Charlotte Marie Keating v Ali Abdisalan & Anor

Introduction

On 20 February 2022 Stephen Birtles and his wife Geraldine were struck by a car being driven by the First Defendant. Mrs Birtles died immediately. Mr Birtles died on 4 March 2022, some 12 days later having never regained consciousness. They had one daughter, Nicola who was born on 27 September 1984. The First Defendant was an uninsured driver. The Second Defendant will ultimately be responsible for meeting the damages claim.

The claim was commenced on 13 February 2025 and is brought by the executor of the estate of each of Mr and Mrs Birtles for the benefit of Nicola (a dependent) under the Fatal Accidents Act 1976 (“the 1976 Act”) and on behalf of each estate under the Law Reform (Miscellaneous Provisions) Act 1934 (“the 1934 Act”).

This judgment deals with the Second Defendant’s application to strike out two aspects of the damages claims brought on behalf of Mr Birtles’ estate. The first is a common law claim for loss of the right to claim bereavement damages. The second relates to the cost of the provision of services which, had she not died, Mrs Birtles would have provided to him had she not died. The former claim is in the sum of £15,120 fixed by section 1A of the 1976 Act. The latter is in the sum of £538,485.60 calculated as the cost of employing a housekeeper for the period during which Mrs Birtles would have lived.

Each of these claims is said to have passed to Mr Birtles’ estate by operation of section 1 of the 1934 Act because it was vested in Mr Birtles at the point of his death.

Strike Out

The application to strike out was issued on 2 April 2025. There is no application for summary judgment.

I remind myself that by CPR 3.4(2), I may strike out part of a Statement of Case if it appears that (amongst other reasons) the Statement of Case discloses no reasonable grounds for bringing or defending the claim. CPR PD 3 paragraph 1.2 provides that strike out may be appropriate where the Particulars of Claim (read with the relevant schedule of loss) “contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.”

Mr Hogarth, who appears for the Second Defendant, submits that those parts of the claim subject to the strike out application are bound to fail as a matter of law.

I accept that, for the purposes of a strike out application, I should consider the content of the document to which the application relates and take it at its highest. I also accept that if the matters of law relied on are developing or if the success of the relevant parts of claim might depend on factual findings at trial, that I should not grant the application.

Relevant Statutes

Section 1A of the 1976 Act provides as follows:

Section 1 of the 1934 Act provides as follows:

Submissions

Mr Hogarth submitted that the bereavement award claim is prohibited by section 1(1A) of the 1934 Act. That section operates as an exception to the general rule (set out in section 1) that a cause of action vested in the deceased at the point of death will pass to his estate. Thus, even though, at death, Mr Birtleshad a right to such an award, that right cannot be passed to his estate and dies with him.

As to the more substantial loss of services claim, Mr Hogarth says that the 1934 Act does not create new causes of action but allows only for the transmission of existing causes of action. Mr Birtles had no such claim at the moment of death and so there is no claim to pass on.

He also draws my attention to some of the “lost years” authorities. In particular to Gammell v Wilson [1982] AC 27 at page 71 and to the speech of Lord Fraser. In that case the House of Lords (as it then was) upheld awards for the loss of disposable income (or “free balance above the cost of maintaining himself”) that would have been available to the deceaseds had they not died. The claims were brought under section 1 of the 1934 Act and so the damages were payable in each case to the deceased’s estate. In each case the deceased was a young man “with no established earning capacity or settled pattern of life”. This led Lord Fraser to note that where there was already statutory provision to compensate the deceased’s dependents, it was “difficult to justify” allowing payment of future earnings to the estate. Such damages may well go to persons who were not dependent on the deceased. Lord Fraser thought the assessment of such damages was so “extremely uncertain” (it being “hardly possible” to estimate future earnings and “quite impossible” to arrive at “free income”) that the process could hardly “be dignified with the name of calculation”. He called for this “unhappy state” of the law (derived from the House of Lords earlier decision in Pickett v British Railway [1980] AC 136) to be corrected by legislation. Section 1(2)(a)(ii) was inserted into the 1934 Act thereafter.

Mr Hogarth invites me to conclude that the House of Lords’ main concern was that the “free income” could be paid to someone (the beneficiaries of the estate who might include institutions) who had suffered no loss (in short non-dependants). The difficulties with the assessment or calculation simply compounded that issue, they did not create freestanding issues.

Mr Hogarth invites me to conclude (if the cause of action survives death) that I should treat the future services claim advanced by Mr Birtles’ estate in the same way as a claim for future income. In other words (if the claim to services was vested at death), it should in any event not pass because such a result would also put the law in an “unhappy state”.

Further, he submits that the law does not generally award compensatory damages unless a loss has been suffered. He gave the example of Williamson v Thornycroft [1940] 2 KB 658. In that case a widow made a claim in respect of the death of her husband. She died 14 months after his death and before trial. Her claim passed to the estate under section 1 of the 1934 Act. At first instance, the trial Judge awarded damages calculated at the date of the husband’s death and ignored the widow’s death. The Court of Appeal overturned that decision. Scott LJ said:

“In my view the judge took an erroneous view of the date at which he ought to assess the damages in this case. He looked back to the date [of death of the husband] and gave the plaintiffs…damages representing not the actual amount which the widow last joined the 14 months of her widowhood, but a sum based upon her whole expectation of life at the date of her husband's death. It is quite true that the measure of damages has to be assessed as at that date, but courts in assessing damages are entitled to inform their minds of circumstances which have arisen since the cause of action accrued and throw light upon the reality of the case. It seems to me wholly wrong to say that where a death which involves the liability of a third party has occurred, as in this case, some years before the assessment of damages by the court, the court ought to shut its eyes to the fact that one dependent has had only a short tenure of life before death put an end to her dependence.”

The Second Defendant submits that this decision is authority for the proposition that dependency damages reflect actual dependency not notional dependency assessed on the basis that the widow remained alive. This is an important point because (as is common ground between the parties) at death, Mr Birtles had suffered no dependency loss.

Mr Exall drew my attention (at least in writing, sensibly in oral submissions he did not labour the points) to what he felt were procedural improprieties. I need not list them. The main issue was that the witness statement in support of the application contains very little other than legal argument. I do not regard that, or any other perceived misstep, as a fatal flaw in the application.

He went on to submit that the decision of the Court of Appeal in Haxton v Philips Electronics UK Limited [2014] 1 WLR 2721 was central to the claim. In that case Mr Haxton had worked for the Defendant and died in 2009 as a result of negligent exposure to asbestos. Mrs Haxton was diagnosed with mesothelioma in 2012 as a result of contact with her husband’s work clothes. She issued two claims. In the first, which followed her diagnosis, she claimed damages against the Defendant as a dependent of her husband. Her dependency claim was limited to 0.7 years because, as a result of the mesothelioma, that was her agreed life expectancy. She issued a second claim, this time in her own right for damages for personal injury suffered by her as a result of the Defendant’s negligence, this time claiming damages for the diminution in value of her dependency claim. It had to be limited to 0.7 years, but it should have been a claim over the rest of her lifetime had she not been living with mesothelioma.

The Court of Appeal allowed an appeal against the dismissal of her second claim. The headnote provides as follows: “where a claimant’s rights under the Fatal Accidents Act 1976 to recover for loss of dependency was diminished in value as a result of negligence which reduced the claimant’s life expectancy there was no reason why the diminution in value of that right could not be recovered as a head of loss in a personal action brought by the claimant.”

Mr Exall relied on the headnote as an accurate summary of the decision and suggested that it supported his case. He submitted that the only reasons that Mr Birtles was unable to pursue the future dependency claim was that he died and that was as a result of the Defendant’s negligence so the Defendant should not get a windfall from it.

He also submitted that this is a developing area of law and drew my attention to the fact that the Supreme Court is expected to give judgment soon in the case of CCC (by her litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust (with case ID UKSC/2023/0111). That case summary includes this:

“The parties agreed that the trial judge, Ritche J, was bound by the decision of the Court of Appeal in Croke v Wiseman [1982] 1 WLR 71, which prohibited him from making any award of damages for lost years in the case of a young and severely injured child. The Appellant maintains that this authority is inconsistent with previous authority from the House of Lords and claims £823,506 for lost years in addition to £224,000 for loss of earnings.”

As a term of art, “lost years” claims are claims for loss of income after the projected date of death. Such claims are particularly problematic where the claimant is a child for the reasons highlighted by Lord Fraser and cited above. The real issue in CCC appears to concern the correctness or otherwise of the decision in Croke v Wiseman and to concern lost years claims (loss of income after the expected date of death).

I did not understand Mr Exall to press for the bereavement claim not to be struck out.

My conclusions

I am satisfied that the claim for the lost opportunity to pursue a bereavement claim should be struck out. It has no prospect of success. Mr Birtles had such a claim at the point of death (it did not require proof of loss, and it was vested in him) but the effect of section 1(1A) of the 1934 Act is that the claim cannot be passed on. No doubt that statutory provision reflects the personal nature of the award which is only available to a small class of dependants.

As to the lost opportunity to bring a substantial claim for lost services in my view that claim must also be struck out. I prefer the arguments advanced by Hogarth for reasons I now set out.

First, I am satisfied that no such claim was vested in Mr Birtles when he died. At death he had suffered no loss (in the sense recognised by the law and beyond bereavement) as a result of the death of his wife. That is clear from the pleaded case. Mr Exall advances no claim to damages to loss of services in the 12 days Mr Birtles survived. If there was a claim at death it would be limited to those 12 days in accordance with the approach taken in Williamson v Thornycroft; if the matter came to trial the court would wish to ascertain what loss had actually been suffered. The court would not engage in a fictional exercise of assessing loss that has not been suffered.

Mr Exall’s reliance on Haxton is misplaced. Mrs Haxton was entitled to claim, as part of her personal injury damages, a top up of the award she had already received. The new claim was compensatory because it would reflect what would have happened had her life expectancy not been curtailed. Mrs Haxton’s loss in my view was suffered when she was awarded (or agreed to accept) dependency damages based on a reduced life expectancy. By the time she made her second claim (she remained alive at the Court of Appeal hearing) her loss was clear and in the past. The Court would simply have looked at the difference between the actual award and what the award would have been had she had a full life ahead of her. The judgment does not deal with that process because damages were agreed.

Mr Birtles’ case is different. Unlike Mrs Haxton his claim was based on losses he was yet to suffer. The true consequence of Mr Birtles’ death was that he had no opportunity to suffer the loss for which he claims damages. It would be wrong to compensate Mr Birtle’s estate for a loss which he did not in fact suffer. There has been no “diminishment” of his loss as there was in Hoxton.

I am not satisfied that the Supreme Court decision in CCC will make any difference to this claim. I am not satisfied that there are any factual determinations that would make any difference to my conclusion. The law in my view is not developing in this area. The services claim must go because there is no loss and because no relevant claim was vested in Mr Birtles when he died.

I would not have accepted Mr Hogarth’s point that section 1(1A)(a)(ii) of the 1934 Act (which deals with income) would have prevented this claim from passing to Mr Birtles’ estate. There is, however, no need to deal with the point. It does not fall to be decided because the precondition of its application (that a claim survived) is not met.

Disposal

I am grateful to both counsel for the care with which the arguments have been presented. The argument may have appeared to ignore the human tragedy that lies at the heart of the case, that appearance is misleading and wrong. No one familiar with the facts of the case could fail to be moved by the very sad circumstances which bring this matter to court.

Despite that I must deal with the application on the law. For the reasons I have given the relevant parts of the claim set out in the application must be struck out.