Fatal Accidents. At common law there is no right of action for a person who has suffered a loss arising out of the death of a relative.

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1 Fatal Accidents At common law there is no right of action for a person who has suffered a loss arising out of the death of a relative. Statute has intervened to change this: The Law Reform (Miscellaneous Provisions) Act 1934: provides for the estate of the deceased to bring an action. The Fatal Accidents Act 1976: provides for dependants of the deceased to bring an action. The Law Reform (Miscellaneous Provisions) Act 1934: The estate may bring a claim for: General damages for pain, suffering and loss of amenity suffered by the deceased between injury and death. This can include damages for any suffering caused by awareness of reduced life expectancy (s.1(1)(b) Administration of Justice Act 1982). General damages for loss of amenity can be awarded where a claimant is unconscious between injury and death, although no pain is suffered (Andrews v Freeborough [1967] 1 QB 1). Special damages incurred between injury and death e.g. loss of earnings between injury and death, medical expenses and cost of care between injury and death. Funeral expenses (if paid for by the estate). Fatal Accidents Act 1976: Dependants can bring a claim for:

2 Funeral expenses if paid for by the dependants Statutory bereavement damages Dependency: loss of financial support and services from the deceased. Where a tortfeasor would have been liable to the injured person, had they not died, dependants can stand in the shoes of the deceased and bring a claim. All the usual principles of establishing liability for personal injury apply (Gray v Barr [1971] 2 QB 554). If the claim is commenced within 6 months of the death of the deceased, the executor or administrator must bring the action. If more than 6 months has passed since the death, or there is no executor or administrator, the dependants may bring the claim. Only one claim can be brought in respect of the same death under the Act (s.2(3)), so all dependants must bring their case at once. A dependant can be joined to the action at any stage up to judgment. CPR 16 PD 5 sets out what must be included in the particulars of claim in a fatal accident claim. A fatal accident: The incident does not need to be immediately fatal death may occur months or years later. However, it must be shown on a balance of probabilities that the death resulted from the Defendant's negligence rather than any intervening event or pre-existing condition that would have caused death in any event. The injury need not be accidental. It may be a deliberate assault or even murder. A claim may arise where a tortious action causes psychological injuries to a person causing them to commit suicide (Pigney v Pointers Transport Services Ltd [1957] 2 All ER 807 and Corr v IBC Vehicles Ltd [2007] QB 46).

3 Bereavement damages: S.1A Bereavement (1) An action under this Act may consist of or include a claim for damages for bereavement. (2) A claim for damages for bereavement shall only be for the benefit (a) of the wife or husband or civil partner of the deceased; and (b) where the deceased was a minor, who was never married or a civil partner (i) of his parents, if he was legitimate; and (ii) of his mother, if he was illegitimate. (3) Subject to subsection (5) below, the sum to be awarded as damages under this section shall be 12,980. (4) Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant). (5) The Lord Chancellor may by order made by statutory instrument, subject to annulment in pursuance of a resolution of either House of Parliament, amend this section by varying the sum for the time being specified in subsection (3) above. For deaths before 1 April 2013, the amount of bereavement damages is set at 11,800, and for deaths before 1 January 2008 the amount is 10,000. A child cannot claim bereavement damages in respect of the death of a parent. A parent cannot claim bereavement damages where their child is over the age of 18 at the date of death. Where the child is under 18 when injured but does not die until after their 18 th birthday, no bereavement damages can be claimed by a parent (Dolema v Deakin (1990) Times, 30 Jan). Dependency claim:

4 To bring a dependency claim, a claimant must show that: (i) he or she falls within one of the categories of dependant set out in the act, (ii) he or she was, or was likely to be, dependent on the deceased as a matter of fact. Categories of dependants (s.1(3)): the wife or husband or former wife or husband of the deceased; the civil partner or former civil partner of the deceased; any person who (i) was living with the deceased in the same household immediately before the date of the death; and (ii) had been living with the deceased in the same household for at least two years before that date; and (iii) was living during the whole of that period as the husband or wife or civil partner of the deceased; any parent or other ascendant of the deceased; any person who was treated by the deceased as his parent; any child or other descendant of the deceased; any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage; any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership; any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

5 The reference to the former wife or husband or civil partner of the deceased above includes a reference to a person whose marriage to, or civil partnership with, the deceased has been annulled or declared void as well as a person whose marriage to or civil partnership with the deceased has been dissolved. Any relationship by marriage or civil partnership shall be treated as a relationship by blood, any relationship of the half blood as a relationship of the whole blood, and the stepchild of any person as his child, and an illegitimate person shall be treated as the legitimate child of his mother and reputed father. Adoptive children and parents are treated as if they are natural children and parents, by reason of s.39 Adoption Act The loss that can be claimed for A claim can be made where there was a reasonable expectation of pecuniary benefit (Davies v Taylor [1974] AC 207): The appropriate test in a dependency claim, relating as it must to future events, is not to determine whether a dependency is established on a balance of probabilities, but to consider whether the chance of such being established is substantial, that is beyond a mere possibility or speculation.' A pecuniary benefit may include money, property and services. For example: loss of money brought into a household loss of gratuitous services e.g. DIY loss of fringe benefits e.g. company car loss of anticipated gifts loss of pension losses incurred because of the death such as tax paid on gifts made within 7 years of the death (Davies v Whiteways Cyder Co Ltd [1975] QB 262)

6 The loss must relate to the dependency relationship: Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349: A husband could not claim for his loss of income from dancing where his wife had been his dancing partner, as her being his dancing partner did not arise out of the relationship of husband and wife. He could however claim for the loss of her proportion of the money brought into the household. Dependency calculation: 3 possible methods: Assess the loss to the dependants as a whole, then apportion between the dependants, in such shares as directed to reflect their respective dependence. Assess the entitlement of each dependant, with a multiplier for each dependant to reflect the likely period of dependence (Yelland v Powell Duffryn Associated Colleries Ltd (No 2) [1941] 1 KB 519). a lump sum, where there are too many imponderables to use the multiplier/multiplicand approach (Davis v Bonner, Official transcripts 6 April 1995). The multiplicand Where a multiplier/ multiplicand approach is used, each head of loss (net loss of earnings, or loss of services) is calculated in the same way as any personal injury claim. In relation to loss of earnings, the amount that the deceased would have spent on himself must then be deducted. The conventional percentages are: 33% if the sole dependant is a spouse 25% where there are dependant children as well Harris v Empress Motors [1984] 1 WLR 212. Where both spouses were earning, the joint income is combined, then reduced by 33.3%, or 25% where there are dependant children, and the surviving

7 spouse's income is deducted (Coward v Comex Houlder Diving Ltd [1984] 1 WLR 212). The conventional percentages can be departed from where there is evidence that these do not reflect the actual amount the deceased spent on himself. The Multiplier The multiplier is the number of years that the dependency may be expected to have lasted had the deceased continued to live. The age of deceased, at what age he or she would have been expected to retire, the expected length of dependency of children and the possibility of separation or divorce can all be taken into account. The court cannot take into account: The likelihood of remarriage of a widow (s.3(3)) Benefits which accrue from the estate or otherwise as a result of death (s.4) The multiplier is assessed as at the date of death: Cookson v Knowles [1979] AC 556, House of Lords decided before use of the Ogden tables or other actuarial tables was common. However the courts have held that this remains binding despite criticism (Fletcher v A Train & Sons Ltd [2008] EWCA Civ 413). The main criticism is that the multiplier includes a discount for accelerated receipt which therefore under-compensates the claimant who receives the amount some time after death. The Ogden tables now provide an alternative approach, using a multiplier at date of death but then splitting this between pre- and post-trial periods such that no discount is made for accelerated receipt on the pre-trial period. See para.88 of Ogden tables 7 th edition. The court can also adjust the multiplier, as calculated at the date of death, to take account of known facts about the dependant as at the date of trial. In

8 Corbett v Barking, Havering and Brentwood Health Authority [1991] 2 QB 408 a mother died in childbirth due to the Defendant's negligence. The child survived and a claim brought by the child did not reach trial until the child was 11 and a half. The multiplier for dependence until the age of 18 as calculated at the date of the mother's death was 12, essentially only allowing a further 6 months after trial. The court adjusted the multiplier to 15 to take account of the facts of the child's survival and health since the mother's death. Loss of a mother As well as the loss of the mother's services in providing childcare and domestic services, the 'intangible' value of a mother over and above the value provided by an alternative carer can be claimed for. This is still regarded as an economic rather than emotional loss to the child. The sum is likely to be under 5,000. Hay v Hughes [1975] QB 790 Limitation Actions by the estate under the Law Reform (Miscellaneous Provisions) Act 1934: 3 years from the date of the deceased's death. Actions by dependants under the Fatal Accidents Act: deceased's claim arising out of the accident must not be statute-barred before his death: s.12 Limitation Act prevents dependant bringing a claim where deceased person could not at the time of his death maintained a personal injury action. No account is taken of the deceased's potential ability to have used the s.33 discretion at this stage (s.12(1)). So long as the deceased's claim was not statute-barred at the time of death, the dependants have 3 years after the date of death to commence an action. If it is the dependant's timing or knowledge that is in issue (rather than the deceased's), the dependant can apply under s.33. Settlement within the deceased's lifetime

9 If the injured person intimates and settles an injury claim, or pursues it to judgment, during their lifetime, but then dies, there can be no dependency claim. Caution must therefore be applied if settling the claim of an injured person who may die due to a tortious act. JANE CLIFTON LAMB CHAMBERS JULY 2013

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