| FATAL ACCIDENTS ACTS — Damages — Widow’s dependency — Husband killed in accident at work— Widow receiving payments out of death in service benefit scheme and trust fund established by employer — Whether “benefit” to be disregarded in assessing damages — Fatal Accidents Act 1976 (c 30), ss 3, 4 (as substituted by Administration of Justice Act 1982 (c 53), s 3(1))
Arnup (as administratrix and on her own behalf) v MW White Ltd [2008] EWCA Civ 447; [2008] WLR (D) 140
CA: Ward, Dyson and Smith LJJ: 7 May 2008
Where, after the death in service of her husband, a woman had received payments out of a death in service benefit scheme and a trust fund established by the employer, such payments fell within the disregard provision within s 4 of the Fatal Accidents Act 1976 when damages were to be assessed following an admission of liability.
The Court of Appeal so held when allowing the appeal of the claimant, Melanie Jane Arnup, and dismissing the cross-appeal of the defendant, MW White Ltd, from a decision upon a preliminary issue of Judge Seymour QC, sitting as a judge of the Queen’s Bench Division on 27 March 2007. The judge held that neither £129,600, paid to the claimant out of a death in service benefit scheme, nor £100,000, similarly paid out of a trust fund established by the defendant, fell to be disregarded pursuant to s 4 of the Fatal Accidents Act 1976 when, following the defendant’s admission of primary liability for the death in service of the claimant’s husband, Kevin Arnup, damages fell to be assessed. The judge further held that on the facts the £100, 000 payment should not be deducted but the £129,600 should be. The claimant appealed as to the latter finding and the defendant cross-appealed as to the former.
Sections 3 and 4 of the 1976 Act (as substituted by s 3(1) of the Administration of Justice Act 1982) provide, inter alia: “3(1) In the action such damages ... may be awarded as are proportioned to the injury resulting from the death to the dependants respectively... 4. In assessing damages in respect of a person’s death in an action under this Act, benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.”
SMITH LJ said that the issue in the appeal and cross-appeal was the same, viz whether the payments were caught by s 4 of the 1976 Act so that they fell to be disregarded in assessing damages. The payments were benefits which had accrued to the claimant, not from her husband’s estate but “otherwise” as a result of her husband’s death, and they fell within the provision and were to be disregarded. Parliament’s intention in passing the 1982 amendment was to continue and complete the legislative trend towards greater disregard of benefits, culminating in the substituted s 4 which provided that all benefits resulting from the death were to be disregarded. Thus where a person who might in future be sued and held liable for a death wished to make an ex gratia payment, but wished to have it taken into account when damages were assessed, he would have to make the payment subject to that stipulation so that it would not be a benefit caught by s 4 but a conditional payment on account.
DYSON and WARD LJJ agreed.
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