Graham Burgess v Dominik Sikprski & Anor

Michelle Griffiths lived a life devoted to the wellbeing of others. Professionally, she worked as a carer. Domestically, she took the lead in running her household and, along with her husband Ian, she provided care and support for their two adult children Aaron and Matthew. Both Aaron and Matthew have learning disabilities and Aaron additionally suffers from epilepsy.

On 11 March 2021, when Michelle was 53 years old, her life was tragically cut short. The First Defendant (an employee of the Second Defendant) reversed his vehicle up a residential cul-de-sac when Michelle was crossing the road. Inadvertently, his vehicle struck her and she sustained fatal injuries.

Michelle’s brother, Graham Burgess, has brought proceedings on behalf of her estate and her dependants under the Law Reform (Miscellaneous Provisions Act) 1934 (LRMPA) and the Fatal Accidents Act 1976 (FAA).

The parties have engaged commendably to narrow the issues in dispute. Liability has been accepted by the Defendants subject to an agreed 30% discount for contributory negligence (which the Court has approved). Damages under the LRMPA have been agreed, and most damages under the FAA have been agreed.

The remaining dispute is narrow in scope but in some respects not straightforward. It concerns the appropriate award for “services dependency”. I heard a trial over 3 days commencing on 20 April 2026 and this is my judgment. The issues I have to decide are as follows:

All the family members were referred to at trial by their first names and Aaron and Matthew were referred to collectively as “the boys” even though they are adults. I adopt the same practice in this judgment (save that I refer to Graham sometimes as the Claimant when talking about his formal role in the proceedings), without intending any disrespect to any of them.

Unless otherwise indicated, all figures stated in this judgment are the full amount to which the dependants would be entitled (i.e. prior to the 30% discount for contributory negligence).

The FAA provides for claims for damages by dependants (as defined) of the deceased. Section 3 relevantly states:

As noted in O’Louglin v Cape Distributions Ltd [2001] EWCA Civ 178 at [11] (Latham LJ):

“This provision replicates, though not in precisely the same words, the basis upon which damages have been assessed since the passing of the Fatal Accidents Act 1846. The task of the court, in answering this question was originally the province of the jury. Neither successive statutes nor, in my judgment, any decisions of the courts lay down any prescriptive method by which such damage is to be identified, or calculated apart from the principle that it requires that some damage capable of being quantified in money terms must be established.”

An assessment under s3 is therefore sometimes referred to as a “jury question”, but that does not suggest a cursory or arbitrary approach (which would be an insult to juries). Rather, it reflects the fact that there is a range of reasonable approaches and that mathematical precision cannot be obtained. My task is to establish “the loss of a benefit in money or money’s worth, which if the deceased had survived, would have accrued to a person within the defined relationship to the deceased, and would have arisen from that relationship and not otherwise”: Malyon v Plummer [1964] 1 QB 330 at 349 (Diplock LJ). Assessing the “value of the dependency”, as it is sometimes put, requires me to determine the nature and extent of the services the deceased would have provided to her dependants but for her death and then to consider how those services might reasonably be replaced by someone else and at what cost: see Clerk & Lindsell on Torts (24^th edn) at 26-101.

I address further points arising from the case law, as necessary, below.

Ian and Graham adopted their trial witness statements and were cross-examined. Graham’s wife Penny had also provided a witness statement, the contents of which were not challenged. They were all seeking to assist the court and gave evidence, to the best of their knowledge, about how Michelle had provided for the family prior to the accident and how the family had adapted since. I explain below how I have resolved the (fairly minor) inconsistencies between their evidence.

There was also a significant amount of documentary evidence. In particular, I found valuable:

Each party had permission to call expert evidence on loss of services. The Claimant relied on a report of Linda Aitken dated 27 August 2025; the Defendant relied on a report of Jean Phillips dated 19 June 2025. In the usual way, the experts met before trial and produced a joint report dated 30 January 2026.

Mrs Aitken is a specialist occupational therapist for Fife Child and Adolescent Mental Health Service with over 30 years’ experience in that field. Although she worked with adults in the 1980’s her regular work has focussed on children. She has acted as an expert witness since 2007, preparing many reports including Loss of Services reports in FAA claims in respect of both adult and child dependants. She wrote her report following a 2.5 hour in-person visit to the family home, where Ian, Graham, Matthew and Aaron were all present. She had seen the trial witness statements and much of the documentary evidence before writing her report.

Ms Phillips is a state registered occupational therapist with over 30 years’ experience working for statutory services, charities and the private sector. She too is an experienced expert witness, acting as such since 2017. She based her report on a remote interview she conducted with Ian and Graham on 6 June 2025 lasting 1.5 hours. She did not have access to the trial witness statements or much documentary evidence before she wrote her report but confirmed that she had considered it before the joint report and that it did not change her assessment based on the information she was given at the interview.

Ms Wolstenholme reminded me of the helpful summary of how to approach expert evidence given by Green J in C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB) at [25], which I have taken into account but do not need to set out here.

Each of the two experts was trying conscientiously to assist the court. I relied on each of their reports on certain discrete issues, and on others adopted a middle way between them. However, on the major issue which divided them, I preferred Ms Phillips’ evidence (subject to some qualifications). That issue concerns the nature and extent of care that Michelle was providing to Aaron and Matthew by reason of their learning difficulties and Aaron’s epilepsy, and how that care is best replicated in the future. I found Ms Phillips’ evidence to be generally more helpful and reliable on this issue for the following reasons:

The parties also relied upon expert evidence, from respectively Jemma Morland and Jane Bennett, on the costs of using deputies to manage any sums awarded to Aaron and Matthew. Before trial, they had agreed that professional rather than lay deputies would be needed and they had reached agreement on the costs that would be involved. However, this was, as I understand it, on the assumption that the awards for the boys would be in the region of the sums being sought by the Claimant. Very helpfully, in the course of the trial, they had a further discussion and filed further evidence addressing the position if I were to award the sums being proposed by the Defendants (but nevertheless apportioned them so that Aaron and Matthew would receive more than £100,000 each). They did not change their opinion that professional deputies would be required. Their further evidence allowed counsel to agree figures on the two alternative scenarios (subject to some arguments about proportionality).

I make the following findings of fact. For the most part they emerge from the undisputed evidence. Where the witness evidence at trial diverged from the factual basis set out in the experts’ reports, I have preferred the former, which was given on oath and tested in cross-examination. Where I have had to resolve other evidential disputes, I give brief reasons below.

Michelle was in good health. The Court refused to permit expert evidence on life expectancy, so I must assume that she would have lived to 87 (the relevant age given in the Ogden Tables) and that her physical and mental powers would have decreased in her later years, as they do for everyone. I cannot be more specific. She had been married to Ian for more than 30 years.

Michelle worked as a senior carer at a local care home. Her regular hours were 9am-2pm. She would walk to work, leaving home around 8.30am and returning around 2.30pm. She would also do overtime at weekends. Although Ian described this as occasional, Michelle’s pay records for 2019 (the year before Covid disrupted normal working patterns) indicate that, though variable, it was probably quite frequent (in May 2019 for example, after her promotion to senior carer, she appears to have worked around 20 extra hours). I find that she would have returned to this working pattern after Covid, but for the accident.

Michelle enjoyed shopping and spending time with her family. She did not have any time-consuming hobbies.

Ian is 61 and the Ogden Tables indicated that he is expected to live to just short of 85. He works as a machine setter (and did so at the time of the accident). His hours are 7am-3.30pm Monday to Friday and his workplace is about 10 minutes walk away, so he would be out of the house on weekdays from about 6.50am until about 3.40pm.

Ian can read (though he struggles to understand some more complicated correspondence) and is financially capable (though not financially sophisticated). I return to this below.

Aaron was 30 at the time of the accident. Aaron has a moderate learning disability. He has never been employed. His understanding of financial matters is very limited: he knows what simple things cost and can use a bank card but he cannot keep track of what is in his bank account. He can communicate verbally but not very fluently and he needs patience and reassurance. He uses a mobile phone for calls but cannot text. He knows how to prepare simple food like tea, toast and sandwiches. He has friends and will sometimes go to the cinema with them (they pick him up and drive him). His 2019 PIP assessment indicates that his learning disability means that he needs help managing his medication, communication support, help with reading and help with budgeting decisions. He has an annual check-up with his GP because of his learning disability.

Aaron also suffers from epilepsy for which he takes medication and has annual reviews with a consultant neurologist. His condition is reasonably well-controlled. In the record of Michelle’s call to the PIP assessor, she describe his seizures as occurring without warning and consisting of him “freezing” for up to a few minutes and then being disoriented for up to ¾ hour afterwards. A consultant’s letter I was shown from 2020 recorded him as having had 3 major and 9 minor seizures over the previous year (Michelle’s description probably matches a “minor” seizure). His PIP assessment records that, because of his epilepsy, he needs supervision when preparing food, taking nutrition, washing and bathing and going out.

Apart from his learning disability and epilepsy, Aaron is healthy and needs only routine medical appointments such as vaccinations.

Matthew was 28 at the time of the accident. His learning disability is less severe than Aaron’s but still classed as “moderate”. He has greater (but still limited) understanding of his finances and he too has some communication difficulties. Matthew has never claimed disability benefits though he is on universal credit because of his lack of employment. He has done some paid work in the past – most recently a little in the way of gardening or odd jobs at the care home where Michelle worked but, since early 2020, he has claimed Carer’s Allowance on the basis that he spends at least 35 hours per week providing care to Aaron (the statutory precondition for that benefit). As Mr Crowther pointed out, that does not mean that Matthew was providing particularly sophisticated care. Given Aaron’s needs and Matthew’s own limitations, it is likely to have consisted largely in assisting Aaron at home and accompanying him outside. He knows, for example, how to spot the signs that Aaron is having a seizure and what to do. Matthew has some basic cooking skills.

Aside from his learning disability, Matthew is fit and well and would only attend routine GP appointments such as vaccinations.

In describing Aaron and Matthew in these terms, I have preferred the assessments on the COP 3 forms (prepared by professionals for the Court of Protection) to certain more anecdotal witness evidence, and I have preferred the PIP assessment form for Aaron to the information stated in the PIP application form by Michelle, since the former is more likely to be objective. As already indicated, I was not assisted by Mrs Aitken’s “broad brush” impression of the boys’ capacity.

Matthew and Aaron do (and did) a great deal together. Between them they can make themselves breakfast and light lunches like sandwiches and they can warm up microwave meals. They go out together almost every day, either walking or taking a local bus to Darkes Lane, a nearby area where there a number of shops and cafes (they would need help to go further afield). For a couple of years, until it closed down, both of them did voluntary work together in a charity shop for 2 hours per week. They visit cafes and shops to buy things like drinks and snacks, clothes (t-shirts and hoodies), vapes etc.

On one occasion, Michelle and Ian went on holiday to Tenerife, leaving Matthew and Aaron on their own in the family home. Before going, they had left the boys 10 days’ worth of microwave meals and had left dosette boxes pre-filled with Aaron’s medication for the whole period. While they were away, they face-timed their sons 3 times a day to check everything was ok, and Michelle’s mother also popped in to check on them daily and sometimes stayed the night. They did not get into any difficulties.

The family lived together in a rented 3-bedroom house along with a pet dog and cat. Outside Michelle and Ian’s work hours they did almost everything together including going out and dealing with household chores. All four of them contributed to the chores but Michelle was “the boss”, directing the others to do what needed doing.

Michelle managed the household finances (she and Ian had a joint account) and dealt with correspondence.

Michelle organised a full clean of the house at weekends, delegating tasks to the others, and would go round to inspect their work and redo it if it was not up to her standards.

Michelle would do the laundry but leave others to put their clothes away and do any ironing (which she didn’t like).

Michelle would cook the main meal of the day but the boys would help with washing the dishes.

Michelle would sort out the recycling and put the bins out.

Michelle planned a weekly supermarket shop and they all went and did it together at the weekend, with the boys carrying the shopping back and helping her put it away.

The family shared looking after the pets, with Michelle walking the dog at the weekend and the boys doing it during the week.

Michelle would cut Ian, Matthew and Aaron’s hair every 5-6 weeks, although sometimes they would want to go to the barbers in which case, Ian would take them there for all 3 to have a haircut (a qualification that emerged in Ian’s oral evidence).

Michelle and Ian would do decorating together. Ian confirmed in oral evidence that Michelle’s involvement went beyond making colour choices etc and included contributing to the physical work.

Michelle would organise birthdays and Christmas celebrations, making sure that everyone got money or a gift and she would arrange family days out for everyone.

At the time of the accident, the family anticipated that life would go on in this way. They had never discussed the possibility of Matthew and Aaron living elsewhere, or what might happen as Michelle and Ian aged.

As well as contributing to the household in the ways I have described, Michelle also gave additional support to her sons because of their learning disabilities and Aaron’s epilepsy. She would tell them to get up before leaving for work and check that they had whatever they needed for the day. She would put Aaron’s medication in a dosette box (Matthew could not do this, but could prompt and supervise Aaron to take his medication once organised). She would oversee the boys’ bank accounts. She would fill in benefits forms and communicate with the DWP on their behalf and she would take them to their medical appointments. She would buy them clothes (though they also bought their own). She also tried to make sure they were stimulated and had fun. She once took Matthew to a Westlife concert for example. That trip and the boys’ individual medical appointments were the only instances I was given of occasions when she went out with them individually. I formed the impression that usually she attended to them both together.

I disregard the immediate aftermath of the accident, which must have been terrible for everyone, and the particular administrative and legal complications arising out of it (which Mr Burgess has largely been handling for the family). I concentrate on how family life has been since things settled down again.

Ian has continued to work the same hours as before, and therefore leaves the boys alone for some 8 hours and 20 minutes a day. He has installed a ring doorbell so he can see who comes to the door and he is permitted to answer his phone at work so that the boys can call if they need assistance.

Ian now cooks the main meal himself and he and the boys share the other household chores, with Ian taking the lead and organising things like the weekly clean and supermarket shop.

Ian keeps an eye on the boys and prompts and reminds them to do things. He manages Aaron’s medication, filling his dosette box up weekly and setting reminders on Aaron’s phone, and he arranges Aaron’s medical appointments.

Ian has taken over dealing with Christmas, buying Christmas food and gifts (as evidenced by his bank statements for December 2022).

In 2023 Ian took the boys on a coach holiday to Yorkshire that he arranged.

Ian now has his own bank account – a current account which has remained in credit and shows no signs of ill-advised spending. On the contrary (a point Mr Crowther made to underline Ian’s lack of financial sophistication), the balance is very healthy because Ian has received life insurance and pension money from the estate, but has not thought to invest this elsewhere. Graham helped him set up the account and put direct debits in place for regular bills.

Graham and his wife visit a couple of times a week and Graham assists with paperwork and finances, including the boys’ benefits correspondence.

Ian has less time to do household maintenance and gardening than previously, because of the additional family responsibilities he has taken on, and he has taken days off work to keep on top of everything, sometimes to the point of running out of his annual holiday allowance.

In making these findings about how the family has been coping since the accident, I have discounted certain aspects of Graham’s evidence. I accept, having watched Ian give evidence, that he is someone who is likely to put a brave face on things and may have a tendency to understate the difficulties he faces (and even in his own witness statement, Ian wrote “I feel sometimes I’m falling short…We are struggling a bit”). However, the picture that Graham painted of someone struggling very greatly with practical and financial matters is not based on day-to-day knowledge of life within the household, and Ian’s account of generally coping well is corroborated in many respects by objective evidence.

Thus, Graham stated “The house isn’t clean and Ian hasn’t kept on top of taking the boys shopping for clothes, or himself. They are still wearing clothes they’ve had since the accident and they areill-fitting and worn out”. However, Mrs Aitken accepted that the house was not in a mess when she visited; Ian identified entries on the boys’ bank statements showing them buying clothes for themselves from charity shops, and entries on his own bank statement showing him paying for shoes and shoe repairs. Similarly, while Graham and his wife may well be right to suggest that Ian is not as attentive to things like Christmas and birthdays as Michelle used to be, he confirmed that entries on his bank account showed him going to considerable lengths to buy food and presents for Christmas in 2022.

As to Graham’s concerns about Ian’s literacy and financial understanding (he said things like “I’m not sure Ian understands money very well” and “I do wonder whether he struggles with reading”), I have to set these alongside my own observations of Ian as he gave evidence. He was cross-examined at length on many documents, including his own bank accounts and those of the boys, and was able to read everything he was shown and give clear explanations. And although Mr Burgess helped him set up his bank account and direct debits, Ian now manages to operate the account effectively on a day-to-day basis. He also arranged and purchased the holiday to Yorkshire and he gave evidence that at one point since the accident he bought himself a motorbike but then decided that he was not using it enough to make it worthwhile and therefore arranged to sell it.

So, while Ian himself recognises that he is not a good reader and relies on Mr Burgess for help with paperwork and finances, the extent of that reliance should not be overstated. As already explained I did not gain any assistance from Mrs Aitken’s impressionistic view that Ian “has a degree of cognitive impairment”.

Although the evidence of Graham’s wife was not challenged, I have - similarly to my approach to Graham’s evidence – placed less weight on it where, occasionally, it painted a picture of Ian struggling to a greater extent than was suggested by Ian’s own evidence, where that evidence was corroborated by documents.

There are two main aspects to consider. First, how are the services I have found that Michelle would have been providing to her dependants best translated into hours. Second, what hourly rate should be ascribed?

The Claimant, relying on Mrs Aitken’s evidence, contends that, except for 2 weeks on holiday each year, Michelle would have been spending 24 hours per week on household tasks, plus 14 hours a week of care for each of Aaron and Matthew. Mr Crowther referred me to a comment by Bean J in Knauer v Ministry of Justice [2014] EWHC 2553 (QB) at [28] that “the figure of 20 hours is if anything an underestimate” of the time the deceased (described as a houseproud wife) would have spent per week on household tasks excluding gardening and decorating.

The Defendants, relying on Ms Phillips’ evidence, contend for a total of 20 hours per week, consisting of:

Translating past services (which will vary from week to week and sometimes overlap) into hours is inevitably an imprecise exercise but, based on my findings of fact, the expert reports and my preferences concerning the expert evidence, I arrive at a figure that is much closer to that proposed by the Defendants. I would award 26 hours per week in total. Because it will assist when I come to considering questions of apportionment and future loss of services, it is convenient to break this down into services provided to the household as a whole (for which I allocate 18 hours per week) and additional services provided specifically by reason of Aaron and Matthew’s special needs (8 hours). My reasons are as follows.

As to ordinary domestic and household services, my findings above demonstrate that the family’s approach to household chores was very much one of collective endeavour. Michelle mucked in alongside the men of course, but above and beyond that, the only unique contributions she made were cooking the main meal of the day, organising and directing the other tasks, and managing the household finances.

There are a number of things that, I have found, Michelle did for the family but which are not, or not explicitly, addressed in Ms Phillips’ report or captured in her table: cutting the men’s hair, helping Ian with decorating tasks, walking the dog at weekends, sorting the recycling and putting the bins out. Some of these tasks were infrequent; some of very short duration. Nevertheless, bundling them in under “other tasks” would result in that item having to be increased somewhat.

By contrast, Mrs Aitken’s estimate of 24 hours per week for domestic services alone fails adequately to reflect the family’s collective contribution to household chores and is unreasonably high. Bean J’s observation about Mrs Knauer do not assist because he also observed that the Knauers “were an old fashioned couple, in the sense that the division of labour in their household was as it might have been in the 1950s” with Mrs Knauer single handedly doing everything except occasional repairs. That bears no comparison with the Griffiths household.

The Claimant’s schedule of loss seeks, in addition to hours per week for general domestic care, further sums for “household maintenance” which are said to reflect Michelle’s assistance with decorating and the work she did dealing with family finances and administration. Mr Crowther did not press this head of past loss very hard and, in my judgement, these matters are already adequately reflected in the 18 hours I have allocated.

As to care for Aaron and Matthew, Mrs Aitken’s assessment of 2 hours per day per son does not reflect the reality of how Michelle was meeting their needs, as I have found it to be.

Both Ian and Graham expressed the view that the boys “could not live independently”. Insofar as that suggests that they would get into difficulties if living alone without any supervision, prompting or help with tasks like medication and paperwork, I would agree. However, the boys, taken together, were a largely self-sufficient unit: they washed and dressed themselves, got themselves food during the day, went out and about (staying within the comfort zone of the local area), bought the things they wanted, and so on. Matthew was trusted to look after Aaron in their parents’ absence (to the extent of claiming carer’s allowance for the services he was providing). They were left alone for long periods on weekdays and were without Michelle at the weekend if she was working overtime. What Michelle brought to the boys, as well as some specific assistance (sorting out Aaron’s dosette box, dealing with medical appointments and benefits claims) was largely in the form of structure, support and stimulation. That is hard to evaluate in hours, but it is clear that it was delivered in quite a light-touch way, as evidenced by the fact that she and Ian were content to go to Tenerife for 10 days, just checking in on the boys by video and with her mother popping in occasionally. There is no suggestion that the boys got into difficulties during that time, or during the many other hours they spent every week without their parents.

Further, Ms Phillips makes the good point that, as a busy wife and mother, Ms Phillips will have multi-tasked. Much of the light-touch support for the boys will have been provided alongside her general domestic tasks (with which they assisted her) and will generally have been provided to both of them at the same time, since they seem to largely do things together. Adding two hours per day for each boy on top of normal domestic chores, as Mrs Aitkens did, therefore strikes me as excessive.

Ms Phillips herself may have also overestimated in figures she has given exclusively for Aaron, given that loading a dosette box is a quick task and that it would appear that he was only actually having a seizure on average about once a month. In other areas however, I find that she has somewhat underestimated the additional time Michelle would have spent on the boys because of their needs. In particular, the evidence is that she took them out shopping a couple of times a week, which might overlap somewhat with “shopping/errands” but probably deserves greater recognition; and dealing with benefits and corresponding with the DWP can be extremely time consuming. PIP forms, for example, do not need filling in particularly often, but require a great deal of input when the time comes; keeping the DWP informed about matters relevant to Universal Credit and Carer’s allowance (which she will have done for Matthew) can also be a significant demand on time. And finally, I think some additional allowance is needed to reflect the fact that Michelle will have been engaged in supervising/supporting the boys to an extent, even when not engaged in a specific activity for their benefit or while doing other chores. That is why I have arrived at an extra 8 hours per week for Michelle’s services to the boys.

My task is to ascribe a reasonable value to the 26 hours of services that Michelle would have provided to her dependants up to the end of trial, but for the accident. The parties are agreed that I should use one of the rates for home helps set out in the National Joint Council Payscales, Spinal Point 2 (formerly Spinal Point 8).

Ms Phillips set out figures for the “basic rate” and “day aggregate rate” stating that in her experience these are the rates used by the court. Mrs Aitken referred me to the “inclusive day rate”. The differences, as they were explained to me, are that the basic rate concerns care given during normal working hours on weekdays, the higher “day aggregate rate” includes work done outside those hours and at weekends (but not at night), and the higher still “inclusive day rate” takes account of bank holidays and 3 “hard to fill days”, e.g. Christmas Eve.

I was referred to the “Care and Attendance” chapter in the PNBA’s “Facts and Figures 2025/26” where the commentary notes that, while there has been a move away from almost invariably using the basic rate, “Where care is found not to include a significant element at anti-social hours, the basic rate still forms the basis of reasonable value/proper recompense”. In one of the cases referred to in the footnotes, Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565 (KB), Cotter J said, at [234],“The basic rate is appropriate when care is provided (or very largely provided) during what could be considered ordinary working hours, whereas the aggregate rate balances out all the hours of the week and is appropriate when care is provided throughout the week…”. For some of the periods he was considering, Cotter J went on to award a rate midway between the basic rate and the aggregate day rate “given that most of the care would not be provided at unsocial hours; but some would be necessary at weekends” [248].

Although it may be erring on the side of generosity, I have decided to adopt the Day Aggregate Rate. Weekends were a particularly busy time for Michelle in terms of caring for her family because that is when she organised and participated in the big weekly clean and the big weekly shop, and when she did her share of the dog walking. This on top of the more routine caring activities she was engaging in every day. Ian appears to have followed the same pattern when stepping in to her shoes, since he too was working during the week. That focus on the weekends makes the Day Aggregate Rate appropriate in my judgement.

I was not shown any cases where the Inclusive Day Rate has been applied (despite the fact that in many of the reported cases, it is likely that care was being given on bank holidays etc), and it is not included in the tables in Facts & Figures. I am therefore not prepared to apply this higher rate (though I am told the difference is not much).

Next I must decide whether to award the Day Aggregate Rate in full, as the Claimant contends, or whether to apply a 25% discount, as the Defendants contend.

In personal injury cases (again as explained in the commentary in Facts & Figures) it is conventional to reduce the applicable rate by 25% where care has been provided gratuitously by relatives of the claimant. That is because a person employed at that rate would have to pay tax and National Insurance whereas gratuitous carers do not (the legal analysis being that damages awarded to the Claimant under this head are held on trust for the gratuitous carers and will be paid out in full to them without incurring any tax or NI). The same legal analysis was adopted by the Court of Appeal in respect of damages under the FAA in H v S [2002] EWCA Civ 792, [2003] QB 965 though without discussion of its implications for the applicable hourly rate. At [30] Kennedy LJ said “…such damages can only be awarded on the basis that they are used to reimburse the voluntary carer for services already rendered, and are available to pay for such services in the future. In the words of Lord Bridge in Hunt v Severs [1994] 2 AC 350, 363, damages are held on trust…”. In the current (22^nd) edition of McGregor on Damages, the authors state, at 42-096: “… Certainly, where the court has been prepared to look at the cost of a nanny housekeeper as a guide to the value of the deceased services, it has been the net pay after tax and national insurance that has been taken…”.

In support of his contention that there should not be any discount in the present case, Mr Crowther relies on Steve Hill Ltd v Witham [2021] EWCA Civ 1312, [2022] PIQR P2. In Witham the dependent wife had given up (or not returned to) employment in order to replace the care that her deceased husband had been providing for their two foster children. The judge at first instance held that, in those circumstances, her past loss of dependency should be valued at the rate of securing replacement care commercially and without any 25% discount. On appeal, Nicola Davies LJ said:

“52.

It is the value of the services lost which requires assessment and compensation, not the value of how the dependant manages following the death. The decision of the judge to value care, not on the basis of the gratuitous replacement by a friend or relative, but on the basis of the estimated cost of employing labour to replace the lost service, was one open to him to make. Further, having so found, there is no identified requirement to make a 25% or other deduction.

53.

Finally, was it appropriate for the judge to adopt the commercial rate? In Housecroft v Burnett [1986] 1 All E.R. 332 , a claim for personal injury arising from a road traffic accident, O’Connor LJ stated at p.343:

“… in cases where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural that the plaintiff would not wish the relative to be the loser and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate.”

54.

This was not an FAA claim, but I regard it as authority for the proposition that where earnings have been lost, the commercial rate of care may be appropriate. Whether it is appropriate is a fact-specific assessment for the court. The approach of the judge was reasonable, it reflected the evidence given by the Claimant’s expert, there are no grounds upon which this court could interfere with the assessment.”

Thus, it seems to me, the critical factor which justified the Judge’s decision in Witham was the fact that the claimant had given up employment to step in for her late husband. That is not the case here – Ian has continued to work as before – and there is no risk of under-valuation if the loss of Michelle’s services are assessed in the conventional way where replacement care has been provided gratuitously by family members. I therefore apply the 25% discount.

I find that the services Michelle would have been providing to Ian, Aaron and Matthew between the date of the accident and the end of the trial are best expressed as 26 hours per week (divided between domestic and household services (18 hours) and additional hours attending to the boys (8 hours)). These are best valued at the Day Aggregate Rate but subject to the conventional 25% discount to reflect the fact that no tax or NI will be charged on these damages. This sum must be reduced by a further 1% in accordance with Table E of the Ogden Tables. By my calculation, the figures will therefore be as follows:

I attribute £48,924 of that sum to domestic/household services. The remaining £21,744 represents additional services for the boys.

In a schedule handed up at the end of trial, Mr Crowther submitted that the sum representing domestic services be split equally between the three dependants and the sums specific to the boys equally between Aaron and Matthew. (He also sought a separate sum for “household” services attributable solely to Ian but, as I have explained, I am not making a separate award under that head).

Ms Wolstenholme, relying on the proposition in H v S that damages for past services are held on trust for the person who actually provided the services, submitted that all of this sum should be allocated to Ian, who (with some help from Graham) had stepped into Michelle’s shoes.

In the current edition of McGregor on Damages at 42-087 (discussing the more common situation in which the dependants are a spouse and infant children) the authors note that it has been common practice to award the bulk of the sum to the spouse and state, “There is admittedly also the practical advantage to this approach, one supported by common sense, that the spouse or partner will have ready access to the fund for us in the care of the children without the need for applications to the court”. They also cite Latham J in R v CICB ex p. Barrett [1994] PIQR Q44 who said “there is no real sound basis other than pragmatism for approaching the problems of the apportionment of the amount of money representing the lost dependency in this particular way”. The authors continue, “Yet despite the benefits of pragmatism, it is surely preferable to attempt a calculation of the contributions which the deceased would have made to each child’s support and to allocate that amount to each child…”.

In this case, because of the other awards I am going to make (see below), the “pragmatic” approach to past loss of dependency would not in fact avoid the need for applications to the court in respect of the boys. I prefer therefore to apportion the sums in a way that reflects the actual lost dependency of each dependant. Ms Wolstenholme’s reliance on H v S appears to me to conflate two distinct questions: which dependant has suffered a particular loss of services, and for whom should they hold the sum that reflects that loss?

Although Michelle would have done somewhat more for Aaron than for Matthew, given Aaron’s greater needs, it strikes me as over-complicated to attempt to reflect this. I therefore apportion the sums for past loss of services as follows:

The parties agree that, at some point, it will be reasonable to value the loss of Michelle’s services by reference to the cost of replacing them at commercial rates and not the gratuitous service rate that I have applied to past loss of services. The Claimant contends that this point has already arrived – lost services should be valued on a commercial basis forthwith. The Defendants contend that this point will only arrive when Ian and Graham can no longer provide the care and support they presently give. Beyond that, there are major disputes about what a reasonable commercial replacement package would look like, when the time comes, and a dispute about how to reflect the likely tailing off of Michelle’s abilities as she aged. And underlying all these issues are the findings of fact I have already made about the nature and extent of the services Michelle was providing, and how they are best translated into hourly rates. Taking these in turn:

Mr Crowther submits that, on the authorities, the starting point is that the measure for an award for future loss of service dependency is the cost of buying in replacement services at market rates, regardless of whether the dependants would ever actually enlist commercial service providers. He says there is no reason to depart from this approach. He says that the Defendant’s approach (whereby commercial rates would not apply until Ian and Graham are no longer around or able to assist), is illogical because it is Michelle’s services I am valuing, not theirs.

I did not understand Ms Wolstenholme to dispute what Mr Crowther says about the starting point, but she does invite me to take a different approach. She submits that Ian and Graham have found a workable solution without buying in outside help (despite Ian having funds available to do so) and that it would be arbitrary to switch now to a commercial basis when the current arrangements are capable of continuing for the short to medium term.

On this issue, I prefer Mr Crowther’s submissions. The authorities do indicate that the commercial cost of replacing services is the normal measure. See e.g. Daly v General Steam Navigation Co [1981] 1 WLR 120 at 127 (Bridge LJ) – an ordinary personal injury case, but nothing turns on that for present purposes:

“It has been energetically argued by Mr. Bennett, for the defendants, that before future loss of capacity to undertake housekeeping duties can properly be assessed at the estimated cost of employing some third person to come in and do that which the plaintiff is unable to do for herself, the plaintiff has to satisfy the court that she has a firm intention in any event that such a person shall be employed. For my part, I am quite unable to see why that should be so. Once the judge had concluded, as this judge did, that, to put the plaintiff, so far as money could do so, in the position in which she would have been if she had never been injured, she was going to need, in the future, domestic assistance for eight hours a week, it seems to me that it was entirely reasonable and entirely in accordance with principle in assessing damages, to say that the estimated cost of employing labour for that time, for an appropriate number of years having regard to the plaintiff's expectation of life, was the proper measure of her damages under this heading. It is really quite immaterial, in my judgment, whether having received those damages, the plaintiff chooses to alleviate her own housekeeping burden, which is an excessively heavy one, having regard to her considerable disability to undertake housekeeping tasks, by employing the labour which has been taken as the basis of the estimate on which damages have been awarded, or whether she chooses to continue to struggle with the housekeeping on her own and to spend the damages which have been awarded to her on other luxuries which she would otherwise be unable to afford.”

I see no reason to depart from this approach. Although I have found that some witnesses have overstated the difficulties Ian is encountering and the extent to which he is falling short of the standards achieved by Michelle, I have accepted his evidence that he is struggling to some extent and having to use up his annual leave from work to cope. His oral evidence was that he had not thought of sourcing professional help but that “If I was offered the help I would take it”. Moreover, the replacement help with paperwork and finances comes from Graham, who is not a member of the household and (despite his immense goodwill) cannot be expected to provide these services for ever.

It is a matter for Ian and Graham whether they move to professional support immediately or continue with the current arrangements for now and phase in professional support gradually. The important thing is that, in order properly to reflect the value of the services that Michelle would have been providing, they are in a position where they can afford to source them on the market.

I do not consider that this approach is arbitrary. The reason that I have awarded gratuitous rates for past services is that, according to H v S, the Court can only compensate for past services that have actually been rendered (and no commercial services were used). That does not make it illogical to make provision for the future on the commercial basis.

On this question, the two experts took very different views. I can summarise the parties’ positions as follows. This is a very simplified version of the information contained in the experts’ joint statement and the schedules of loss for trial:

As can be seen, the parties are not putting forward their cases on a strictly like-for-like basis in terms of the nature of the replacement service, hours, and sums. This makes my task difficult. I have approached it by starting with my findings about the hours that Michelle was devoting to the household generally and her sons in particular, and then asking how those services are best replicated using paid-for services.

It will be recalled that I have found that Michelle would have been spending around 18 hours per week giving her services to the general running of the household. The elements of that service that could be easily replicated by a paid housekeeper would be cooking, cleaning, laundry, shopping, sorting the bins out and pet care within the home. The elements that would require compensation in some other way would be dealing with the household finances and administration, haircuts, decorating and dog walking.

I would estimate that the total domestic services provided by Michelle that could be replicated by a paid housekeeper would require 15 hours per week. Unsurprisingly, that is less than proposed by Mrs Aitken because, as I have already explained, Mrs Aitken has overestimated Michelle’s contribution to the household by underestimating the contribution of others. More surprisingly, 15 hours per week is substantially more than Ms Phillips proposes (2 hrs). I do not understand why she has limited paid-for domestic work to cleaning and ironing, having found, in relation to past services, that Michelle was doing much more than that. It seems she has allocated some domestic chores under the head of services provided to the boys. I explain below why I find that approach unhelpful.

Ms Phillips, when costing a replacement for domestic services, took a very straightforward approach of taking what she described as a “typical agency rate” of £17.95 per hour and applying it for 52 weeks per year. Mrs Aitken, while using a similar hourly rate (£18.00), took a more sophisticated (or as the case may be, complicated) approach, adding in an initial agency introduction fee of £1,900.80 and various recurring costs of employing domestic help, such as pension contributions, payroll assistance, insurance etc. She also applied the sum for 57 weeks per year, to reflect holiday entitlement (5 weeks approx..) and likely days off sick (2 weeks approx..) when alternative cover would need to be found (citing ONS statistics for sickness absence) but also reflecting an assumption that Michelle herself would have taken an annual holiday per year.

Mrs Aitken was not challenged on her more sophisticated approach save that, in closing, Ms Wolstenholme made the good point that the ONS statistics about sickness absence would also have applied to Michelle herself (being an employed carer in the same category) so do not justify an extension to account for likely sickness absence: Michelle - it can be assumed – would have been unwell for the same amount of time per year, and so there would be no services to replace during those times.

I therefore accept Mrs Aitken’s figures under this head save that: (i) the hours per week are 15, not 22; (ii) the number of weeks per year is 55, not 57; and (iii) the pension contribution figure needs to be adjusted proportionately. By my calculation, that produces a one off figure of £1,900.80 and an annual figure of £17,375.

As to general domestic/household services that could not be replicated by an employed housekeeper:

This adds up to an annual cost, for these miscellaneous services, of £2,880. I think they can be treated together. Splitting out certain household tasks of which Ian alone would be the beneficiary (as the Claimant suggests) strikes me as overcomplicated.

I have found that Michelle was spending around 8 hours per week attending to Aaron and Matthew because of their special needs and in addition to the time she was devoting to the household generally. I have found that these additional services that Michelle provided to the boys consisted of light-touch supervision and support coupled with specific assistance in certain situations (medical appointments, dealing with the DWP etc).

Both experts agreed that, if future services were to be provided on a commercial basis, then employing a support worker (or workers) would be the most appropriate way to replicate this aspect of Michelle’s role. As Ms Phillips pointed out, Michelle would have provided some of the supervision and support at the same time as providing her domestic services to the family as a whole. Since, under commercial arrangements, the two roles would be performed by separate individuals, I have increased the support worker’s hours to 10 per week, rather than eight. I do not see any reason why those hours cannot generally be supplied during ordinary working hours on weekdays. It seems unlikely that they will get into difficulties if left for a weekend (even after Ian’s death) particularly if I accept, as I do, Ms Phillips’ suggestion that each of them should also be provided with an emergency call alarm.

It follows that I reject as excessive Mrs Aitken’s recommendation that Aaron and Matthew should have a support worker each, and that each should receive 2 hours of support 7 days a week. That again flows from Mrs Aitken’s over-estimation of the boys’ needs and her failure to appreciate that those needs can often be met simultaneously.

I am unclear why Ms Phillips herself suggested 17 hours for a support worker. It seems that she has taken into account some ordinary domestic services for the boys under this head (which explains why she recommended only 2 hours for a housekeeper and described their duties as “cleaning and ironing”). I do not think that is the right approach because, when one comes to apportionment, it is very important to distinguish between services provided to the whole family and additional services provided just to the boys by reason of their disabilities.

Using Mrs Aitken’s weekday rate of £32.50 per hour (which Ms Phillips accepted was reasonable) and Ms Phillips’ assessment that the costs should be calculated on the basis of 52 weeks per year (an assessment that the Defendants did not seek to disown at trial), the annual cost of the support worker would be £16,900.

Mrs Aitkens also recommended a live-in carer after Ian’s death. Her thinking on this can be discerned from these passages in her report:

“I have also based this report on the following assumptions:

•

Care of vulnerable adults is not restricted to specific activities but is also required as a background responsibility over a 24-hour period, notwithstanding the ebb and flow of involvement during weekdays, weekends and holiday periods. However, the need for providing food, security, advice, engagement, housework, additional care during periods of illness, and night-time supervision remain consistent features of parenting.

•

Such indirect supervisory/on-call activity is most difficult to evaluate, as is valuing night-time care where the vulnerable adults clearly cannot be left alone for long periods but no direct hands-on care is given whilst they and indeed their parent are asleep. For the purposes of this report, however, I will not include any night-time care as only one parent is required for that support and Mr Griffiths would have been able to provide it in any event”

And later:

“In the event of Mr Griffiths’ death or serious illness, additional care will be required for Aaron and Matthew to ensure that they can continue to live together in their own house. A live-in carer would provide the sleeping night care required in this scenario”

(emphasis added)

Although in these passages Mrs Aitkens refers to “vulnerable adults”, the bullet point assumptions read much more like an assessment of the needs of a child (perhaps reflecting her greater practical experience with child care). More importantly, there is no support in the factual witness evidence for the proposition that Aaron and Matthew cannot be left alone at night. Michelle and Ian did generally spend the nights in the family home. However, none of the factual witnesses suggest that this was because they felt the need to be watching over the boys or on call to assist them, still less that they ever had to intervene and attend to them at night. The medical evidence I was directed to did not suggest that Aaron is prone to nighttime seizures. Moreover, Michelle and Ian felt comfortable leaving the boys alone overnight for ten nights when they went to Tenerife (with their grandmother staying over a couple of nights for reasons that were not explored in evidence).

Accordingly, I find that Michelle was not providing overnight care or supervision and it is not reasonable or necessary to provide for a live in carer in order to replicate her services going forward, even after Ian’s death.

The parties are agreed that if, as I have found, a commercial care package involving the supply of a support worker is reasonable, then initial costs of £5,526 to set up the service are also reasonable. Mrs Aitken suggested that there should then be allowance for ongoing case management, initially at £3,684 p.a. (reflecting 4 visits of 5 hours each plus travel), rising to £11,052 p.a. once Ian is no longer the main carer (reflecting 12 x 5 hour visits per year). Ms Phillips says that, once put in place, the care package should be self-regulating and that no ongoing costs are likely to be incurred.

On this point, I think Ms Phillips’ opinion is over-optimistic. One can well imagine problems arising from time to time if, for example, a particular support worker proves to be unsuitable or if care plans need to be reviewed and updated. It is unlikely that an agency would take on this work for free. Nevertheless, 4 lengthy visits per year while Ian is on the scene (rising to 6 per year once Ian and Graham are no longer around) seems excessive. To avoid overcomplication, I am going to award £3,684 p.a. (which is likely to exceed actual expenditure in the short term but will be balanced out by greater expenditure once Ian and Graham have left the picture).

The experts agreed that Michelle’s ability to provide services would have diminished over time. In their reports, neither of them proposed how this should be reflected in terms of percentage reductions for different periods. In their schedule of loss, the Defendants proposed a 15% reduction from time that Michelle would have turned 75 and a 33% reduction from the likely date of Ian’s death until Michelle’s own death (the latter reduction reflecting both her own diminishing capacity and the fact that Ian’s dependency would then have come to an end). When questioned in re-examination, Ms Phillips noted the somewhat speculative nature of the exercise but said that these proposed reductions were both reasonable. Mrs Aitkens declined to be drawn on the appropriateness of the Defendant’s proposed discounts.

I accept the Defendants’ proposed discounts. I bear in mind that a lot of Michelle’s contributions were in the form of planning, motivation, supervision etc and did not require physical strength. Nevertheless, I accept Ms Phillips’ appropriately guarded assessment that the proposed reductions are reasonable.

Drawing all this together, the sums I award are as follows (rounding down to complete pounds). I have taken the multipliers from the Defendants’ counter-schedule of loss, which I do not understand to be disputed in this regard.

As with past loss of services, Mr Crowther invites me to split the domestic/household sums three ways (save for a sum for household maintenance that would all go to Ian - again a suggestion I have not taken up because I have not identified this as a distinct head of damage), and the other sums two ways between Aaron and Matthew.

In taking this position, the Claimant is fully aware that the boys are likely to lose their entitlement to means tested benefits (as well as the jeopardy they will be in if I find that deputyship costs are not recoverable as a matter of law) but urges me not to accept an artificial approach of awarding the bulk of the sum to Ian. Mr Crowther refers me to F v R [2022] EWCOP 49, where HHJ Hilder observed that the Court cannot endorse a proposal whose purpose is to preserve an eligibility for benefits which Parliament has decided does not exist.

Ms Wolstenholme submits that the lion’s share (“at least 50%”) of the future services dependency award should go to Ian. This, however, is a reflection of the Defendants’ position that the award should be calculated on the assumption that Ian would be providing the bulk of the services going forward on a gratuitous basis. I have rejected that assumption and found that the award should be calculated at commercial rates forthwith. It therefore seems illogical to apportion the sums otherwise than by reference to the value of the commercial services that each dependent would in fact be receiving. I would also have concerns in any event about adopting a pragmatic (or as Mr Crowther would put it, artificial) approach. I have no doubt that, if entrusted with the whole sum, Ian would conscientiously apply it for the benefit of the boys during his lifetime. However, what if he fails to make provision for them in his will? That would leave the boys – with no money to their names and lacking the necessary capacity – to bring a claim against Ian’s estate for a declaration that some of it is held on trust for them.

For all these reasons, I consider that I should adopt the principled approach favoured by the Claimant. I shall apportion the sums for future loss of general domestic/household services 3 ways up until the anticipated date of Ian’s death and 2 ways thereafter and I shall apportion the sums for loss of Michelle’s additional services to the boys equally between them. As before, I think it is unnecessarily complicated to try to reflect the fact that Aaron would have received slightly more attention from her than Matthew. By my calculations, the result is as follows:

Because they lack capacity to manage their property and finances, Aaron and Matthew are “protected beneficiaries” for the purposes of CPR Part 21. Mr Crowther points me to CPR 21.11(9) which provides that “Where money is recovered for the benefit of a protected beneficiary – (a) if the amount is £100,000 or more …the court shall direct the litigation friend to apply to the Court of Protection for the appointment of a Deputy, after which the fund shall be dealt with as directed by the Court of Protection”. The evidence of the deputyship experts is that professional (rather than lay) deputies should be appointed in this case for each of Aaron and Matthew. Mr Crowther therefore submits that the Court should award as damages the costs of professional deputy fees.

Ms Wolstenholme submits that such fees are not recoverable as a matter of law. The parties were unable to identify any authority that deals with this point, which surprised me. Neither have I been able to identify any authority directly on point.

Taking Ms Wolstenholme’s case first, she submits as follows:

Mr Crowther, in response, submits that, given the rules of court, professional deputy fees are a “necessary corollary” to an award for loss of services and are therefore recoverable. He refers me to Rupasinghe v West Hertfordshire Hospitals NHS Trust [2017] PIQR Q1 at [47], where Jay J was explaining why a dependant’s claim simpliciter for loss of earnings following the deceased death (as opposed to a true claim for lost dependency where the lost earnings are used as a proxy to assist valuation of the dependency) is not permitted under the FAA. He said that, “The Act is only concerned with losses which flow from what the Deceased did when alive: either by the making of a financial contribution to the household, or by providing childcare and similar services (capable, under the common law, of being accorded a financial value)” (Mr Crowther’s emphasis).

I fully accept Ms Wolstenholme’s point that FAA damages are sui generis and that any award must be brought within the statutory wording, as interpreted in the case law. i.e. I must identify a pecuniary loss to the dependants, which must be the loss of a benefit in money or money’s worth which, if Michelle had survived, would have accrued to them, and I must award full compensation for that loss, and nothing else (other than funeral expenses and bereavement). I therefore accept that the position is materially different from a claim for deputyship fees in a personal injury claim brought by an injured claimant, where such fees are straightforwardly considered as part of the exercise of putting the injured claimant back in the position they would have been in if they had not been injured. I accept that the professional administration of a fund that has been awarded for the benefit of Aaron and Matthew is not in itself a benefit that Michelle would have conferred on them, had she lived (there would have been no fund and she would not have been qualified to administer it). Nevertheless, and despite Ms Wolstenholme’s powerful submissions, I prefer Mr Crowther’s position for the following reasons:

As mentioned, on the basis of the deputyship experts’ evidence, counsel had managed to agree on two sets of figures: one on the assumption that I awarded the sum for past and future services dependency being sought by the Claimant (some £2,714,630); the other on the assumption that I awarded the sum being offered by the Defendants, (some £451,903) but nevertheless apportioned that sum in a way that left each of Aaron and Matthew with more than £100,000. The two sets of figures (including applicable Ogden Table reductions) can be summarised as follows:

The difference between the parties’ figures for the “one off fees” are attributable to the need for a greater sum for “contingency” if the Claimant’s case succeeds.

In fact, the past and future services dependency award I have determined is £1,040,376, with £443,341 (or 43%) being apportioned to each of the boys. That is obviously well in excess of the Defendants’ figures (which, if apportioned in the same percentages, would have left the boys with roughly £194,318 each) but falls very far short of the Claimant’s figures (which, if apportioned in the same percentages, would have left the boys with roughly £1,167,290 each. (In fact, in each scenario, the gross sums accruing to the boys would be somewhat larger because it has also been agreed that Aaron and Matthew should receive £6,000 each for loss of intangible benefits, and there will be interest to be applied to some heads of loss. For the sake of simplicity I ignore these adjustments for present purposes).

In this eventuality, Mr Crowther proposes the following pragmatic approach: that I should award the one-off fees other than the sum for “contingency”, which do not vary between the scenarios; that I should “split the difference” (i.e. choose the mid-point) between the parties’ figures for “contingency” and the management fees for years 1 and 2 (since the parties’ cases under these heads do not diverge greatly); but that I should apportion the year 3+ management fees on a “broadly pro rata” basis, i.e. in a sum that reflects where my award stands between the Defendant’s proposed award and the Claimant’s proposed award.

I shall adopt a slightly simpler approach which I consider meets the justice of the situation: (1) I shall award all the one-off fees (including “contingency” and the year 1 and 2 management fees) at the Defendant’s proposed rates: splitting the difference would have unduly favoured the Claimant and a more mathematical approach is overcomplicated given the sums involved; (2) I shall apportion the year 3+ management fees on a pro rata basis (noting that the sum I have awarded to each of the boys falls at around the 25% mark in the range between the figure I would have awarded on the Defendants’ case and the figure I would have awarded on the Claimant’s case); (3) I shall not award anything for deputy costs associated with a live-in carer, since I have found that a live-in carer is not required. By my calculation, this leads to:

Ms Wolstenholme submits that any damages awarded for deputyship fees should be proportionate to the sums that the deputies will be administering. She refers me to ABC (by her litigation friend DEF) v DFT (unreported, 28.02.18, HHJ Yelton sitting as a Judge of the High Court) by reference to which she submits that any award for deputyship costs should not exceed 30% of the boys’ damages for other heads of loss.

In ABC (a personal injuries claim on behalf of a child in which a very substantial award of damages was being sought), HHJ Yelton had made it clear, when circulating a draft judgment, that the fund that a deputy would be required to administer would be very much smaller than envisaged by the claimant. The claimant responded by putting forward a revised figure for deputyship fees of £872,787. The Judge found that the damages (other than deputyship fees) amounted to £436,981. At [95] the Judge said:

“The damages, after payment for rehabilitation and the like, will be in the region of £220000. Thus it is said that the costs of managing an award of damages are about 4 times its capital value. That simply cannot be fair to a defendant or proper in a developed legal system. I also agree with the proposition put forward by the defendant that it is probable that at some time in the reasonably near future the claimant will expend the fund on the purchase of a property, with or without others. The work involved in managing such a fund, particularly if a property is purchased, will be very little once the first few years have passed, during which a large number of payments out will have to be made for care, rehabilitation, and the like. Since I do not regard the figures put forward by Miss Bennett as helpful, and in any event I am now dealing with a wholly different scenario from one in which very substantial damages had to be managed, it seems to me that I have to come to what is sometimes called a jury figure under this head. It seems to me that a proper figure for the relatively modest fund should not exceed £125000, and that may be too generous to the claimant.”

Mr Crowther did not appear to dispute in principle the proposition that damages for deputyship fees should be proportionate to the sum that the deputy will have to administer. He disputes however that there should be any sort of 30% ceiling as the Defendants propose. He points out that in ABC HHJ Yelton did not have the benefit of an agreed position as between deputyship experts as to what an appropriate sum would be in light of his lower proposed award of other damages, whereas I do have that advantage here. He also points out that the sum HHJ Yelton awarded was in fact more than 50% of the sum that the deputy would actually have to administer.

I am not persuaded that I should make any further reduction on grounds of proportionality in this case. That is because:

Finally, dealing with two miscellaneous matters concerning deputyship costs:

In summary (and including sums and apportionment already agreed, but ignoring the 30% reduction for contributory negligence) Ian, Aaron and Matthew are entitled to the following:

I have not mentioned interest in this judgment because I understand that the applicable rates are agreed between the parties and can simply be applied to the figures I have found, where relevant.

I have asked counsel to check all the arithmetic in this judgment and to prepare a draft order reflecting the outcome. I am grateful to them for this and all their valuable assistance during the trial.

I will grant permission to appeal on Issue 5. Given the lack of authority on the question of whether deputyship fees can be claimed as damages under the FAA, and the potential importance of the point, both limbs in CPR 52.6(1) are satisfied.