Chouza v Martins and others [2021] EWHC 1669 (QB)

Steve Hill Ltd v Witham [2021] EWCA Civ 1312

Although very different cases on the facts, these two recent judgments show the risks involved in litigation. Chouza shows the danger that having heard the evidence, a judge might accept almost the entirety of a claimant’s case. Steve Hill Ltd shows how a significant change of circumstances can undermine the basis of a claim, even if it occurred after trial while an appeal was pending.

Chouza arose from a fatal road traffic accident. The deceased was a Spanish national and 50 at the time, leaving a wife and four children. He ran his own business in Spain, but this had run into difficulty and the deceased had commenced contracting for another company, Andeona, as an operator of a construction plant and an HGV driver. A claim for €995,601 in future financial dependency was advanced, the Defendant arguing for just a quarter of that, at €254,078. Mr Justice Martin Spencer concluded the dispute overwhelmingly in the Claimant’s favour, awarding €824,088. The way the evidence was resolved shows the difficulty a defendant can face in attacking contentions advanced by a claimant. For example, the Defendant argued that it was “unlikely in the extreme” that but for his death, Andeona would have paid the deceased €250 a day net as an employee. The judge found that he was “a hard-working man”, and found the evidence of the managing director, Ms Magdalena, persuasive, citing her statement that “I don’t know what the future would have held if the deceased had survived but we would have paid whatever it took to keep him on because he was such a valued contributor to the company.” Efforts by the Defendant’s counsel to challenge such evidence were wholly unsuccessful. The decision is also notable for the judge being persuaded to depart from the conventional dependency percentages of 75% / 66 % if no dependent children, on the basis that the deceased spent very little on himself, instead awarding 85% / 70%.

Steve Hill Ltd concerned an appeal from an assessment of damages in a fatal mesothelioma claim. The deceased and his wife, a nurse, had fostered two children with special needs, and under the fostering agreement, one of them had to remain at home to look after the children, and the couple had determined that the deceased would do so. When the deceased became seriously ill, it was necessary for his wife, the Claimant in the action, to stop work. With his death she lost her full-time career. The judge found that it was the Claimant’s dependency on her husband which had been lost and valued that loss at the cost of the replacement care, i.e. the value of the services lost as a result of her husband’s death. The attack on this aspect of the decision on appeal was dismissed. The Appellant sought to argue that the true loss of the deceased’s services was to the children. Nicola Davies LJ observed that the Claimant had lost the benefit of the service her husband provided in caring for the children: “That being so, she can legitimately claim the cost of securing those services to enable her to place herself in the position she was prior to her husband’s death.” However, the appeal did succeed on a wholly new aspect of the case, namely that the award was erroneous in light of events since trial, as the children had subsequently been removed from the Claimant’s care. The Court of Appeal noted that although dependency was valued at the date of death, the continuance of dependency was an issue that was relevant to that valuation, and unsurprisingly considered that the factual matrix had fundamentally changed since the judgment. The approach set out in Ladd v Marshall [1954] 1 WLR 1489 was followed (the new evidence was credible, highly relevant to the outcome, and could not have been obtained with reasonable diligence prior to the trial). The Court of Appeal considered “To refuse to admit the evidence ‘would affront common sense, or a sense of justice’”, and the case was remitted to the trial judge for re-evaluation.