Damages Notes

Damages

Learning Objectives:

Identify and distinguish between the different types of damages available in tort law.
Explain the fundamental principles behind the assessment of damages in tort law.

Types of Damages

Damage to Property: Compensation awarded when a claimant’s physical property (e.g., a car, home, or personal belongings) is damaged or destroyed due to another's tortious act.
Damage for Personal Injury: Compensation for bodily harm, pain and suffering, and loss of amenity.
Fatal Accidents Act: When the tort results in death, different statutes apply to determine who can claim and what for.

Shall we teach Damages first?

Grounds abstract doctrine in real-world consequences
Exposes hidden political and distributional choice
Enhances student engagement and critical thinking

Types of Damages

Compensatory: Restore the claimant to the position they were in before the tort.
Restitutionary: Stripping gains from the defendant rather than compensating the claimant.
Exemplary/Punitive: Punish the defendant and deter outrageous conduct.
Aggravated: Enhance compensatory damages for humiliating or insulting treatment.
Nominal: Awarded when a right is violated but no actual loss is proven.
Contemptuous: Indicates legal right was infringed, but the court disapproves of the claim.

Lim Poh Choo v Camden & Islington AHA [1980] AC 174

Key facts: Dr. Lim Poh Choo was a 36-year-old psychiatrist who entered the hospital for a minor operation but, due to medical negligence, suffered a cardiac arrest that caused severe brain damage, leaving her largely unconscious and totally dependent on care. Her life expectancy remained normal, and although the hospital admitted liability, the dispute centered on the assessment of damages.
Issue: Can damages be awarded for loss of earnings and loss of amenities when the claimant is unaware of the loss?
Principle:
- Loss is compensable even if the claimant is unaware of it.
- Damages must reflect real deprivation, not the claimant’s ability to enjoy the award.
- There must be no duplication between care costs and living expenses.
- Compensation should aim to restore the claimant to their pre-injury position as far as money allows.

Compensatory Damages

Restitutio in integrum: “the principle of the law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong” - Lord Scarman.
Lim Poh Choo case.

Example of Restitutionary damages – Unjust Enrichment Stadium Capital Holdings v St Marylebone Properties Co Plc [2010] EWCA Civ 952

Key facts: The claimant brought an action for trespass to land, alleging that the defendant's advertising hoarding unlawfully projected into the airspace above their property. The claim sought damages for the unauthorized use of that airspace between 2004 and 2008.
Issue: How damages for trespass to land—specifically for intrusion into airspace—should be properly assessed?
Principle:
- Damages for trespass should usually reflect a reasonable hypothetical license fee, not the trespasser’s full profits.
- An account of profits is an exceptional remedy, reserved for the most serious trespass cases.

Example of Restitutionary damages – Unjust Enrichment Attorney General v Blake [2001] 1 AC 268

Key facts: Former British spy, George Blake, published an autobiography revealing information about his work with the Secret Intelligence Service, breaching a lifelong contractual duty of confidentiality. The Crown sought to recover the profits he earned from the book’s publication.
Issue: The key issue was whether the Crown could claim restitutionary damages—specifically, an account of profits—for a breach of contract, even though it had suffered no financial loss.
Principle:
- The House of Lords held that in exceptional cases, where traditional remedies are inadequate and the claimant has a legitimate interest in preventing the defendant’s profit, an account of profits may be ordered for breach of contract.

Rookes v Barnard [1964] AC 1129

Key Facts: The claimant, Rookes, was forced to resign from his job after trade union officials threatened the employer with a strike unless he was dismissed for leaving the union.
Legal issue: Was the claimant entitled to exemplary (punitive) damages for intimidation, and if so, under what circumstances could such damages be awarded?
Principle: Lord Devlin established that exemplary damages are only available in three specific categories:
- Oppressive, arbitrary or unconstitutional acts by government servants (e.g., misuse of police powers).
- Wrongdoing calculated for profit, where the defendant hoped to make more money than they'd pay in compensation.
- Where expressly authorized by statute.

Exemplary Damages cont.

Broome v Cassell & Co Ltd [1972] AC 1027
- Facts: A publisher printed a book falsely accusing a naval officer (Captain Broome) of negligence during WWII.
- Legal issue: The publisher had deliberately published defamatory material, calculating that increased sales would outweigh any libel damages.
- Principle: The House of Lords upheld an award of exemplary damages, reinforcing the rule from Rookes v Barnard that such damages are available where the defendant calculates that wrongdoing will be profitable.
John v MGN Ltd [1995] CA, More recent comparable case
Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122
- Facts: A police officer falsified records leading to a wrongful prosecution.
- Legal issue: Could exemplary damages be awarded even if the tort was not previously recognized as allowing them?
- Principle: The House of Lords held that exemplary damages are not limited to certain torts. Lord Scott expressed serious reservations, questioning whether the Rookes categories should remain binding.

AGGRAVATED DAMAGES

Thompson v Commissioner of Police of the Metropolis [1998] QB 498
- Key Facts: Miss Thompson was lawfully arrested but then forcibly placed in a cell using unnecessary force by several officers, during which her hair was pulled out and she was left bruised and distressed, describing the experience as feeling "like I was being abused physically and sexually." She was wrongfully detained in a cell for four hours, beyond the time necessary, and later maliciously prosecuted on false charges.
- Legal issue: The appeal focused on whether the jury’s awards of aggravated and exemplary damages were excessive.
- Principle: Aggravated damages may be awarded where the defendant's conduct has injured the claimant’s dignity or feelings, including through humiliating, high-handed, or malicious behavior.
- Law Commission has called for clarification in Report No 247, Aggravated, Exemplary and Restitutionary Damages (1997). However, as yet no action has been taken. See also Government Consultation Paper, The Law on Damages (CP/09/07, May 2007); Ministry of Justice, Civil Law Reform Bill: Response to Consultation (January 2011).

Nominal and Contemptuous Damages

Nominal Damages
- Lumba v Secretary of State for the Home Department [2011] UKSC 12
  - The claimants were foreign nationals who had completed prison sentences but were unlawfully detained under unpublished immigration policies.
  - Principle: The Supreme Court held that nominal damages were appropriate where a legal right was infringed (here, liberty), but no actual loss flowed from the wrongful act because detention would have occurred anyway.
  - Nominal damages vindicate the claimant’s rights even in the absence of measurable loss.
Contemptuous Damages
- Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024
  - Bruce Grobbelaar, a professional footballer, sued The Sun for defamation after they accused him of match-fixing. While the jury found the publication to be technically defamatory and awarded him £1 in damages, it was also clear from the evidence that he had accepted money in suspicious circumstances.
  - Principle: The House of Lords upheld the £1 award as contemptuous damages — acknowledging that the claimant had been wronged in law, but disapproving of his conduct and viewing the claim as undeserving of substantial compensation.
  - Contemptuous damages are awarded where a legal right is technically violated, but the court disapproves of the claimant’s conduct and views the claim as of little merit.

Damages to Property

Destruction/Loss of Property:
- Direct Loss
  - replacement at current market value; or
  - difference between original value & any remaining value or interest in the property.
  - The Winkfield [1902] P 42
- Consequential Loss
  - Loss of Use
  - Wasted Expenditure (wasted expenditure claims in tort when the claimant doesn't own the property).
  - Attia v British Gas [1988] QB 30
  - Spartan Steel v Martin [1973] QB 27
Consequential Loss
- Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 WLR 433
- Cost of Repair
- Giles v Thompson [1994] 1 AC 142
- Cost of Hire
- Dominion Mosaics v Trafalgar Trucking Co Ltd [1990] 2 All ER 246.

Damages for Personal Injury

Special Damages (pecuniary losses): These cover quantifiable financial losses up to the date of trial.
1. Medical expenses (e.g., prescriptions, equipment).
2. Medical treatment (e.g., physio, counseling).
3. Loss of earnings (actual lost income due to injury).
4. Cost of Travel (e.g., taxi fares to hospital appointments).
5. Cost of Care (e.g., nursing care).
6. Cost of Help (e.g., cleaning, childcare).
7. Damage to property.
General Damages/non-pecuniary losses
1. Pain, suffering, loss of amenity
2. Loss of Congenial Employment
3. Future Losses
4. Damage to reputation
5. Loss of Employment
6. Mental distress
7. Handicap in the Labour Market
8. Loss of Prospects

Pain, suffering, and loss of amenity

Pain and suffering→ Physical pain and emotional distress (past and future).
Loss of amenity→ Loss of enjoyment of life (e.g., hobbies, relationships, daily activities).
The Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases are a widely used reference tool in English law to help courts, lawyers, and insurers assess the appropriate level of compensation for non-pecuniary losses (i.e., general damages) in personal injury claims.
Comparable cases give shape and context to damages awards, anchoring them in precedent while allowing courts flexibility to adapt to each claimant's unique experience.

Examples of Awards

KXM (A CHILD, BY HER MOTHER AND LITIGATION FRIEND, SXM) v ABERTAWE BRO MORGANNWG UNIVERSITY LOCAL HEALTH BOARD (2020)
- Quantum Report Type: Kemp/Lawtel
- Kemp Classification: A Most severe injuries; N Injuries resulting from clinical negligence
- Kemp Sub-classification: A1 Quadriplegia; N8 Brain damage at birth
- PSLA Damages (RPI): £336,637
- Total Damages (RPI): £5,386,193
- Award Type: Out of Court Settlement (approved) | 3 April 2020
- Age at Injury: Newborn | Age at Award/Settlement: 7 | Gender: Female
CBY V MEDWAY NHS FOUNDATION TRUST (2019)
- Quantum Report Type: Lawtel
- Kemp Classification: A Most severe injuries; C Psychiatric injuries; E Damage to the senses; N Injuries resulting from clinical negligence
- Kemp Sub-classification: A1 Quadriplegia; C1 General psychiatric disorders; E2 Hearing and speech; N8 Brain damage at birth
- PSLA Damages (RPI): £265,389
- Total Damages (RPI): £3,198,273
- Award Type: Out of Court Settlement | 16 July 2019
- Age at Injury: Newborn | Age at Award/Settlement: 19 | Gender: Male

Judicial College Guidelines Examples

Tetraplegia (Quadriplegia): $£396,140 – £493,000$
- Mid-range: No pain; full awareness; life expectancy 25+ years; help with bodily functions.
- Top-end: Physical pain; impaired senses/communication; possible brain damage.
- Reductions: Lack of awareness / short life expectancy PEG use (loss of food/drink enjoyment).
- Other factors: Age, residual movement, pain relief, therapies, respiratory issues, depression.
Paraplegia: $£267,340 – £346,890$
- Factors affecting award: Physical pain, Independence, Depression, Age & life expectancy, Impact on sexual function, Risk of increasing paralysis (e.g., syringomyelia).
- May justify provisional damages.
Shorter Durations: Around $£60,210$
- For claimants who suffer paraplegia but die (from unrelated causes) within ~2 years
- Award reflects some ‘front-loaded’ compensation
Total Blindness and Deafness: In the region of $£493,000$
- Among the most devastating injuries possible.
Total Blindness: In the region of $£327,940$
Loss of Sight in One Eye + Impaired Vision in the Other:
- Serious risk of further deterioration: $£117,150 – £219,400$
- Risk beyond sympathetic ophthalmia (ii)
- Reduced vision + additional problems (e.g., double vision): $£78,040 – £129,330$
Total Loss of One Eye: $£66,920 – £80,210$
- Depends on: Age, Cosmetic effect, Psychiatric consequences

PTSD

Severe: $£66,920 – £141,240$
- Marked problems with daily life, work, and relationships.
- Very poor prognosis
Moderately Severe: $£23,270 – £66,920$
- Significant difficulties in functioning
- Prognosis more optimistic than in severe cases Includes: Psychiatric injury after traumatic birth or stillbirth. Work-related stress causing long-term disability.
Moderate: $£7,150 – £23,270$
- Similar symptoms to above, but marked improvement by trial.
- Good prognosis Includes: Shorter-term work-related stress cases.
Less Severe: $£1,880 – £7,150$
- Awards based on: Length of disability Effect on daily life and sleep May overlap with minor phobia or anxiety cases

Lump Sum Payments

““…there is really only one certainty: the future will prove the award to be either too high or too low…” ” Lord Scarman Lim Poh Choo

Future loss of earnings

Vicissitudes of life (e.g., chance that working life could be cut short).
Acceleration (received the money early).
Discount rate: Wells v Wells; Thomas v Brighton HA; Page v Sheerness
Number of lost working years x Net annual loss of income
Discount the multiplier to take account of:
Ogden Tables (actuarial tables)

Formula

Future Loss = Multiplier × Net Annual Loss of Income (Multiplicand)
The multiplicand is your estimate of actual annual financial loss (e.g., net earnings, care costs). This stays constant — it reflects today’s value of loss per year.
The multiplier, however, represents the number of years of future loss, but discounted to reflect:
- The fact the lump sum is paid now rather than year by year (acceleration).
- The risk that life may not go as expected (vicissitudes of life).

Discount

Achieved through the Discount Rate
- This reflects that a claimant receiving a lump sum today can (in theory) invest it.
- The Ogden Tables apply the discount rate annually to reduce the present value of future losses.
- The case of Wells v Wells [1999] 1 AC 345 held that the real rate of return on index-linked gilts (ILGS) should be used to set this discount rate.
- As of 2024: The discount rate is 0%, set by the government under the Damages Act 1996
Acceleration
- Applied through ‘contingencies other than mortality’
- These account for non-fatal risks that might prevent a claimant from working their full career: e.g., illness, redundancy, caring responsibilities.
- In past Ogden Tables, courts made ad hoc percentage reductions (e.g., 15%).
- In Ogden Tables 7+, this is done via adjustment factors (Tables A–D) based on:
  - Age
  - Sex
  - Disability
  - Educational attainment
  - Employment status
Vicissitudes of Life

Discount Rate History

1999 plus 3% Wells v Wells
- s.1 Damages Act 1996 – Lord Chancellor’ s power to set the discount rate
2001 plus 2.5%
Feb 2017 minus 0.75%
- Reviewed under Civil Liability Act 2018
July 2019 minus 0.25%

Wells v Wells; Page v Sheerness Steel Co Plc; Thomas v Brighton HA [1999] 1 AC 345

Key Facts: Wells v Wells involved three separate claimants (including Margaret Wells) who suffered serious personal injuries and were awarded damages for future financial losses such as care costs and loss of earnings. The courts had to determine how to calculate those damages as lump sums.
Legal issue: How should courts determine the “discount rate” when converting future losses into a present lump sum? Specifically, should they assume that the money will be invested in: Risky investments (like equities, assumed by the Court of Appeal), or Safe investments (like index-linked government securities, as used by the trial judges)?

What did the Judges say?

High Court
- Judge used a discount rate of 2%, based on safe investments like Index-Linked Government Securities (ILGS). Their reasoning: injured people should not be forced to take financial risks to preserve their compensation.
Court of Appeal
- Disagreed.
- Said damages should reflect returns from higher-yielding, mixed investments (like equities). Applied a higher discount rate (3–4.5%), which reduced the compensation. Their reasoning: ILGS were too cautious and out of step with real-world investing.
House of Lords (Final Decision)
- Restored the trial judges' approach.
- Held that courts must assume claimants will invest only in safe, risk-free assets like ILGS. Set a 3% real discount rate (later revised by government authority).

Future loss of earnings Example of calculation

Example of a male Claimant aged 45 at trial. Employed as an HGV driver earning £20,000 p/a net of tax, intending to retire at age 65. Due to injuries he is unable to work again. Calculate his future loss of earnings.

Not as simple as: 20 years x £20,000 = £400,000

Multiplier
- Ogden Tables (7th edition) Loss of Earnings to age 65 (male): at 2.5% was 15.27 (now 19.77)
- Discount for contingencies other than mortality: 0.88
- Adjusted multiplier: (2.5%) 15.27 x 0.88 = 13.44
- Adjusted multiplier: (-0.25%) 19.77 x 0.88 = 17.3976
Multiplicand
- £20,000 net income
Total
- 268,800
- 347,952

Loss Earning Potential

Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132
- Facts: Injured electrician returned to lower-paid work. Could no longer do his original, more physically demanding (and better paid) job.
- Held: Awarded for loss of earning capacity. Injury left him less competitive in the labor market, with fewer future job options.
- Principle: Claimants may recover where their injury leaves them in less secure or lower-paid employment, even if they are currently working.
- E.g., Employed as an electrician = £20, 000, Employed on a help desk = £10, 000, Annual loss = £10, 000

Handicap in the Market

Smith v Manchester Corporation [1974] EWCA Civ
- Facts: Young woman injured in a traffic accident. Returned to work but was less able to compete on the open labor market.
- Held: Awarded a lump sum for loss of earning capacity, despite being in employment. Injury made her more vulnerable to future unemployment or reduced job flexibility.
- Principle: Even if a claimant returns to the same job, damages may be awarded if injury causes a handicap on the labor market. Take into account – employment history, length of working life, type and severity of injury, type of employer,
- Valued typically at 6 months to 3 years’ net earnings.

The Career Model

Palmer v Mantas [2022] EWHC 90
- In Palmer, the court instead accepted a structured career trajectory that estimated:
  - The claimant’s likely career progression (with specific roles and salaries projected over time).
  - Her earning potential pre-accident (including a projected rise to Chief Marketing Officer earning $£125,000$ ).
  - The post-accident residual earning capacity (eventually, part-time work at $£20$ /hour).
  - A multiplier/multiplicand method was used to calculate the actual difference between likely career earnings and post-injury earning capacity.
- Key aspects:
  - Expert vocational evidence and claimant testimony supported a defined career path.
  - The judge found this specific, structured projection more appropriate given the claimant’s education, work history, and ambitions.
  - The approach led to a precise, future-focused calculation, rather than a speculative broad award.

Costs of Care

No obligation to use the NHS/Social Care – so can charge the cost of private care s.2(4) Law Reform (Personal Injuries) Act 1948
NHS can recover the cost of providing care from the Defendant s.150 Health & Social Care (Community Health Standards) Act 2003.

Cost of Care cont.

Gratuitous Care
- Donnelly v Joyce [1974] QB 454:
  - Facts: The claimant, a young boy, was injured due to the defendant’s negligence. During his recovery, his mother provided unpaid care—including feeding, bathing, and assisting him—instead of paid professional help. The defendant argued that since the claimant didn’t pay for the care, no financial loss had been suffered.
  - “The law recognises the value of the services given voluntarily by relatives or friends. It would be wrong for the wrongdoer to escape liability just because the services were not paid for.”
- Hunt v Severs [1994] 2 AC 350:
  - The claimant (Ms. Severs) was injured in a motorcycle accident caused by her partner Mr. Hunt, who was driving. After the accident, Mr. Hunt (the defendant) provided significant care and support to her during her recovery. The legal question was whether Ms. Severs (the claimant) could recover the cost of that care from Mr. Hunt himself — even though he was the one who gave it.
  - A tortfeasor is not liable to compensate a claimant for the value of gratuitous care or services that they themselves have already provided. When the defendant is the care giver

Deductions

Sick pay is deducted from damages for loss of earnings.
Government benefits are deducted from loss of earnings, cost of care & loss of mobility.
Department of Work & Pensions (DWP) can claw back from the Defendant (i.e., recover) benefits payable to the Claimant for 5 years following the accident – s.6 Social Security (Recovery of Benefits) Act 1997.
If D has paid any money to C voluntarily it will be deducted from the damages award.

No Deductions

Contributory pension scheme (considered to be a type of insurance).
Proceeds of personal injury insurance.
Charitable payments.

Alternatives to Lump Sums

Provisional damages – s.32 Senior Courts Act 1981:
- s.32A(2)
  - (a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and
  - (b) further damages at a future date if he develops the disease or suffers the deterioration.
Periodical Payments – s.2 Damages Act 1996 (as amended by SS.100-101 Courts Act 2003)
- Courts must consider if Periodical Payments are appropriate in cases of future pecuniary losses.

Fatal Accidents

Fatal Accidents Claims
- Estate (executors/administrators)
  - bring action as if they were victim – money paid to beneficiaries.
    *Cause of action…will survive the death of either party - s.1(1) Law Reform (Miscellaneous Provisions) Act 1934.
- Victim’s dependents
  - may have a separate & independent cause of action.
  - Must show relationship & financial dependence upon the deceased. Did C have a “reasonable expectation of a pecuniary benefit”?
  - Fatal Accidents Act 1976

Awareness of Suffering

Hicks v Chief Constable of South Yorkshire [1992] 2 All E.R. 65
- Facts: The case involved the tragic deaths of two teenage sisters at the Hillsborough disaster. Their parents, acting as administrators of their estates, brought claims under the Law Reform (Miscellaneous Provisions) Act 1934, seeking damages for pain and suffering experienced prior to death.
- Issue: Could damages be awarded for the brief physical and psychological suffering the girls might have endured before death?
- Held: Appeal dismissed — the House of Lords upheld the lower courts’ findings that:
  - There was no sufficient evidence the girls suffered pain, suffering, or physical injury before they lost consciousness.
  - Medical experts agreed they likely lost consciousness within seconds and died within five minutes.
- Principle: To recover under the 1934 Act, the estate must prove actual pain and suffering before death.
  - Where unconsciousness followed rapidly and death was swift, no award is made..
  - Further, since those who survived uninjured could not recover for mere terror, estates of deceased victims could not either.

Distress due to awareness of reduced life expectancy

Kadir v Mistry & Ors [2014] EWCA Civ 1177
- Facts: The claimant, Mr. Kadir, brought a claim as the widower and personal representative of his wife, Saleha Begum, who died of gastric cancer at the age of 32. The claim was made against her GPs for negligent delay in diagnosis, which led to a late referral for treatment. It was accepted that the delay shortened her life expectancy by about two years.
- Issues: Was the estate entitled to damages for pain, suffering, and loss of amenity during life? Could the estate recover damages for mental anguish caused by awareness of reduced life expectancy, under s.1(1)(a) of the Administration of Justice Act 1982?
- Held:
  - No damages awarded for pain and suffering: The deceased did not suffer additional symptoms as a result of the negligence. The symptoms she experienced before death were those she would have suffered anyway, but later.
  - Damages awarded for awareness of reduced life expectancy: The court held that proof of subjective fear or distress caused by knowledge of reduced life expectancy was sufficient to justify an award under the 1982 Act.

Loss of Earnings – up to the time of death

Gammell v Wilson [1982] AC 27
- Facts: Edward Gammell, a 15-year-old boy, died as a result of negligent driving. His father brought a claim under the Law Reform (Miscellaneous Provisions) Act 1934 for the benefit of his estate, and under the Fatal Accidents Act 1976 as a dependant
- Issue: Could the estate of a deceased person recover damages under the Law Reform (Miscellaneous Provisions) Act 1934, s. 1, for loss of earnings during the years the deceased would have lived and worked (the “lost years”), despite the restriction in section 1(2)(c)—as inserted by section 4 of the Administration of Justice Act 1982—which states that the damages awarded "shall be calculated without reference to any loss or gain to his estate consequent on his death"?.
- Principle:
  - The House of Lords held that the estate can recover damages for lost years earnings under s.1 of the 1934 Act because the cause of action had vested in the deceased prior to death and survived for the benefit of the estate.
  - However, damages for loss of expectation of life were reduced to a conventional figure (£1,250 in this case), and funeral expenses were upheld as recoverable.

Dependents

Who is a dependant?
- Spouse (including civil partners)
- Unmarried couples living as husband & wife for 2 years. Swift v SoS Justice [2013]
- Parents & ascendants (incl. anyone treated as a parent).
- Children & descendants (incl. anyone treated as a child).
- Brother, sister, uncle, aunt & the issue thereof.
- Stepchildren (s.1(5)FAA 1976).
S.1(3)FAA 1976 Law Commission proposed a test based upon “reasonable expectation”.
Must show relationship & financial dependence upon the deceased. Did C have a “reasonable expectation of a pecuniary benefit”?

Swift v SoS Justice [2013] EWCA Civ 193

Facts: The claimant, Laurie Swift, had been in a committed relationship with Mr. Winters and had lived with him as his partner for approximately six months before his death in a workplace accident. Although they had not cohabited for the statutory minimum of two years required under section 1(3)(b) of the Fatal Accidents Act 1976, they had intended to remain together long term, and their child was born after Mr. Winters’s death. Ms. Swift’s claim for bereavement damages and loss of dependency was denied under the Act.
Issue: Whether section 1(3)(b) of the FAA 1976, which excludes cohabitants of under two years from dependency claims, is discriminatory and incompatible with: Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for family life) of the ECHR.
Principle: It is a proportionate and lawful restriction on who may claim for loss of dependency, designed to ensure a threshold of permanence in relationships.

Bereavement Award and Loss of Support

Loss of support
- Based upon the dependant’s “reasonable expectation of support” from the deceased – current/future.
- Can be loss of income, or reasonable cost of care.
Bereavement Award - currently $£12,980$ (fixed by statutory instrument):
- Spouse/civil partner of the deceased; or
- Parents of a minor if the deceased was under the age of 18.

Davies v Powell Duffryn Associated Collieries Ltd [1942] A.C. 601

‘…the starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will gave a datum or basic figure which will generally be turned into a lump sum … That sum, however, has to be taxed down by having due regard to uncertainties…’
Start with the deceased’s earnings, subtract their personal living expenses, and multiply the remainder (the ‘dependency’) by a suitable multiplier—adjusted for uncertainties like life expectancy and job stability—to calculate a lump sum award.

s.4 FAA 1976 & McIntyre v Harland & Wolff [2006]

Facts: Mr. Duncan McIntyre died of mesothelioma from asbestos exposure at work. He returned from Libya in 2002 after diagnosis and received a Rule 9 termination payment and statutory gratuity. His widow claimed dependency damages for the retirement benefits he would have received
Issue: Could the claimant recover dependency damages under the Fatal Accidents Act 1976 for the hypothetical retirement benefits the deceased would have received? Double recovery?
Principle:
- A dependant (like a widow) can recover damages for retirement benefits the deceased would likely have received, if it's shown—on the balance of probabilities—that the deceased would have lived to retirement and received those benefits.
- The general