Court of Appeal

Published June 25, 2008

Arnup v M. W. White Ltd

Payments to a widow from a death in service benefit scheme and a trust fund established by an employer, were to be disregarded when assessing damages following an admission of liability.

The Court of Appeal (Lord Justice Ward, Lord Justice Dyson and Lady Justice Smith) so held in a reserved judgment on May 7, 2008, allowing the appeal of Melanie Jane Arnup and dismissing the cross-appeal of M. W. White Ltd, from Judge Seymour, QC, who, sitting as a Queen’s Bench Division judge on March 27, 2007, held that neither £129,600, paid to Mrs Arnup out of a death in service benefit scheme, nor £100,000, paid out of a trust fund established by White’s fell to be disregarded under section 4 of the Fatal Accidents Act 1976, as substituted by section 3(1) of the Administration of Justice Act 1982, when damages came to be assessed, following White’s admission of liability for the death in service of Kevin Arnup.

LADY JUSTICE SMITH said that the payments were benefits which had accrued to the claimant, not from her husband’s estate but otherwise as a result of his death; each payment fell within section 4 and was 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 section 4 which provided that all benefits resulting from the death were to be disregarded.

Where a person who might 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 section 4 but a conditional payment on account.

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