however, argued that in any event the judge failed properly to take into account his own findings of fact as to the prospects of any substantial benefit which would have been enjoyed by the minor had his mother not died. This really was an attack either upon the multiplier or the multiplicand in the computation made by the judge based upon Spittle v. Bunney: see the passage already cited from the judgment. Mr. Clegg submitted that in assessing the value of the mother's services at £3,000 per year discounted against the smaller reliance placed upon her by the minor as he grew older and became a teenager, the judge failed in taking an overall multiplier of 12 years to represent his age up to 18 to make any or any proper discount for the real possibility that the mother might, as a result of her own shortcomings, not be available during the full period of 12 years. He relied upon the mother's record in relation to her earlier children and the findings of the judge as to the prospects that the minor had of enjoying any continuing or valuable support from his mother in the passage from the judgment I have already cited. This, Mr. Clegg submitted, called for a far more substantial discount either by reducing the multiplicand or, in my judgment more appropriately, the multiplier before reaching the figure which the judge in fact reached of £24,000. So far as the assessment of £5,000 for the loss of financial support which he might have received from his mother through her earnings, the judge reached this as an overall figure as a "jury decision" on the basis that her employment record would have been that of mainly part-time and casual work lowly paid. Mr. Clegg found greater difficulty in attacking this figure except on the basis of his attack in other respects, namely the real possibility that the mother would not be in a position to afford to provide this financial support.
Mr. Ashworth objected strongly to Mr. Clegg's arguments on the latter part of his appeal. The court considered that the attack on the £24,000 as a computed figure for damages did not fall fairly within the terms of the Notice of Appeal nor was it clearly adumbrated in the skeleton argument produced by the appellant. Accordingly, over the adjournment Mr. Clegg was put on terms to deliver a properly amended notice of appeal and on the second morning of the hearing the application to amend was argued. We decided to allow the amendment for two reasons which may be shortly stated. The first is that the appellants accepted all the findings of fact made by the judge and were prepared to be bound by them and, secondly, the issues raised were clearly apparent on the face of the judgment and subject to an adjournment to enable Mr. Ashworth to prepare his reply the amendment ought to be allowed in order that justice should be done between the parties. The main basis upon which Mr. Ashworth opposed the application stemmed not from any difficulty that he would experience in answering but from the position he had adopted vis-à-vis his own client having received the notice of appeal in advising them whether to oppose the appeal or to seek some compromise. These are matters which in the opinion of the court did not touch upon the attainment of justice between the parties by allowing the amendment but might very well be germane to any question of costs should the appellant succeed on this one issue not properly disclosed in the notice of appeal and fail upon the main grounds contained in that notice.
Mr. Ashworth, in replying to the issues raised in the amended notice of appeal, drew the court's attention to a number of passages in the transcript of evidence to support his submission that the picture which might be obtained from a superficial reading of the findings of the judge did less than justice to the mother. He submitted that looking at this evidence the mother was not untypical of a young mother with one failed marriage and that there was no reason to be certain that her attitude to her earlier family would be repeated in relation to her youngest child. Further, he pointed out that the father himself had a failed marriage and that the stepmother, Tracey, had lived with another man for five years but had kept care and control of her daughter.
Mr. Ashworth justifiably submitted that the evidence about the mother given by the father was unlikely to be biased in her favour but nevertheless the father made a number of admissions which were advantageous to the mother. At page 36A of the transcript of evidence, in answering the judge's question, "was she quite a good mother when she was at home?", the father said:
"If I put it this way to you, she had the chance to keep the marriage going when I found out about her adultery. She also had the chance to keep the children and the house. I offered her an open relationship. She didn't want it. She just ran out of the house. I didn't touch her or nothing".
Mr. Stallard also gave evidence about the short reconciliation which took place in the summer of 1983 and how the mother had left the children whilst he was away from the home when she returned to Blackpool. Notwithstanding the able submissions of Mr. Ashworth I was unable to detect any point at which the judge's assessment of the mother could be faulted. The possible exception to this was the judge's finding at page 5 of the transcript of the judgment that the minor's parents would ever have married and that his prospects would have been bleak both so far as care and financial security were concerned.
In the light of these findings and bearing in mind the point well made by Mr. Ashworth that the mother of necessity is being judged retrospectively five years later without the opportunity to demonstrate that like the father she would have matured, I consider that these are the prospects and possibilities all of which have to be taken into account when reaching an appropriate multiplier.
In the end, the assessment of the damages for loss of dependency, as apart from that element of the dependency which could be related to financial support, is a jury question. I have no doubt that the judge's computation was plainly too high and was on a wrong principle inasmuch as it omitted to make a proper discount for the real possibility that the mother would not have stayed with the family and that, therefore, this finding cannot be upheld on appeal. That having been said, the duty of the court is to do the best it can to arrive at some figure which a jury might well have awarded had it taken into account all the circumstances. I consider that such was the lack of steady prospect of support that the multiplier/multiplicand approach is, as the judge indicated at one point in his judgment, quite inappropriate although in the event he carried out an exercise of this kind. In carrying out an assessment on a jury award basis, I have reached a figure for loss of services at £10,000. This must be added to the figure of £5,000 for loss of financial support which the judge assessed, and which in my judgment cannot be disturbed on appeal. The total award of damages should, therefore, be £15,000. I would allow the appeal and substitute the figure of £15,000, subject to an appropriate adjustment for interest.
LORD JUSTICE RALPH GIBSON: The primary findings of fact of the learned judge have been stated by my Lord, Purchas L.J. I refer to primary findings of fact but, so far as concerns the learned judge's assessment of what the future services of the mother to the plaintiff would have been but for her death, they are more accurately to be described as conjectural estimates based upon findings of past fact: see per Lord Diplock in Cookson v. Knowles [1979] AC 556 at 568. The appellant's appeal on the factual issues, which the court allowed to be raised by an amended notice of appeal, was based upon those primary findings.
The first contention was that the plaintiff had failed to prove any injury resulting to him from the death of his mother; and that contention was based not upon what happened to the plaintiff after the death but on what would probably have happened if his mother had remained alive. In its alternative form, this submission was that the plaintiff's loss of services from his mother was confined to the period of about seven and a half months between the death of his mother and his being taken into the care of his father and Tracey, the father's new wife. The learned judge assessed damages for loss of services during that period at £500.
The original basis of these contentions was that, on the judge's findings, the mother would have abandoned the plaintiff and that, in consequence, the plaintiff would have gone into care at about the time of her death or shortly thereafter just as she had abandoned her three children by her husband when the youngest child was about 15 months old. That particular contention was, I think, misconceived and based upon what appeared to me to be a misreading of the passage in the judgment of the learned judge at page 5F where the judge said:
"Anyone considering the outlook for the plaintiff at the time of his mother's death would have come to the conclusion that the most likely outcome for his future was that he would be put into care. However, it was his father who came to his aid and looked after him in the months before he married Tracey".
Mr. Piers Ashworth, for the respondent plaintiff, informed the court that it had not been submitted to the learned judge at trial that the evidence supported the inference that the deceased would have abandoned the plaintiff at about the time of her death. There was then no home for the plaintiff in which he could be cared for upon the departure of his mother as there had been at the time of the desertion by the mother of her first three children. Very clearly the learned judge, in my view, did not find that the plaintiff would in any event have been abandoned by his mother at about the time of her death. The judge could not have proceeded to the conclusions which he reached if that had, in truth, been his view of the facts.
The next main submission for the appellant upon the facts was that, on the primary findings of fact made by the learned judge, the assessment of the value of the plaintiff's mother's services which she would have provided over the years following her death was plainly too high and unsustainable. He fixed the multiplier at 12 and set the rate at £3,000 per annum for the first four years: (2,000 per annum for the next four years; and £1,000 per annum for the last four years.
The process of reasoning of the learned judge in reaching those conclusions appears from his judgment to have been, in summary form, as follows:
(i) He assumed that the correct method of assessment was to assess the value in monetary terms of the mother's services;
(ii) As to the evidence of Mrs. Wasmouth, who runs an employment agency and had produced figures as to the earnings of a housekeeper, her agency dealt with "households of a very different social and economic background" from that to be envisaged for the plaintiff. On the facts as he had found them as to the indifferent quality of the plaintiff's mother's services, both to the date of her death and to be expected in the future, the yardstick of the cost of professional help was "unrealistic". (J. 6G).
(iii) It was equally unrealistic to adopt the hourly rate of a child minder in the neighbourhood of between £1.00 and El.50 an hour. It was to be borne in mind (see Regan v. Williamson [1976] 1 W.L.R. 306 and Mehmet v. Perry [1977] 2 A.E.R. 529) that a mother's services are not confined to the physical labour of being a nanny but extended beyond services of that kind and are not limited so far as hours are concerned. (J. 7A). The services needed by a child are "multifarious and may be greater in extent and better in quality than those provided by paid staff if provided by a natural mother". (J. 7E).
(iv) In assessing the value of the services provided by a mother numerous factors must be taken into account including the security and continuity of the provision of those services which will be much dependent upon the stability of her relationship with her spouse, the willingness and availability of the mother to render those services and the income of the household. A single parent "eking out an existence on social security benefits assisted by part-time and casual work" is likely to be under stress which may affect the quality of the services rendered.
v) This mother, on the balance of probabilities, was going to be much absent from home leaving her child with an unqualified child minder.
The judge then expressed his conclusion that it was appropriate to assess the value of the services of this mother to this plaintiff in the sums stated by him.
Although the learned judge said that the yardstick of the cost of professional help was "unrealistic" because of the indifferent quality of the services to be expected from the mother in future, it is necessary to note what that cost was shown by the plaintiff's evidence to be at the date of trial in order to understand what proportion of that cost is represented by the judge's assessment. For the first four years from the date of death on 24th March 1984 the probable earnings of a nanny/housekeeper net after tax and national insurance were shown to have been £2,663, £3,080, £3,672 and £4,000. The yearly average based upon those figures is, I think, £3,354 per annum. The figure of £3,000 per annum for the first four years is thus about 89% of the average cost of a nanny/housekeeper over those years. Mr. Ashworth submitted that the judge's figure of £3,000 was not by that calculation shown to be unsustainable because, he said, the cost of a nanny/housekeeper Rust in every case be, and was plainly in this case, increased **y an amount to represent the extra services beyond physical labour which a natural mother would provide and the extra hours over which services would be provided.
For my part, I cannot accept the assessment of £3,000 per annum for the first four years as a sustainable assessment of the value of the services of this mother upon the basis of the judge's conjectural estimates as to the quality of the services and as to the security and continuity of the provision of them to the plaintiff. There was no evidence such as was before the court in Regan v. Williamson where Watkins J. added a sum to the proved cost of a substitute carer to represent the extra value of the services of the deceased mother in that case. At page 309 Watkins J. said that the notion of a mother's services should:
"... include an acknowledgment that a wife and mother does not work to set hours and, still less, to rule. She is in constant attendance save for those hours when she is, if that is the fact, at work. During some of those hours she may well give the children instruction on essential matters to do with their upbringing and, possibly, with such things as their homework. This sort of attention seems to be as much of a service, and probably more valuable to them, than the other kinds of service conventionally so regarded".
The judge said nothing of such an addition, nor of any basis upon which it could be founded upon the evidence in this case. Mr. Ashworth is, of course, correct in saying that the sum of £3,000 represented the assessment of the judge based upon the reasoning which I have set out. He argued that we should not disturb the conclusion without some basis for saying that he had misdirected himself. He pressed upon this court the fact that, at the date of the death of the mother, the prospect then of the plaintiff's father providing a secure home or steady support for him were bleak but, in the events which happened, the plaintiff's father has settled down with a new wife in a secure marriage in which the plaintiff is and will be well cared °r. The judge was entitled, said Mr. Ashworth, in a most °9ent and skilful submission, to treat the deceased mother as having at least the same capacity for achieving responsibility with a new partner as that demonstrated by the father of the plaintiff* There is, of course, force in that point but its force is reduced by the fact that the learned judge said nothing of it and appears to have found nothing in the evidence to support such a basis of assessment.
What then should this court do? Mr. Clegg submitted that the value of the services of this mother was in fact assessed by the judge at a lower figure than £3,000 per annum for a period of time relevant to the first four years, namely the sum of £500 in respect of the loss of motherly services in the months after his mother's death before the plaintiff went to live with his father and Tracey (J.8G.). In that passage in the judgment, the judge, at the invitation of counsel for the appellant, assessed damages to be awarded upon the basis that the plaintiff's loss was limited to the period of months after his mother's death until he went to live with his father and Tracey after their marriage on 3rd November 1984. The period is something over seven months and the annual rate which can be derived from that figure of £500 for seven months is, I think, £857. Mr. Ashworth argued that that figure of £500 is not fairly capable of being applied for this purpose but I confess that I do not understand why it is not. There is nothing to suggest that the quality or continuity of the services to the Plaintiff were likely to change for the better to any substantial extent after the expiry of those seven months.
Further, the assessment of the security and continuity of the services which the mother would have provided, as entrusted with their quality if and when provided, would better reflected, in my judgment, in the multiplier to be applied. The multiplier of 12 selected by the judge was based, I understand his judgment, simply upon the period of time over which the plaintiff was likely to continue to be present and able to receive services if his mother remained willing and able to provide them, and upon the life expectancy of the mother. The only express reference by the learned judge to any factor relevant to the selection of the multiplier was to the "extreme infancy of the plaintiff at the date of his mother's death".
The learned judge, having regard to the probable course of the mother's future employment, namely one of part-time and casual work, lowly paid, considered it inappropriate to use the conventional approach of multiplier and multiplicand for the assessment of financial loss. He fixed instead the sum of £5,000 as a fair figure for the lost financial support. I would take the same course with reference to the loss of services. I have had regard to the sums awarded in such cases as Regan, and Spittle v. Bunney, upon the facts in those cases, and have taken into account the effects of inflation; and I have considered in draft the judgment of Purchas L.J. I agree that the lost value of the services which this mother would in probability have rendered to this plaintiff should be assessed in the sum of £l0,000.
As to loss of financial support, I think the award was Perhaps generous but I would not disturb it. There is no reference in the judgment to financial support from the mother iron her own national insurance benefits but the judge would Rave had them in mind as well as support from the uncertain earnings which the mother might have received over the years.
In the result, subject to the points of law advanced for the appellant, I would allow this appeal to the extent of substituting the sum of £15,000 for the judge's total award of £29,000.
As to the point of law, based upon the construction of section 4 and of section 3(3) of the 1976 Act as amended, I was at first inclined to the view that the concept of "benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death" must be held not to extend to the effects of remarriage which are covered specifically by section 3(3) to the extent there provided. I have, however, with no great confidence that we have correctly understood the intention of Parliament as expressed in these provisions, reached the conclusion that the preferable construction is that expressed by Purchas L.J. for the reasons given by him.
SIR DAVID CROOM-JOHNSON: For the reasons given in the judgments of Purchas and Ralph Gibson L.JJ. I also would allow this appeal and agree with the substituted figure for damages.
Order: Appeal allowed, ordered varied, with costs of appeal and legal aid taxation; leave to appeal to House of Lords refused.
