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 demonstrates that the causation issue in this case appears to have been something of a red herring and this will rarely ever be a relevant factor in this kind of claim. If the payment was caused by the death, then section 4 FA applies. If the benefits did not result from the death, they are irrelevant to the assessment of damages.

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