Loss of Services after Burgess v Sikorski: The Occupational Therapy Expert’s Task

Burgess v Sikorski offers a useful examination of services dependency following a fatal accident and, in particular, of the distinction between assessing what someone needs and reconstructing the practical contribution that has actually been lost.

Some of the most important support within a family is also the least formally recorded.

Someone prepares meals, keeps track of appointments, manages paperwork, prompts medication, notices when another person is struggling, organises the day and makes sure things happen when they need to. Much of this may never have been called “care”. There may be no care plan, rota or invoice. It is simply part of how a family functions.

When the person providing that support dies, however, the apparently ordinary becomes something the court may need to identify, analyse and value.

That was the problem at the centre of Burgess v Sikorski & Hertsmere Borough Council [2026] EWHC 1245 (KB), a High Court decision concerning services dependency under the Fatal Accidents Act 1976. The judgment has attracted attention for its treatment of professional deputyship costs. For Occupational Therapy experts, however, there is another particularly interesting aspect: how expert evidence should approach the reconstruction of services that were embedded in everyday family life.

A contribution that was much broader than housework

Michelle Griffiths was 53 when she was fatally injured in March 2021. She worked professionally as a carer and lived with her husband, Ian, and their two adult sons, Aaron and Matthew. Both sons had learning disabilities and Aaron also had epilepsy.

At home, Michelle made a substantial contribution to the functioning of the household. That included familiar domestic activities such as cooking, laundry, shopping and housework, but also financial administration, managing benefits and budgets, liaison with services, support around appointments and additional supervision associated with her sons’ needs.

Liability was admitted subject to an agreed deduction for contributory negligence. By trial, most heads of damage had been resolved. The remaining dispute centred principally on services dependency: what services Michelle would have continued to provide, how they should reasonably be replaced and what that replacement should cost.

That is where Occupational Therapy evidence became important. Two Occupational Therapy experts, and a deceptively difficult question. Both parties had permission to rely on Occupational Therapy expert evidence.

The claimant instructed Linda Aitken, an experienced Occupational Therapist who had acted as an expert witness since 2007, including in loss-of-services claims. The defendants instructed Jean Phillips, also an experienced Occupational Therapist and expert witness, with more than 30 years’ professional experience across statutory, charitable and private-sector settings.

The judge was clear that both experts were conscientiously trying to assist the court. He relied upon aspects of each expert’s evidence and, on some questions, adopted a position between them. On the principal issue dividing them, the nature and extent of the additional support Michelle had provided to Aaron and Matthew and how it should be replicated, he preferred Ms Phillips’ evidence, subject to qualifications. The judgment noted, among other matters, her greater professional experience of working with adults. Subsequent reporting on the decision also highlights a more fundamental methodological distinction: an assessment directed toward what the dependants now needed risked moving beyond the court’s task of determining what Michelle herself would actually have provided.

That distinction deserves attention well beyond this particular case.

A loss-of-services assessment is not simply a needs assessment

Occupational Therapists are trained to identify need. In ordinary clinical practice, that is entirely appropriate. Assessment asks what is preventing participation, where function is compromised, what support may improve independence and what interventions might produce a better outcome.

A loss-of-services claim asks a different question.

The starting point is not:

What provision would ideally benefit this person now?

It is closer to:

What did the deceased actually provide, what would they probably have continued to provide, and what would it reasonably cost to replace that contribution?

The difference can be subtle in practice.

A dependant may have needs that were never previously met by the deceased. They may now benefit from a more comprehensive support package than existed before the death. Those matters may be clinically valid. They do not necessarily define the pecuniary benefit that has been lost for the purposes of a services dependency claim.

The expert therefore has to hold two ideas apart: need and loss. That does not make clinical expertise less relevant. It makes the application of that expertise more disciplined.

Reconstructing function rather than compiling a list of tasks

This is where Occupational Therapy has particular value.

The contribution of one family member to another is rarely captured accurately by a simple checklist.

• “Cooking” may involve more than producing a meal. It may include planning, shopping, organising the kitchen, accommodating preferences, prompting somebody to eat or ensuring dietary needs are met.
• “Attending appointments” might involve remembering the appointment, arranging transport, preparing the person beforehand, accompanying them, helping them communicate and making sure recommendations are followed afterwards.
• “Supervision” can be still more difficult to quantify because it often exists alongside other activity rather than as a discrete block of time.

The court ultimately assessed Michelle’s past services at 26 hours per week: 18 hours attributed to domestic and household services generally and a further eight hours representing additional support provided to Aaron and Matthew because of their particular needs. The judge expressly recognised that converting family activity into hours was inevitably imprecise and that activities could overlap.

That observation reflects a familiar difficulty in functional assessment.

Time is measurable. Human support is not always delivered in neat units of time.

An experienced OT may therefore need to reconstruct not merely what happened, but the role that activity played within the household.

The support behind apparent independence

One of the more interesting aspects of the judgment is its recognition that Michelle’s contribution was not solely physical. When considering the effect of ageing upon her likely future contribution, the judge observed that much of what she provided consisted of planning, motivation and supervision and therefore did not necessarily depend upon physical strength.

That is an important point.

Independence is sometimes described as though it were a binary state: either someone performs an activity independently or they require assistance. Real life is rarely that simple.

A person may physically dress themselves but need prompting to start. They may travel independently once somebody has organised the journey. They may attend an appointment alone but rely upon another person to remember it, prepare for it or deal with what happens afterwards.

The visible activity can therefore look independent while resting upon substantial invisible support.

For an OT expert reconstructing loss of services, those layers matter. Otherwise, there is a risk that the evidence records the activity but misses the infrastructure that made the activity possible.

That does not mean every form of familial support should be converted into compensable hours. It means the factual enquiry needs enough depth to distinguish ordinary family interaction from a genuine service or dependency that has been lost.

Evidence first, opinion second

Burgess also illustrates why loss-of-services work cannot be approached solely through interview. The court had evidence extending beyond family recollection, including benefit records, a PIP assessment, banking information and other documentation capable of shedding light on what Michelle had actually been doing before her death.

This matters because retrospective reconstruction is inherently vulnerable to distortion. Families are being asked to describe ordinary routines after those routines have been profoundly disrupted. Activities that once happened without much thought must suddenly be separated, remembered and assigned time. Documents can provide valuable anchors. They may establish who dealt with benefits, how frequently appointments occurred, whether somebody worked, travelled or managed money independently, or whether a claimed pattern of support is consistent with contemporaneous records. For the expert, this creates an important discipline: assumptions formed at assessment should remain capable of changing when better evidence emerges. The strength of an expert opinion is not demonstrated by defending the original report at all costs. It is demonstrated by being able to explain why the evidence supports the opinion that remains.

Replacement provision is a second question

Once the lost contribution has been identified, another problem follows: how should it realistically be replaced? The court found that some of Michelle’s services could be replaced relatively conventionally through domestic assistance. Her additional role for Aaron and Matthew was different.

The judge found that she had provided what he described as relatively light-touch supervision and support together with particular assistance in situations such as medical appointments and dealings with the DWP. Both Occupational Therapy experts agreed that, when commercial replacement became appropriate, support workers represented the appropriate mechanism for replacing this aspect of Michelle’s contribution.

That finding illustrates another aspect of the OT expert’s task. Replacement is not necessarily like-for-like. One family member may informally combine several functions: domestic support, organisation, prompting, advocacy, supervision and practical problem-solving. No single commercial service necessarily reproduces that role exactly.

Expert analysis therefore has to move from:

What was lost?

to:

What arrangement reasonably replicates it?

Those are connected questions, but they are not the same question.

When replacement itself needs coordination

The judgment then takes the analysis a stage further. Both parties accepted initial case-management costs associated with establishing the support-worker arrangements. The court also made provision for ongoing case-management input.

The point is interesting because the Case Manager was not personally replacing Michelle’s lost services. The support worker was the replacement provision. The Case Manager’s role was to help ensure that the replacement arrangement could be established and function appropriately. The judge later drew directly on this distinction when considering the separate issue of professional deputyship costs: case-management expenditure could be a necessary ancillary cost of making the substantive replacement provision effective.

For those working in complex care and rehabilitation, the principle is recognisable.

• A support package is not necessarily effective merely because somebody has calculated the required hours.
• Workers may need to be recruited. Roles defined. Provision monitored. Difficulties addressed. Needs change. Family circumstances evolve.
• The cost of replacing a lost service can therefore involve not only the intervention itself, but the infrastructure necessary to make that intervention work.

The deputyship issue – important, but a different question

The most novel legal aspect of Burgess concerned professional deputyship.

Aaron and Matthew lacked capacity to manage their property and financial affairs. The court concluded that professional deputyship fees could, on the facts of the case, form part of the compensation necessary to allow them to make effective use of damages awarded to replace Michelle’s services. The judge regarded those costs as a “necessary corollary” of full compensation and drew an analogy with the case-management costs associated with making the support-worker arrangements effective. Permission to appeal was granted on this point, reflecting both the absence of direct authority and its wider significance.

It is an important development. For the clinical expert, though, the more immediate lesson lies earlier in the judgment: the quality of the eventual valuation depends upon accurately identifying what has actually been lost.

What Burgess says about the OT expert’s task

Loss-of-services evidence sits in an interesting space for Occupational Therapy. It draws heavily upon familiar OT skills: analysing activity, understanding function in context, identifying environmental and cognitive influences, recognising informal support and considering how tasks can realistically be replicated, but the forensic task imposes a different boundary.

The expert is not there simply to design the best package of care. Nor are they there to attach an hourly rate to every helpful thing one family member ever did for another. Their task is to reconstruct a factual world that no longer exists. What was the household actually like? Who did what? What additional support arose because of disability or vulnerability? Which activities would probably have continued? What evidence supports those conclusions? And, once the lost contribution has been established, what would reasonable replacement look like?

That requires clinical judgement, but also restraint. It may require the expert to acknowledge that a person has unmet needs which are nevertheless outside the particular loss being quantified. Equally, it may require recognising forms of prompting, organisation and supervision that are easy to overlook because they never looked like formal care at all.

The value of what was making life work

The numerical conclusions in Burgess were ultimately expressed through hours, rates and multipliers. Those numbers came at the end of the exercise. The harder task was to understand what Michelle Griffiths’ presence had actually contributed to the lives of the people around her. That is perhaps why the judgment is particularly relevant to Occupational Therapy expert evidence.

OT practice is concerned not simply with isolated actions, but with what enables people to function in the environments in which they actually live. In a loss-of-services claim, that perspective can reveal something that a list of domestic tasks may miss: the difference between an activity taking place and the network of organisation, prompting, supervision and support that allowed it to take place reliably.

The forensic discipline is then to go one step further — and ask whether that contribution is the one the law requires the expert to value.

For Harrison Associates, Burgess v Sikorski is therefore interesting not because it provides a new formula for loss-of-services reports. It does almost the opposite. It reminds us that good Occupational Therapy expert evidence begins with careful reconstruction of the individual and the household, remains responsive to the evidence, and keeps a clear distinction between what may now be needed and what has actually been lost. Only then does the calculation begin.

Case: Graham Burgess v Dominik Sikorski & Hertsmere Borough Council [2026] EWHC 1245 (KB), Deputy High Court Judge Aidan Eardley KC, 22 May 2026.

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