Auty v National Coal Board: CA 1985

A widow received a widow’s pension under a Coal Board scheme on the death of her husband, which had been caused by the defendants’ negligence.
Held: She did not have to give credit for this pension when the value of her dependency on her husband for the rest of his anticipated lifetime (from his earnings until his retirement, and thereafter from his pension until his death) was being calculated. It was maintained that she was entitled to claim, as an additional head of damage, the loss of the widow’s pension she would normally have expected to receive under the scheme at the end of his life following her husband’s death at a mature age. This was said to result from the operation of Section 4.
Held: The court rejected this submission. The plaintiff first had to establish a loss, and since she was receiving her widow’s pension immediately she could not claim for the loss of the opportunity to receive something she already had.
Oliver LJ: ‘There are thus two stages in the inquiry. First there must be ascertained what ‘injury . . to the dependants’ has resulted from the death. Secondly, there must be assessed the damages which are to be awarded for that injury. No doubt in ascertaining the extent of the injury suffered (for instance, the loss of dependency or of the estate duty advantage with which Davies v Whiteways Cyder Co Ltd [1973] QB 262 was concerned) you do not take into account any countervailing advantage which may have resulted to the dependant from the death in the form of pension or insurance benefit. In other words, it is no doubt right to observe the provisions of section 4(1) at both stages of the inquiry. But it is still necessary to establish that the dependant has in fact suffered an injury (ie lost something) as a result of the death. Here what is claimed as the injury is the loss of the very thing (ie a widow’s pension) that the widow in fact has gained as a result of the fulfilment of the conditions of the scheme earlier rather than later, and whilst section 4 precludes setting the benefit of the pension against damage suffered under some other head, there is nothing in that section which requires one to assume, in ascertaining whether there has been any injury at all, that that which has happened in fact has not happened. The fallacy of the plaintiffs’ reasoning is, in my judgment, that it premises a loss which has not occurred and which cannot be substantiated either in fact or in law.’


Oliver LJ


[1985] 1 WLR 784, [1985] 1 All ER 930


Fatal Accidents Act 1976 4


England and Wales


ExplainedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .

Cited by:

CitedCantwell v Criminal Injuries Compensation Board HL 5-Jul-2001
When calculating the losses suffered by a victim of crime, the allowance to be made for losses to a retirement pension through having to retire early should have set off against them, the benefits received by way of payments for his ill-health, . .
Lists of cited by and citing cases may be incomplete.


Updated: 30 April 2022; Ref: scu.219832