Fatal Accidents Act claims the oddities all too likely to arise

Transcription

1 Fatal Accidents Act claims the oddities all too likely to arise ROGER COOPER STEPHEN FRIDAY PARKLANE PLOWDEN LEEDS NEWCASTLE A quirk of history At common law though claims for injury have a long history, claims for death never were allowed and it was only because That the first statute was passed in

2 Some chilling statistics deaths on the road 420 pedestrians 328 motor cycle users 118 cyclists 280 drink related 148 employment fatal accidents 39 construction 29 agriculture ,438 accidental deaths 435 killed by complications of medical care The nature of the cause of action The deceased must have been injured by the fault of the defendant He must have died in consequence of such injury At the time he died he had a right to recover damages and The beneficiaries have suffered pecuniary loss from the death. 2

3 Classes of dependants Wife/husband, former wife/husband Civil partner, former civil partner Cohabitant In same household as deceased immediately before death; At least 2 years During the whole of that period as husband and wife. Parent or other ascendant Person treated by deceased as parent. Child of the deceased or other descendant Yet more dependants Person, not a child of deceased, who in relation to a marriage of the deceased, was treated as a child of that marriage Ditto re civil partnership Any person who is, or is the issue of a sibling, uncle or aunt of the deceased. Step children included. Half siblings included. Illegitimate treated as legitimate. 3

4 CO-HABITANTS 2 years in same household. Swift v Sec. State for Justice 2 year qualification justified as proportionate means of pursing a legitimate aim Kotke v Saffarini 2 years in same household question of fact Pounder v London Underground Brief periods of separation do not preclude qualification. Marriage - does it matter? Yes as to multiplier as to bereavement damages complex family relationships potential for conflict with other dependants 4

5 And so... Surprising there are not more cases of conflict of interest See Pounder v London Underground Remembering only one claim can be brought- subject to ruling in Cachia v Faluyi BEREAVEMENT AWARDS 12,980 for deaths from Not for co-habitants; only for: Wife, husband or civil partner of deceased Where deceased was a minor who had never married, his parents if legitimate or his mother if illegitimate. 5

6 The simplest of claims A happily married 40 yr. old father of two young children -10 and 8 Earning 40,000p.a. net at date of death Company car / fringe benefits Slightly younger wife at home Children state educated Dies instantly And so Fix multipliers as at death (Cookson) Multiplicands (income) Conventional 75% with children at home (Harris) Conventional 66.6% when children leave home Remember value of fringe benefits Remember post retirement dependency Father s/husband s services? Add funeral expenses Add bereavement damages Apportion 6

7 But be prepared to be flexible As to use of percentages for the very high or very low earner See Owen v Martin As to duration of dependency Life expectancy Marriage stability Children at home The figures Trial 3 years post death Income would by then have risen to 44,000 net Retirement at 65 with employment pension of 20,000 + state pension of 10,000 Car and benefits worth 6,000 p.a. 7

8 Bingo Bereavement Funeral expenses Life time multiplier (his), say 26.5 Multiplier from death to 65, say ,980 (+ interest) 5,000 (+ interest) Multiplier to youngest child age 21, say 11 3 years to death 46,000 x 75% 103,500 (+ interest) 8 years of 75% 0f 50, , years at 66.6% 0f 50, , years at 66.6% of 30, ,000 SAY 805,000 (Really?) (NB without services claims) Apportionment- pragmatic There is a tradition of leaving bulk to widow, but What if she dies/remarries are children catered for? Could an arithmetical calculation be done? See Goodburn v Thomas And in this case...???? 8

9 Lets make it a little more complicated Might affect the multiplicand and indeed the multiplier Might affect the multiplier see D v Donald Factors to reduce the dependency Botched DIY showed marriage was doomed Husband's adultery cuts widow's claim S. D. 30, said she had "worshipped the ground walked on" by her husband, Jason, and was shocked to discover his double life. E. S., who survived when the bike crashed in Hull in 1996, also had no idea there was a wife and considered herself his fiancée, the court was told 9

10 A long and lingering death and a memorable funeral An award for PSLA may be substantial See Murray v Shuter In St George v Turner 50,000 award for funeral Back to Mr & Mrs Happy Family She was working part time But paying for child care She decides to stay at home and give the children all her attention She is assisted by receipt of A large occupational widow s pension A large life insurance payout Payments made under a mortgage protection policy 10

11 Section 4 - a very wide provision Pre 1976 all collateral benefits potentially relevant In assessing damages in respect of a person s death benefits which have accrued or will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded Arnup v White 2008 the process now only involves one stage section 3 quantification Section 4 And none of Mrs Happy s benefits are deductable All flow from the death Are any such collateral benefits ever to be set off? See Arnup v White Double recovery inherent in the statute: McIntyre v Harland & Woolf Thus only the unmeritorious claim of Mrs Popow in Auty v NCB remains 11

12 What of her income (or lack of)? Was 15,000 The conventional approach Coward v Comex Houlder Diving 46, ,000 x 75% less 15,000 = 30,750 p.a. (Why?) 50, ,000 x 66.6% less 15,000 = 28,333 (p.a) What if she doesn t return to work? What if she takes the chance to get a better paid job Welsh Ambulance Services NHS Trust v Williams What of the 7,000 child care? And after an appropriate period of grief Will it affect my claim? 12

13 Is the law sexist? Always thought widower s prospects of remarriage relevant? But see Topp v London Country Bus Potential breach of Article 14? A change of victim The wife dies She wasn t in paid employment But she was the perfect wife and mother Don t forget Regan v Williamson 13

14 Father can t cope See Manning v Kings College Grandparents the cheap alternative 14

15 And after a suitable period of grief A new friend moves in Remarriage beckons She s almost as good a cook And financially independent Topp v London Country Bus Stanley v Saddique L v Barry May Haulage They were both in the car! He was the passenger not wearing a seat belt Statute provides She was the driver who went through red lights See Dodds v Dodds 15

16 A tragedy - orphaned so young Consider: Hay v Hughes Kassam v Kampala Aerated Water Watson v Willmott Back to the Happy Family The deceased was not only a marriage partner but a business partner /employee After the death The business fails Wolfe v Del Innocenti The business thrives Welsh Ambulance v Williams 16

17 A need for careful analysis Malyon v Plummer Burgess v Florence Nightingale Hospital Was the dependency a family one or purely business? Or was this a notional salary that would not continue? The richer the couple the more complicated Steer clear of Wood v Bentall Simplex Davies v Whiteway Ciders Cape Distribution v O Loughlin 17

18 And also The carer Can be complicated whichever one dies disabled / able bodied Riches ahead? Promotion on the horizon? A hoped for inheritance? A personal injury award awaited? Or looming unemployment / a life of crime? Singh v Atkin Burns v Edman Hunter v Butler And thereafter struggling on a state pension? 18

19 The Human Rights Act Worth thinking about alternative claims if a public body is involved and if there are problems as to statutory definitions dependants /bereavement But see Swift v Secretary of State for Justice 2013 Any Questions 19