Benefits Received By Widow Should Not Be Taken Into Account When Assessing Damages

Arnup (administratrix of Arnup deceased) and another v MW

White Ltd [2008] EWCA Civ 447

The facts: H was killed at work. H's widow, C, received

two lump sums:

The first lump sum of £129,600 came from a death in

service benefit scheme operated by H's employer (D). D

paid the premiums for the scheme, under which a lump sum was

payable to D if an employee died. D then had the power to pay

it to the deceased's estate or his dependants.

The second lump sum of £100,000 came from D's

"Employee Benefit Trust". The trustees of the trust

fund had insured the lives of various employees (including

H), and decided to pay the proceeds of the insurance policy

to C.

C pursued a dependency claim against D under the Fatal

Accidents Act 1976 (FA). D contended that both payments should

be deducted from the dependency claim. The trial judge found

that neither of the payments had accrued as a result of H's

death, because in each case the money had been paid as the

result of independent decisions of D and of the trustees.

H's death was deemed to be the occasion triggering the

exercise of the discretion; not the cause of the payments being

made.

Section 4 Fatal Accidents Act 1976:

'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.'

As the payments were not to be disregarded under section 4

FA, the judge then considered the common law exceptions to the

basic rule that any pecuniary advantage accruing to a

deceased's estate falls to be taken into account in the

assessment of damages. He held that the neither payment fell

within the insurance exception, but found that the death in

service benefit fell within the benevolence exception and

should be deducted from her damages award. Both C and D

appealed.

The decision: In a unanimous ruling the

Court of Appeal decided neither payment should be deducted. If

the judge's finding that neither payment had accrued to C

as a result of the death was correct, then the common law

principle simply did not apply and the receipt of the lump sums

was irrelevant to the assessment of damages.

Comment: This ruling...