Arnup v M W White Ltd: [2008] EWCA Civ 447

CA: Ward, Dyson and Smith LJJ: 7 May 2008

The husband of the first claimant was employed by the defendant company. While he and his son, the second claimant, were working at the premises of the defendant, he was killed in an accident. Shortly thereafter the first claimant received two sums of money: £129,600 paid out of a death in service benefit scheme and £100,000 paid out of a trust established by the defendant. The claimants brought proceedings seeking damages variously arising out of loss of dependency and personal injury caused by negligence and breach of statutory duty. The defendant admitted primary liability for the death in service, and damages were to be assessed. A preliminary issue was directed to determine whether, as part of the assessment of the first claimant’s damages for loss of dependency, either or both of the payments made to her fell to be disregarded pursuant to sections 3(1) and 4 of the Fatal Accidents Act 1976 as benefits which had accrued, or which would accrue, from the estate of the deceased or otherwise, as a result of his death. The judge held that neither payment had accrued to the claimant as a result of the death, as both had been made as the result of independent decisions which broke the chain of causation; so that the payments did not fall to be disregarded under section 4. The judge went on to hold, however, that, while the payment of £129,600 had to be taken into account and set off against the claims made by the first claimant for loss of dependency, as it did not fall within the common law exceptions to deductability, the £100,000 payment came within the benevolence exception and did not have to be taken into account.

The first claimant appealed and the defendant cross-appealed.

The Court of Appeal held:
The use of the word “accrued” in the amended section 4 of the Fatal Accidents Act 1976 did not require the disregard only of benefits which came to a person as a matter of entitlement. Under section 4 all benefits received as a result of the death were to be disregarded, and the issue of causation was no longer a matter of importance. The payments made to the first claimant had clearly accrued to her as a result of her husband’s death, since the sums would never have become available had it not been for the death. Accordingly, the payments fell within section 4 of the 1976 Act and were to be disregarded.

The appeal was allowed and the cross-appeal dismissed.

Appearances: Robert Weir (Kester Cunningham John, Thetford) for the first claimant; Christopher Purchas QC (Fox Hartley, Bristol) for the defendant.