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This is the latest in a series of recent reported cases addressing the approach to assessment of replacement services.
Deceased (D) died in October 2025 after contracting mesothelioma. D was the full time carer for his wife before he died, but he needed some help from his sons during the final three months of his life. After D’s death, her sons took over the care. D’s wife subsequently needed care in a care home from Jan 2026. Had D not died, it was accepted that D would have continued to look after his wife at home, and he would have outlived her. It was a factual finding that but for D’s death, his wife would not have gone into a care home and was likely to live to 2027.
The key points:
1. There was a dispute between the parties as to the claim on behalf of D’s estate for “replacement services” – this being the care that D was unable to provide to his wife from the time he was diagnosed with mesothelioma (July 2025) until his death (October 2025), which was replaced by care provided by his two sons instead. The two sons didn’t give up work to be able to provide that care. The Defendant’s position was that D wasn’t able to provide care from August 2025 (when D was in hospital himself from his mesothelioma diagnosis). It was held that the care D provided waxed and waned and the Court assessed replacement services by the Defedant’s proposed figure which was the equivalent of one month’s replacement care. It was held that D never stopped giving his wife care despite it having waxed and waned in the lead up to his death. A 25% discount for the gratuitous nature of the care was applied.
2. The judgment has a good summary of the guiding principles in services dependency claim from paras 37-43 inclusive, which we reproduce here (emphasis added in bold):
Firstly, the guiding principle under s.3(1) FAA is quantifying the dependants’ loss, based upon their reasonable expectation of pecuniary benefit from continuance of the life of the deceased, which depends on the facts of the particular case. In Witham (the most important authority to this case I discuss in more detail), Nicola Davies LJ reviewed previous cases, including at [16] Cape v O’Loughlin [2001] EWCA Civ 178:
“Latham LJ [in Cape], in considering the s.3 FAA dependency valuation, identified the question to be answered as…. the extent to which the dependants have been deprived of a ‘reasonable expectation of pecuniary advantage from the continuance of the life of the deceased’.…At [14 he] stated: ‘…the court’s task in any case is to examine the particular facts of the case to determine whether or not any loss in money or in monies worth has been occasioned to the dependants and if it determines that it has, it must then use whatever material appears best to fit the facts of the particular case in order to determine the extent of that loss’…..”
In Witham, Davies LJ put it as follows at [41]:
“The assessment of the dependency valuation is fact specific. In approaching such an assessment, the court should identify and assess the loss which is truly suffered..”
Secondly, whilst cases have drawn a distinction between the methods of quantifying ‘financial dependency’ and ‘services dependency’, they overlap – though Courts seek to avoid double recovery and non-dependency losses. As Jay J summarised in Rupasinghe at [27], [36] and [49], financial dependency tends to be calculated by aggregating a conventional proportion of the spouses’ net income and then deducting a proportion of the surviving spouse’s net income (depending on whether there are children). By contrast, as he said (and I discuss later), a services dependency tends to be calculated by calculating the cost or replacement services and sometimes discounting them. Both were awarded in Knauer. But those methods are not set in stone. In O’Loughlin, a financial dependency of a widow on her husband’s property portfolio was quantified by costing a replacement manager. Indeed, in the passage quoted from Witham at [16], Davies LJ also saw the income dependency in O’Loughlin as akin to one for services:
“At [13 of O’Loughlin], in respect of the loss of a husband’s services, [Latham LJ] stated that: “… His death, whatever other loss may result, will mean that the family will have to replace that expertise and advice at the appropriate market cost. That cost is as much a loss to the family as could be the cost of a gardener…”
However, in Williams, in endorsing a similar award as in O’Loughlin for replacing the entrepreneur of a family business, Smith LJ noted in Wood v Bentall Simplex [1992] 1 PIQR 332 (also cited in Witham), the Court of Appeal held where a widow inherits the assets which have produced the income from which the dependency derived, she cannot have both those assets and damages for lost income. Similarly, in Rupasinghe, Jay J held where a widow had settled her financial dependency claim for loss of her husband’s wages and a services dependency claim for his parenting of their children, she could not also recover her own loss of earnings from having to move back to Sri Lanka for family support with the parenting, since her loss of earnings was not part of her dependency.
Thirdly, in a similar way, both financial and services dependencies are fixed at the point of death and not generally affected by events afterwards, unless those events ‘affect the continuance of the dependency’. Whether a widow moving permanently into a care home ‘affects the continuance’ of her services dependency is the most central issue in this case and I consider it later. But in Williams at [50], Smith LJ stated the general principle before concluding the family’s profitable continuance of a family business after their father entrepreneur’s death did not curtail their income dependency:
“[I]t was irrelevant that [the children] had made a success of the business. That was not because the financial benefit which they had brought to the family was a ‘benefit accruing as a result of the death’ which had to be ignored under s.4. It was because that financial benefit was irrelevant to the assessment of the dependency under s.3. [The Judge] was correct when he said that nothing that a dependant (or for that matter anyone else) could do after the death could either increase or decrease the dependency. The dependency is fixed at the moment of death; it is what the dependants would probably have received as benefit from the deceased, had the deceased not died. What decisions people make afterwards is irrelevant. The only post death events which are relevant are those which affect the continuance of the dependency (such as the death of a dependant before trial) and the rise (or fall) in earnings to reflect the effects of inflation.”
As Mr Stewart pointed out, in Rupasinghe at [26], Jay J observed that Williams was a financial dependency case and the claimant before him argued (see [40]) it did not apply to a services dependency. I can see no reason for a different underlying principle about curtailment of different types of dependency and in any event, at [46]-[59] of Rupasinghe, Jay J rejected the claimant’s submissions. Whilst he did not specifically decide the principle in Williams at [50] does apply to service dependencies, in Witham at [30]-[31] Davies LJ decided that it did. As I will discuss, she held the removal from the widow’s home of foster children she and her deceased husband had planned that he would care for whilst she worked meant that the services dependency ‘cannot be said to be continuing as the premise upon which it was based no longer exists’. That is one example of a dependency ending between death and trial (or in Witham, the appeal). Another given by Smith LJ in Williams at [50] is the subsequent death of the dependant. Indeed, Smith LJ also discussed in Williams at [41]-[42] that childrens’ dependency can end when they become adults, unless they were still financially dependant on the deceased when he died (as was also found in Williams itself). As I discuss later, Mr Stewart likewise submits when a wife previously dependant on her husband’s care goes into a care home after his death, that too ends her services dependency on him.
Fourthly, it is likewise irrelevant to a dependency claim quantified as replacement for the deceased’s services that in fact the dependant has so far not replaced them. That argument was made by the defendant in Knauer at [25], who pointed out the widower of his wife who died of mesothelioma had not in the five years since her death replaced her household services. Bean J rejected this at [26]-[27]:
“This submission, with respect, is misconceived, on basic principles of the law of tort. If a claimant’s brand new Rolls-Royce is written off through the defendant’s negligence the damages must include its replacement value even if the claimant decides that he will change to a cheaper car or in future take public transport. The same principle applies to claims for loss of services under the [FAA]; …Of course in a sense the value of a lost spouse cannot be measured in money terms…but the law has to do the best it can….[I]n predicting the future one can take account of what is known to have happened already. As Aneurin Bevan said in a different context ‘why look into the crystal ball, when you can read the book?’ The classic example …is a [FAA] claim where the surviving spouse has himself died by the time of trial: there will be no award for his future dependency, though there may be for that of the deceased’s children. But this does not alter the basic rule that the claimant is entitled to the value of what he has lost. Indeed… in Hay v Hughes [1975] QB 790 at 809B Lord Edmund-Davies said “the fact that a widower decided to manage himself after the death of his wife would not disentitle him to sue for and recover damages for the pecuniary loss he sustained.”
Similarly, in Witham at [51], Davies LJ noted that Bridge LJ (as he then was) had said in Daly v General Steamship Navigation [1981] 1 WLR 120 (CA) at pg.127:
It is really quite immaterial…whether having received…damages, the plaintiff chooses to alleviate her own housekeeping burden, … by employing the labour [lost] … or whether she chooses to continue to struggle with the housekeeping on her own and to spend the damages which have been awarded to her on other luxuries … .”
Finally, the usual approach to calculating service dependency awards, including for care, is normally to calculate the cost of a replacement for the services on a commercial basis and then decide whether that should be discounted if provided gratuitously (often by 25% to approximate to tax and national insurance not incurred). However, sometimes the Court allows recovery of the carer’s lost income, as Jay J explained in Rupasinghe:
“Ordinarily, the court approaches the quantification of a services dependency claim by considering the cost of replacing the services formerly provided by the Deceased. In some situations, it is appropriate to approach this exercise by looking to the cost of furnishing commercial care…In other situations, the claim is in essence one for gratuitous care, and the authorities make clear that commercial rates fall to be discounted to reflect that….
….[Sometimes], the Courts have followed an alternative approach. In appropriate situations, the court values the services formerly provided by the deceased with reference to the earnings foregone by the claimant in order now to furnish these services herself or himself. This is not a claim for loss of earnings in the strict sense; it is a claim for loss of services but using the surviving partner’s earnings as a proxy or surrogate measure for the value of the services foregone.
The precise constraints on this alternative principle have not been set forth in the authorities, although there is general recognition that the claim must be reasonable….”
Alternatively, in Witham, Davies LJ confirmed where the carer has lost earnings in order to provide gratuitous care, it may be appropriate to use the commercial care rate itself:
“…In Housecroft v Burnett [1986] 1 All ER 332 a claim for personal injury….O’Connor LJ stated at p.343: “…where the relative has given up gainful employment to look after the plaintiff, I would regard it as natural the plaintiff would not wish the relative to be the loser and the court would award sufficient to enable the plaintiff to achieve that result. The ceiling would be the commercial rate.”
[Housecroft] was not an FAA claim, but I regard it as authority for the proposition where earnings have been lost, the commercial rate of care may be appropriate. Whether it is appropriate is a fact-specific assessment for the court.”
In Witham itself, Davies LJ at [52] held that before the curtailment of the dependency by the removal of the foster children after the judge’s decision, he had been entitled not to discount the commercial rate of child-care, since the deceased had decided not to work:
“It is the value of the services lost which requires assessment and compensation, not the value of how the dependant manages following the death. The decision of the judge to value care, not on the basis of the gratuitous replacement by a friend or relative, but on the basis of the estimated cost of employing labour to replace the lost service, was one open to him to make. Further, having so found, there is no identified requirement to make a 25% or other deduction.”
3. The judgment confirms the longstanding principle that dependency is fixed at the point of death – you aren’t looking at what the situation was in the months leading up to it – you are looking at what the situation was at the moment of death; in this case, the care waxed and waned but D was still caring for his wife until the date D died. In this case, the wife had a reasonable expectation that D would have remained her live in carer had he continued to live, and this is notwithstanding the fact that in the last three months of D’s life he occasionally needed help from his sons due to D’s symptoms.
4. Because of the factual finding that D was his wife’s live in carer until the end, it follows that when looking at the claim for services dependency, the loss which his wife truly suffered was not just the loss of her husband, but also of her live in carer (even if by the end D still needed some help).
5. As to whether that care should be at the commercial rate or at the 25% gratuitous care rate, the Judge held that the 25% discount was appropriate for the services dependency claim. D didn’t give up work to care for his wife (he had long retired), and neither had their sons prior to the point of D’s death. It didn’t matter that the sons gave up work after D’s death. That was irrelevant, because dependency is fixed at the date of the death. In this case, D’s care for his wife was just part and parcel of their loving marriage. 25% was therefore an appropriate discount.
6. As to whether the service dependency ended when D’s wife was admitted to a care home in Jan 2026, the Defendant said it did because the premise of the dependency claim no longer existed, and in effect, curtailed the dependency. That submission was rejected for five reasons:
i) The wife’s admission to the care home in Jan 2026 was directly caused by the death of her husband, D. Therefore, it is part of wife’s ‘injury resulting from the death’ [using the wording of s3(1) FAA 1976] that she is now in a care home until she dies, and that doesn’t curtail her dependency. This can be distinguished from other factors that affect dependency post death (like the dependant dying before trial for example or a dependent becoming financially independent); these are standalone factors, they don’t flow from the tortious death. Otherwise a Defendant could just rely on the consequences of their own tort which would be wrong in principle.
ii) The dependency is care for the wife – whether it is in a care home or by way of care at home, the underpinning dependency on D remained, it is just being met in a different way. Also, decisions about how care is to be met post-death is irrelevant insofar as the dependency is concerned. In this case, the need for care and dependency continues. It would be different for example if the wife’s condition after D’s death had improved so that his wife no longer needed the care, but that was not the situation being dealt with by the Court in this case.
iii) If anything, the fact that the wife’s care needs have increased (even though dependency is fixed at date of death), certainly can’t curtail the dependency.
iv) The change to the wife’s care is not something she wanted; she didn’t want to go into a care home, so this was not a voluntary move but this was because D was genuinely irreplaceable and his wife now had to have what she did not want. Consequently, its not that the dependency had ended because wife went into a care home, but rather it was that her dependency could not be met at home in the way she wanted.
v) The care home is a s4 FAA 1976 benefit – even though wife doesn’t want to be in the care home, it is objectively a ‘benefit’ because her care needs are being met. He Court in this case didn’t know whether the wife paid for her own care at the time of judgment, but the Court did know from the wife’s witness evidence that she would probably have to pay for it after the first 28 days. It was held that the first 28 days was plainly a benefit and therefore must be disregarded under the 1976 Act and doesn’t curtail the dependency. This was very much a “fall back” position compared to the other four reasons provided in the judgment.
The approach taken in this case can be contrasted with approaches to services dependency in other recent authorities. For example, in Burgess v (1) Sikorski & (2) Hertsmere Borough Council [2026] EWHC 1245 [KB], the Court approached the issue of services dependency on what the Deceased was actually doing for the family prior to death rather than assessing dependency on the basis of what the dependants needed in order to function properly in the Deceased’s absence. In that case, the claim for past services was rejected because it was held that the Court could only compensate for past services that have actually been rendered. Contrast this with the approach in Chouza v Martins [2021] EWHC 1669 (QB) where it was held that the value of lost services is not dependent upon the Claimant showing that the services had actually been replaced. Indeed, in Roberts v Ford of which this article is concerned, it is highlighted as one of the guiding principles of 1976 Act claims that it is irrelevant to a dependency claim quantified as replacement for the deceased’s services that in fact the dependant has so far not replaced them (paragraph 41).
It is clear from the latest instalment of authority on the issue of services dependency that these are cases very much confined to their facts. Particular care is to be taken by Claimant and Defendant practitioners to carefully consider the intricacies of the factual matrix that applies in their cases and how this can affect the extent of dependency claims.