CAPE DISTRIBUTION LTD v AINE O'LOUGHLIN [2001] EWCA Civ 178

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

(FORBES J)

[2001] EWCA Civ 178

Case No Case No: A2/2000/0091

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Thursday 8th February 2001

Between

CAPE DISTRIBUTION LTDAppellant

AINE O'LOUGHLINRespondent

Before

Lord Justice Schiemann

Lord Justice Judge

Lord Justice Latham

Mr F Burton, QC (instructed by Field Fisher Waterhouse) for the Respondent

Mr G Alliott (instructed by Davies Arnold Cooper) for the Appellant

Date 8 February 2001

LORD JUSTICE LATHAM:

On

[1]the 13th May 1995 Mr O'Loughlin died. He was 50 years of age, having been born on the 17th September 1944. His death was due to mesothelioma contracted as a result of exposure to asbestos dust while working for the appellants at their factory in Uxbridge for four months in 1966. On the 2nd July 1999, Forbes J awarded his widow, the respondent, a total of £284,652.38 inclusive of interest in respect of the claims which she had made arising out of her husbands death on her own behalf, and on behalf of the two teenage sons of the marriage, under the Fatal Accidents Act 1976, and of his estate under the Law Reform (Miscellaneous Provisions) Act 1934. Of this award, £164.035.95 represented the loss of past and future financial dependency under the Fatal Accidents Act, and interest. In this appeal, the appellants challenge the judge's findings upon which he based this part of his award.

[2]This appeal raises once again the difficult question of how to assess the value in monies worth of the loss of a husband and father when the family's financial affairs are not straight forward. Mr O'Loughlin had, together with a partner, run a successful plant hire business in Ireland for some years. The respondent's claim was, however, based upon Mr O'Loughlin's business activities in and after 1989, when he severed his relationship with his partner. Although to begin with, these activities were based on plant hire, through the medium of two companies, Ready Hire Ltd and Green Hire Ltd, they gradually concentrated on property development, so that by 1994, the year before his death, property formed the sole basis of the family's finances. All his activities were conducted in Ireland; and although the judgment was expressed in pounds sterling, the figures used throughout the trial were expressed in Irish Punts. I shall use Irish Punts when giving relevant figures in the rest of this judgment unless I say otherwise.

[3]When he started property dealing in 1989, the family owned three properties, including the matrimonial home which was subject to a mortgage. Excluding these properties, he had, by the time of his death built a property portfolio of some seven investment properties worth approximately £750,000, three of which were subject to commercial mortgages of approximately £120,000. These properties were held in the name of Mr O'Loughlin and the respondent, or Ready Hire Ltd. He also had a 50% share in two companies together with Mr Howley, which owned two other properties. He was obviously successful; and by the time of his death he had repaid the mortgage on the family home. Mr O'Loughlin's income tax returns disclosed substantial income receipts. His gross income was £92,527 for the year ending 1992, £49,097 for 1993, £51,828 for 1994, and £59,283 for 1995. These figures are to a great extent artificial, in significant part constructed so as to take as much fiscal advantage as possible of the period leading up to his death. The rental receipts which underpinned his and the company's annual earnings were approximately £32,000. After his death, the respondent did not suffer any immediate financial disadvantage. She received the full value of all Mr O'Loughlin's capital assets. Although before his death she would help in a secretarial capacity, she never involved herself in the management or development of the properties. After his death, she attempted to do so, but found that she did not have the necessary skills. In order to maintain her life style, she has sold three of the properties and enjoys the investment income from these as well as the rental from the remainder. She has not been able to carry on the property development side of the business. Her income tax returns for the three years following his death disclose an income of £50,416 for 1995, £46,846 for 1996 and £39,879 for 1997. These in themselves are also to some extent are artificial, reflecting as they do not only rental income and investment receipts but also distributions from capital.

[4]On behalf of the respondent, it was submitted to the judge that the court had to approach the assessment of damages on the basis set out by Staughton LJ in Wood -v- Bentall Simplex Ltd [1992] PIQR 332 at 349:

"One then turns to the case where the income is in part derived from labour and in part from capital. Suppose that the husband owns a boarding house and that he and his wife run it together. If he should happen to be killed by a negligent wrongdoer and his widow inherits the house and continues to run it, should she recover to the extent of her dependency on the whole of the profit of the boarding house? This is not very different from the present case. My answer is that one must again determine what the dependants have lost. No question of deduction arises. The court has to ascertain how much loss has arisen because the deceased is no longer alive and able to work, and how much the deceased's income is derived solely from capital which the dependants have inherited."

[5]On that basis it was contended that the loss to the dependants as a result of Mr O'Loughlin's death was his flair, experience and entrepreneurial skills to manage and develop the property portfolio and the financial benefits that that would bring to the family. It was contended that he would have continued to have done so until at least aged 60. As a result, it could have been anticipated that he would have increased the portfolio and the rental income by acquisition and development which are clear benefits which the dependants have now lost. It was submitted that the most secure way to assess the value of these services would be to determine what it would cost to replace them. A Mr Potterton of a firm of estate agents produced a report in which he assessed the cost of replacing these services at £28,000 per annum.

[6]For the appellants, it was submitted that in truth, the dependants had lost little. The full value of the capital assets remained available to them. They had the benefit of the rental income and interest on investments from the whole of the capital assets of Mr O'Loughlin. They submitted that it was wholly inappropriate to assess the dependency on the basis of a valuation of the loss of services. This, it was submitted, failed to take any account of the fact that the evidence before the judge showed that for the period immediately after his death, the respondent, and therefore the family, had lost little. More fundamentally, it was submitted that no proper basis had been put before the court on behalf of the respondent to determine the true nature and extent of the dependency which could enable the court to come to a proper conclusion as to the true value of the dependency.

[7]Having set out the respondent's submissions,

the judge said:

"I do not accept those submissions which seem to me to take an over simple view of Mr O'Loughlin's work and efforts and ignore the significant contribution which he made to the actual and continued commercial success of his property business. As Mr O'Luonaigh (the appellants accountant) readily agreed in cross-examination, there is no reason to doubt Mrs O'Loughlin's evidence as to the time and effort which Mr O'Loughlin put into his property business in the early 90's. Mr O'Luonaigh also accepted maintaining the property portfolio involved some management of work on Mr O'Loughlin's part. He also agreed that some of the properties in the property portfolio clearly attracted an assets management function on the part of Mr O'Loughlin. Mr O'Luonaigh agreed that Mr O'Loughlin's efforts in all these various ways produced a clear economic benefit to the family unit as a whole. After Mr O'Loughlin's death, Mrs O'Loughlin had to expend time and effort herself to keep the property portfolio "on the rail" to use Mr O'Luonaigh's expression. For the reasons which she explained, and which I have no hesitation in accepting, Mrs O'Loughlin was not able to carry out the necessary property management in the way that Mr O'Loughlin had done and, as she clearly accepts, she did not have his flair and skill for asset enhancement or asset development by means of the sort of shrewd property investment and development of which Mr O'Loughlin was clearly so skilful. Accordingly I accept Mr Burton's submission that it is wholly unrealistic to say that there is no, or only a very small, pecuniary loss to the dependants as a result of Mr O'Loughlin's death. Mr O'Loughlin had considerable flair and energy as a property developer. In a relatively short time he had built up a property portfolio which produced a significant income which appears to have had a capital value at the time of his death in the region of £¾ million. There was considerable development potential in some of the properties which he had acquired. All the skills which Mr O'Loughlin brought to bear on his business and the time, effort and energy which he devoted to maintaining and building up that property portfolio were, in my view, clearly of economic or pecuniary benefit to his dependants, which have now been lost to them by reason of his death. There is no reason, in my judgment, to doubt that Mr O'Loughlin would have continued to develop and enhance his property portfolio into the future for a period of time to which I have already referred. I accept Mr Burton's submission that this loss to Mr O'Loughlin's dependants can best be measured by asking how much it would cost to replace Mr O'Loughlin's skills with those of another person, capable of bringing to bear the same type of skills on the property portfolio in question. I accept that those skills will include both asset management skills as well as property management skills. I accept the evidence of Mr Angus Potterton of Hamilton Osborn King, who are estate agents and auctioneers and land valuers in Dublin, that the likely annual cost of providing appropriate property management and asset management services by a firm such as Hamilton Osborn King in respect of Mr O'Loughlin's 1994 property portfolio would have been in the region of £28,000. I also accept his evidence as to how that annual figure has been calculated and as to the appropriate percentages to be used in reaching that figure."

[8]Having discounted the full figure of £28,000 to reflect the fact that Mr Potterton in his evidence had included the cost of managing the properties which were owned by the company in which Mr Howley had a share he based his calculations on a figure of £23,000 as representing the value of the lost services of Mr O'Loughlin. He took the dependency ratio at 75% for past loss and 72% for future loss, that is £17250 to the date of trial and £16,560 thereafter to which he applied a multiplier, which I understand was agreed, of 6.92.

[9]Mr Alliott on behalf of the appellants, submits to us that this was a wholly inappropriate basis in principle on which to calculate the family's loss of dependency. His submits that there was no reason why the dependency could and should not have been calculated on the traditional basis of determining the probable financial consequences to the family had Mr O'Loughlin continued to live and manage his businesses, and comparing that with the probable consequences to the family of his no longer being in a position to do so. This would, he submits, have enabled him to deploy arguments as to the extent to which the death of Mr O'Loughlin has resulted in benefit to his dependants which could and should properly be brought into account. He submits that whilst to value lost services may be appropriate where it is purely the services that have been lost, such as where the court is asked to put a financial value on the loss of the services of a wife or a mother, that is not appropriate where the true loss is the loss of earning capacity of the deceased. In such a situation, it is that earning capacity which has to be established. He gave the example of a highly skilled man who produced a relatively small income for his family in the exercise of a craft where it would cost a significantly greater amount to replace the services of the deceased than were the deceased's earnings. This exemplifies, he submits, that what might be called the replacement cost is wrong in principle. The dependants in such a situation cannot be entitled to more than was the dependency from the actual earnings of the deceased. His alternative submission is that the evidence of Mr Potterton was in any event wholly unsatisfactory and could not be used to support the judge's conclusions as to the value of the services lost.

[10]Mr Burton, QC on behalf of the respondent submits that the approach of the judge was a justifiable and realistic way of answering the difficult question of the extent to which the dependants have been deprived of a "reasonable expectation of pecuniary advantage from the continuance of the life of the deceased": see Pym -v- The Great Northern Railway Company (1863) 4 B&S 396. This, he submits, is a question which does not predicate any particular approach, but requires a fair and reasonable assessment to be made which will be dependent upon the facts of every given case. In the present case, he submits, the traditional, if it can be described as such, approach of Mr Alliott would require a complicated and ultimately speculative inquiry into the result of Mr O'Loughlin's likely management of his property interests carrying with it so much uncertainty save as to its probable success, as to make it a wholly unsatisfactory basis upon which to come to any secure views as to its ultimate value to the family. In these circumstances, he submits that the fairest approach, to both the appellants and the respondent is to take the undoubted fact that the family have lost the services of a skilled property manager of the family assets as the basis for determining the value in money terms to the family of Mr O'Loughlin's death. As to Mr Alliott's alternative submission, he contends that the judge was entitled to rely to the extent that he did on Mr Potterton's evidence.

[11]The starting point must be the terms of the relevant provision in the Fatal Accidents Act 1976. Section 3(1) provides:

"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 dependants respectively."

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.

[12]The first clear expression of this principle to which we have been referred is in the judgment of Erle CJ in Pym -v- Great Northern Railway Company , which I have already cited. However, in Taff Vale Railway -v- Jenkins

[1913] 1 AC 1

the courts first recognised that a claim could be made in respect of services rendered gratuitously by the deceased. The main issue in that case was whether or not a dependant had to show that he or she was in receipt of a pecuniary advantage at the time of death. Their Lordships held that was not necessary. If a claimant had a reasonable expectation of pecuniary benefit in the future, that will be sufficient to found the claim. In that case the claim had been brought by a father for damages for the loss of a daughter aged 16 who was living with her parents and was nearing the completion of her apprenticeship as a dressmaker and was likely in the near future to earn remuneration which might quickly have become substantial. The jury had awarded £75. The claim was undoubtedly based mainly on the expectation of pecuniary benefit in the future. But the Lord Chancellor, Viscount Haldane pointed out that there was evidence that the daughter had come to her parent's house at night and given assistance and also might have given assistance in her mother's greengrocers shop. He was clearly of the view that that could properly form part of the basis for the jury's award. The principle was clearly established by Scrutton J in Berry -v- Humm and Co

[1915] 1 KB 627

. When dealing with the nature of a claim for damages under the Fatal Accidents Act, he said at page 631:

"It excludes compensation for injury to the deceased, or for the wounded feelings of his relatives, and is based solely on compensation for a pecuniary loss to the relatives, assessed either on the loss of such contribution in the past, or the loss of a reasonable expectation of a pecuniary benefit in the future, see the judgments in the Taff Vale Railway Company -v- Jenkins. I can see no reason in principle why such pecuniary loss should be limited to the value of money lost, or the money value of things lost, as contributions of food or clothing, and why I should be bound to exclude the monetary loss incurred by replacing services rendered gratuitously by a relative, if there was a reasonable prospect of their being rendered freely in the future but for the death."

[13]This principle has been applied time and time again by the court in cases where the claimant has lost the services of a wife or mother. It has also been applied to the loss of a husband's services as handiman, gardener, or any other such service activity as has been lost and has a money value in the sense that it will cost money to replace. I can see no difference in principle between the loss of services of that domestic nature, and the loss of services which have a positive financial value to the family. For example, a husband may be so skilled and successful in dealing with the family's investments that he has no need of a stockbroker or other financial adviser. His death, whatever other loss may result, will mean that the family will have to replace that expertise and advice at the appropriate market cost. That cost is as much a loss to the family as could be the cost of a gardener. And, clearly, the position cannot be different, indeed it is a fortiori, if the family's sole source of support is the investment portfolio managed by such a husband.

[14]It follows, it seems to me, that the court's task in any case is to examine the particular facts of the case to determine whether or not any loss in money or in monies worth has been occasioned to the dependants and if it determines that it has, it must then use whatever material appears best to fit the facts of the particular case in order to determine the extent of that loss. This is essentially the exercise which Staughton LJ indicated had to be carried out in the passage from his judgment in Wood -v- Bentall Simplex Ltd to which I have already referred. In that case, the plaintiff was a widow of a farmer who was killed in an accident. Beldam LJ, as well as Staughton LJ, made observations about the nature of the dependency claim being made by the plaintiff. He said at page 342:

"No aspect of the law of damages has been found in practice to be more dependant upon the facts of each particular case than the assessment of the loss of pecuniary benefit to dependants under the Fatal Accidents Acts. It is I think helpful to begin from certain underlying principles without regard to the current statutory provisions: a. The foundation of the claim is the dependants' loss of future pecuniary benefit from the deceased; b. Assets which the dependants were enjoying and of which they had the benefit during the deceased's lifetime and which they continue to enjoy after his death are not to be taken into account either as part of the dependency or as a deduction from it: see Heatley -v- Steel Company of Wales [1953] 1 WLR 405....."

[15]In the present case, the judge came to the clear conclusion that the dependants had lost the flair and business acumen which would, by clear inference have resulted in a successful development of the property portfolio which represented the family's assets, with consequential increases in both the capital and the income value of that portfolio. In my view the judge was clearly correct in concluding that the dependants had thereby suffered a loss capable of being measured in money terms. He could, as submitted by Mr Alliott, have been asked to embark upon a complex evaluation of the extent to which the portfolio managed by Mr O'Loughlin would have been more valuable than the assets managed by the respondent. This would have involved a comparison of on the one hand, the likely increase in income and capital to be expected from prudent investment by somebody on the respondent's behalf of these assets, for she herself on the judge's findings, could not be expected to have managed them herself, and a projection of the increase in income and capital values of the portfolio based upon an extrapolation from Mr O'Loughlin's success between 1989 and 1995. It seems to me that such an exercise, although theoretically possible, would be so riddled with uncertainty and speculation as to make it difficult for a judge to find a secure basis for any conclusions that he might seek to reach.

[16]But one thing is certain, namely that the respondent would have to have professional advice in order to manage the family assets properly and effectively. The cost of such advice therefore represents the most secure basis from which to attempt to place a pecuniary value on the loss to the dependants arising from Mr O'Loughlin's death. Whether she chooses to have such an advisor or not is another matter. But the fact will always remain that she and the dependants will have lost the services of Mr O'Loughlin as the manager of the family assets, and that loss is capable of being valued in money terms. I have no doubt, in these circumstances, that the judge was entitled to take the course that he did.

[17]During argument before us Mr Alliott sought to suggest that this case should have been about s. 4 of the Fatal Accidents Act 1976, as amended, and not s. 3. Section 4 reads:

"In assessing damages in respect of a person's death in an action under this Act benefits which have accrued or may accrue to any person from his estate otherwise as a result of his death shall be disregarded."

I confess to having been somewhat puzzled by this argument. The section is intended to provide a benefit to the claimant, not to the defendant in a Fatal Accident Act case. In the present case Mr Burton, QC did not seek to argue either before the judge or before us that any of the capital assets which devolved upon her as a result of the death of Mr O'Loughlin amounted to benefits which should be disregarded pursuant to the provisions of s.4. He was content to accept the principle referred to by Beldam LJ in Wood -v- Bentall Simplex Ltd , namely that assets which the dependants were enjoying and which they had the benefit of during the deceased's life time which they continue to enjoy after his death are not to be taken into account either as part of the dependency or as a deduction from it. If Mr Alliott's submission is that there were indeed benefits not caught by s. 4 which should have been taken into account, I have been able to discern none. In so far as the respondent now has sole control of the assets, that is no comfort to her in relation to the loss which the judge properly identified. In order to attempt to take advantage of the assets in any similar way to that which could be expected had Mr O'Loughlin not died, she must employ a manager. Implicit in the judge's findings is the conclusion that Mr O'Loughlin, with his flair, could have produced greater benefit to the dependants than a manager could. It follows that not only is there no benefit that I can see which could sensibly be prayed in aid by the appellants in reduction of the damages, but this is not a case in which the cost of replacing services would exceed the level of the lost dependency.

[18]As far as the valuation placed on the services of Mr O'Loughlin is concerned, the evidence of Mr Potterton was capable of significant criticism. First, as I have already indicated, he had included in the management costs, the costs of managing the properties owned by the companies in which Mr O'Loughlin only had a 50% share, without making any allowance for that fact. Second, the basis upon which the judge calculated a significant proportion of the cost was shown to be unsound. He divided the cost into two, in relation to each property. First was a figure for property management; second was a fee for asset management. In relation to asset management he explained that that represented an approximation based on the totality of the service which he would provide in relation to the management of the asset, namely the evaluation of the market to identify a possible purchase, and advising in relation to the purchase, advising in relation to development and letting, and advising in relation to sale. He had applied these figures to all the properties although they had in fact all been purchased already, some were let and some were developed. He was forced to accept that this was not realistic in relation to each of the individual properties. Nonetheless he maintained it would be likely, in any event, that his firm would charge 10% of the increase in the capital value of any property managed by them. At the end of the day, he considered that the overall figure was a fair assessment of the annual cost of managing Mr O'Loughlin's portfolio. The judge found as follows:

"I accept that Mr Potterton's overall approach was a realistic one in the circumstances of the case. He made no pretence about it being a wholly scientific exercise, and he recognised that a number of factors had not been taken into account by himself, such as the possible effects of inflation. He also readily accepted that his annualisation of the property asset management fees and the apportionment to individual properties was a somewhat artificial exercise which did not accord with how the matter would ordinarily be dealt with. He made it clear that the usual fee for asset management was an appropriate percentage of the capital appreciation of the assets in question as calculated over the period of the retainer. In the circumstances of this case he had not been able to carry out such an exercise but he had done the best he could on the information available to him and I accept that his efforts clearly demonstrated that he did so as fairly as he could. I have no hesitation in stating that the exercise carried out was a somewhat rough and ready one. However the end product does not offend common sense, given the size, the economic success, and the capital appreciation of the property portfolio achieved by Mr O'Loughlin. I accept that some adjustment should be made to Mr Potterton's figures to take account of the fact that some of the properties in question were jointly owned by Noelle."

[19]Although Mr Alliott robustly criticises both Mr Potterton's evidence and the judge's conclusions, it should be remembered that the assessment of the value of the loss "proportioned to the injury resulting from the death of the dependants respectively" was and remains essentially a jury exercise. Where precise calculations cannot be made, the judge is entitled to use the material before him to come to what overall appears to be a fair conclusion as to the loss which has been sustained. In the circumstances of this case, where the deceased was only 50 and was an increasingly successful businessman the total award of UK£164,000 or thereabouts does not appear in anyway extravagant. In my view, the judge was entitled to accept the evidence of Mr Potterton to the extent which he did in providing for himself a basis for his award of damages.

[20]I would therefore dismiss this appeal.

LORD JUSTICE JUDGE:

[21]I agree. Forbes J was required to award the dependants of the deceased "such damages, other than damages for bereavement..... as are proportioned to the injury resulting from the death........."

[22]At the date of his death the deceased was fifty years old. What was certain was that in the five years or so before his death, he had laid the foundations for an increasingly prosperous life for his wife and family in Ireland. In the short time left to him after he set up in business as a property developer, the deceased paid off his mortgage commitments on the family home (which by his death was worth something in the region of £500,000) and either directly or through his company acquired capital assets worth about £750,000 with an estimated equity, as the defendants conceeded, of not less than £500,000 from which he derived a substantial income. All these figures are based on the Irish Punt. His financial success may have been in part attributable to the successful development of the economy in Ireland, but I should be disinclined to overlook the absence of any evidence to suggest that such levels of prosperity were commonplace, or that everyone took the chances created by the economic environment as the deceased did, or that the judge's finding that the deceased had "considerable flair and energy as a property developer" did not correctly identify the source of his prosperity.

[23]The features of the deceased's working life which created difficulties in the ready calculation of the appropriate level of damages to be allowed to his dependants was that his formal earnings were very modest. Concentrating exclusively on the formal level of his remuneration gives a wholly misleading picture of the true financial worth of his working life. Sometimes, of course, the pay and rewards of an individual do not appear to bear any realistic relationship to the notional value which might be attributed to the efforts and responsibilities borne by him, whether as an employee, or for that matter, self-employed. Some are under-paid: some run businesses which are, for reasons quite unconnected with their own abilities, unsuccessful. In cases like these, where the earnings figures of the deceased in the period leading up to his illness and death come to be analysed, there is no gainsaying the actual figures. So, unless, for example, there is evidence to suggest that the individual in question would have changed jobs for better rewards, the notional, often subjective, evaluation of what an individual's work should have produced, as opposed to what it did produce, is usually irrelevant,. However where, as in the present case, the deceased chose to reward himself very modestly while simultaneously increasing his assets, or put another way, in effect took his rewards for his labour partly in income and partly by building up his capital and income creating assets, it would be wholly unjust to assess the damages due to his dependants (or for that matter, if rather than causing death, his injuries had made him permanently unemployable) as if the calculation of any consequent loss should be based exclusively on the modest salary he paid himself. And the difficulties of ascertaining the appropriate and fair figure does not mean that the loss is speculative, or unproved. It is merely difficult to quantify.

[24]Faced with the difficulties inherent in a claim arising from the dependency on a deceased whose financial position was neither based exclusively, or nearly exclusively, on income, nor exclusively or nearly exclusively on income derived from capital, Forbes J accepted the submission that the calculation of the loss sustained by the dependants in this case would best be ascertained by evaluating "the likely cost of maintaining developing and enhancing the property portfolio which existed at the date of Mr O'Loughlin's death".

[25]That approach followed from his conclusion, first, that despite her best efforts, the widow of the deceased lacked her husband's flair and skill as a property developer, a view confirmed by the fact that by 1997 she had sold three of the properties without reinvesting the proceeds in further properties, and second, by the concessions made by the accountant' evidence called by the defendants that the deceased's efforts in managing the property portfolio and maintaining it, produced a clear economic benefit to the family as a whole.

[26]I agree with Mr Alliott's submission that this was an unusual, probably indeed unconventional approach. The question however is whether it was inconsistent with principle, or whether the result was disproportionate. In my view, in this case it was not. Indeed although the analogy is incomplete, as Latham LJ's judgment demonstrates, it is well established that the value of the unpaid services provided by a deceased for his (or her) family may properly involve reference to the cost of supplying someone else to provide them. I merely sound the cautionary note that where the court is invited to adopt an unusual or unconventional approach in a case of this kind, an additional burden is imposed on the judge to ensure that the more conventional approach would not provide the fairest way to do justice between the parties, and, even if he is satisfied that it would not, he should stand back from the figure to which the unconventional approach had led him and examine whether it fairly reflected the practical realities of the case.

[27]Mr Alliott suggested in argument that one way of testing whether the end result was fair was to take a "snapshot" of the widow's financial position based on the money coming into the home in the year after the deceased's death, and comparing it with the same figures before his death. Although, in reply, Mr Alliott robustly denied that he was contending that no loss had been sustained, to the extent that his argument might have led to the conclusion that the deceased's widow was financially better off after her husband's death than before, I have reminded myself of the trenchant observation of Holroyd Pearce LJ in Daniels v Jones

[1961] 1 WLR 1103

that "If ...... arithmetically the conclusion must be that there is no loss in this case, arithmetic has failed to provide the answer which common sense demands. It must be remembered that this is a question of fact expressly left to the jury..... Since the question is one of actual material loss, some arithmetical calculations are necessarily involved in an assessment of the injury. But they do not provide a substitute for common sense. Much of the calculation must be in the realms of hypothesis, and in that region arithmetic is a good servant, but a bad master."

[28]We do not know the reasons for the apparent anomaly highlighted by Mr Alliott. What we do know however is that in the period before he died, the deceased had made strenuous efforts to ensure that his own and his widow's financial and tax positions were optimised. And also, although there was no direct evidence, given the cause of his death, it also seems inevitable, that his energy must have been sapped towards the end of his life by his terminal condition. In any event the additional sums coming to his widow in the year after his death may simply have been a reflection of the success of his previous investment of time and energy, success which but for his death may well have produced yet higher figures.

[29]On the assumption that the jury question referred to by Holroyd Pearce LJ, and indeed constantly emphasised in many authorities, should reflect the views of a reasonable jury seeking to achieve a fair balance between the interests of both sides on the facts of the individual case, I have examined the total figure awarded under this head by Forbes J to the dependants of a dedicated and hard working family man who died at the age of fifty, and who would have continued to work full time for another ten years, and then, gradually, wound down his own business. I have reflected on the deceased's significant financial achievements in the short years during which he was able to work as a property developer, and the high probability that he would have brought increasing financial benefits to his family. In my judgment the award made by Forbes J was indeed "proportionate" to the injury sustained by the dependants of the deceased. Accordingly the appeal should be dismissed.

[30]I agree with Latham LJ's judgment, and save to add I am unable to discern any advantage which it might have provided for the defendants, do not propose to say anything further in relation to Mr Alliott's argument based on s4 of the Fatal Accidents Act, as amended.

LORD JUSTICE SCHIEMANN:

[31]I agree with both judgments. This appeal is dismissed.

Order

Appeal dismissed with costs of £85,000 plus interest at rate of 8% form date of judgment. Application to appeal to House of Lords refused. (This order does not form part of approved judgment)