Burgess v Sikorski: High Court awards deputyship fees as damages under the Fatal Accidents Act in services dependency claim

A Deputy High Court Judge has handed down a significant ruling on the recoverability of professional deputyship fees as damages under the Fatal Accidents Act 1976, awarding a total of £1,501,588 (before a 30% contributory negligence deduction) to the dependants of Michelle Griffiths, a carer who died after being struck by a council vehicle in March 2021.

In Burgess v Sikorski & Hertsmere Borough Council [2026] EWHC 1245 (KB), Deputy High Court Judge Aidan Eardley KC found that the First Defendant, an employee of Hertsmere Borough Council, had inadvertently reversed his vehicle into Mrs Griffiths on a residential cul-de-sac, causing fatal injuries. Liability was admitted subject to an agreed 30% contributory negligence discount. The contested issues at trial concerned the quantification and apportionment of services dependency, and the novel legal question of whether professional deputyship fees are recoverable under the Act.

Services dependency: hours and rates

The central factual dispute concerned the nature and extent of the services Mrs Griffiths had provided to her husband Ian and their two adult sons, Aaron and Matthew, both of whom have moderate learning disabilities, with Aaron additionally suffering from epilepsy.

The judge preferred the evidence of the Defendants' expert occupational therapist, Ms Phillips, over that of the Claimant's expert, Mrs Aitken, principally because the latter's "needs-first" approach did not reflect the court's task of identifying the services the deceased would actually have provided, rather than those the dependants ideally required. Mrs Aitken was also found to have relied on factual assumptions that did not survive cross-examination.

The judge awarded 26 hours per week for past services (18 hours for general household services and 8 hours for additional care specific to Aaron and Matthew), applying the NJC Day Aggregate Rate subject to the conventional 25% gratuitous care discount. The total past services dependency award was £70,668.

For future services, the judge rejected the Defendants' submission that commercial rates should only apply once Ian and Graham Burgess could no longer provide gratuitous assistance, holding that the commercial cost of replacement is the normal measure and that "it is a matter for Ian and Graham whether they move to professional support immediately or continue with the current arrangements." Future services dependency was assessed at £969,708, allocated three ways for general domestic services and equally between Aaron and Matthew for disability-specific support.

Deputyship fees: a novel point under the FAA

The most legally significant aspect of the judgement concerned the recoverability of professional deputyship costs. As protected beneficiaries under CPR Part 21, Aaron and Matthew each received awards exceeding £100,000, triggering an obligation to apply to the Court of Protection for the appointment of a deputy. The parties' experts agreed that professional rather than lay deputies would be required.

Rejecting Ms Wolstenholme's submission that such costs fell outside the scope of section 3 of the Act, Eardley KC held that deputyship fees are a "necessary corollary" to full compensation for loss of services, analogous to the agreed case management costs for the support worker arrangement. The court distinguished but declined to follow the brief reasoning in Chouza v Martins [2021] EWHC 1669 (QB), noting that the judge there did not appear to have been addressed on the "necessary corollary" argument.

Deputyship costs were awarded at £227,566 for Aaron and £186,525 for Matthew, calculated by reference to a pro-rata approach that reflected the court's award falling between the two parties' scenarios. The judge declined to impose a proportionality ceiling, rejecting the Defendants' submission that awards should not exceed 30% of other damages.

Permission to appeal on the deputyship point was granted. The judge noted that both limbs of CPR 52.6(1) were satisfied given the absence of authority and the potential importance of the issue.