THE LAW RELATING TO FATAL ACCIDENTS: AN INTRODUCTION

APIL Fatal Cover FINAL

The law in relation to fatal accidents

This blog aims to provide a resource for all those involved in fatal accident litigation, whether it be as a dependant or a litigator. This section provides a brief overview of the law in relation to fatal accidents.

See the links section on the side of this blog for guides to more detailed texts; the relevant statutes and numerous organisations that provide help to bereaved people.

Liability in fatal accident claims

When a person is killed a claim can be brought on behalf of his estate or on behalf of their dependants. The person or persons who bring the action are called the “claimant” or “claimants” (if more than one person brings the action).

Liability in fatal accident cases depends on establishing that the deceased would have had an action in negligence in breach of duty had he not died..

The claimants in the personal injury action “stand in the shoes” of the deceased, see Gray –v- Barr [1971] 2 QB 554.  It is necessary to prove that the defendant’s breach caused the death or made a material contribution towards it.  If the deceased was contributory negligence then the claim by the estate or dependants can be reduced.

Claims on behalf of the estate

The estate of the deceased person can recover reasonable funeral expenses, any special damages the claimant could have claimed, including loss of earnings (if any), from the date of the accident to the date of death, and general damages for pain, suffering and loss of amenity (unless death was instantaneous).  There can only be one action so if the executors or administrators bring an action on behalf of the estate they must bring an action on behalf of the dependants. The claim is brought under the Law Reform (Miscellaneous Provisions) Act 1934.

A claim brought by the dependants

If there are no executors or administrators  or they do not bring a claim within six months of the death a claim can be brought by the dependants, s 2(2) of the Fatal Accidents Act 1976.

The definition of dependant

There is a statutory definition of dependants set out in section 1 of the Fatal Accidents Act 1976.    A dependant must fall within this definition to be eligible to bring an action. The dependant must be:

  • The wife or husband or former wife or husband of the deceased.
  • The civil partner or former civil partner of the deceased.
  • An person living in the same household as the deceased immediately before the death and who had been living with the deceased in the same household for at least two years before the death and was living as the husband or wife or civil partner of the deceased.
  • Any parent or other ascendant of the deceased.
  • Any person treated by the deceased as his parent.
  • Any child or other descendant of the deceased.
  • Any person treated as a child of the deceased as a child of the family in any marriage or civil partnership that the deceased was in.
  • Any brother,sister, uncle or aunt, or their children.

Dependency claims 

The fact that a person comes within the statutory dependant does not automatically entitle them to bring an action.  A dependant must show that they have suffered a financial loss or had a reasonable expectation of benefit.  The claimant does not have to prove definitively that there is a financial loss, a court can assess the claim on a probability basis, Davies –v- Taylor [1974] AC 207.

(1) The dependants must show that the have suffered a loss. See Yelland v Powell Duffryn Associated Collieries Ltd (No 2) [1941] 1 KB 519.

(2) The dependants can show that they were receiving benefits from the deceased. This does not have to be a direct financial benefit, it can be enough if the deceased person was providing services, e.g. housework, car servicing or other services which have a financial value.

(3) A dependant can claim if they can show a reasonable expectation of future benefit, see e.g. Welsh Ambulance Service Trust v Williams [2008] EWCA Civ 71 at para 31.

(4) The court has to value the loss suffered by the dependants.  It will look at the deceased’s earnings, the amount that he spent on the dependants and what amount was likely to have been spent in the future.  The services provided by a mother, carer or partner have a value and can be quantified and damages awarded on that basis, see Bordin –v- St mary’s NHS Tryst [2000] Lloyd’s Rep Med 287.

(5) The court will also take into account the amount that the deceased would have spent on themselves.  There can be a fairly robust approach that where a couple are living together one third of the joint income would be spent on the deceased, if the couple have dependent children then 25% would be spent on the deceased. See Harris v Empress Motors [1983] 3 All ER 561.

(6)  In a fatal accident case the multiplier runs from the date of death, Cookson v Knowles [1979] AC 556. There have been suggestions in the Actuarial Tables and by the Law Commission that this should be changed, however the courts have consistently confirmed that  Cookson remains good law, see White v ESAB (UK) Ltd [2002] PIQR P26 and MS v ATH [2002] EWCA Civ 792. (It is important to note that this issue is being reconsidered by the Supreme Court in early 2016).

(7) The court is not just concerned with income. Matters such as fringe benefits, services provided and gifts can be part of a proper award.

(8) When the deceased made his living off capital it was appropriate to award damages based on the costs of hiring a businessman of appropriate stature to run the business, Cape Distribution v O’Loughlin [2001] PIQR Q8.  Similarly the fact that a family took over the deceased’s business and continued to run it successfully did not prevent the court awarding damages on a similar basis, Welsh Ambulance Services v Williams [2008] EWCA Civ 71.

 Matters which must be disregarded: Section 4 of the Fatal Accidents Act 1976

Any benefit accruing to the estate or dependants as a result of the deceased’s death is disregarded when the court is assessing damages.   So any insurance policies, pension payments or similar awards are disregarded.  Similarly where a child’s mother died and his step-mother proved to be a much better carer and provider this was a matter that was to be disregarded under section 4, Stanley v Siddique [1991] 2 WLR 459.

Bereavement damages

A limited class of people are entitled to bereavement damages of £11,800 upon the death, s 1A(2) of the Fatal Accidents Act 1976.  This has increased to £12,980 when the death occurred after the 1st April 2013. These are the wife, husband or civil partner of the deceased or the parents of a child who died under the age of 18.  If the child’s parents are unmarried the father cannot claim bereavement damages.   A former wife, husband or civil partner and cohabitees cannot recover bereavement damage.  If the person entitled to the bereavement payment dies before the trial or settlement the payment does not survive for the benefit of their estate, s. 1A of the Law Reform (Miscellaneous Provisions) Act 1934.

 Funeral expenses

Reasonable funeral expenses can be recovered, by the estate or the dependants if they have paid the expenses.  These can include the costs of a tombstone but not a memorial to the deceased, Gammell v Wilson [1982] AC 27.

Apportionment

If any of the dependants are children or protected parties then the court will have to apportion any damages awarded or approve and apportion any sums that relate to their dependant.  Generally apportionment is done on fairly robust basis and takes into account that it usually a surviving parent who is caring for the remaining children,  R –v- Criminal Injuries Compensation Board, ex parte Barrett, [1994] PIQR Q44.

 Interest

Damages from the date of death to the date of the trial carry interest. Bereavement damages carry interest at the full rate and there is a strong argument that all losses incurred immediately after the death should carry interest at the full rate. Damages for future loss from the date of the trial carry no interest, A Train and Sons Ltd –v- Maxina Emma Fletcher [2008] EWCA Civ 413.

Important points

1.             A Claimant in a fatal accidents claim “stands in the shoes of the deceased” so far as                       liability is concerned.

2.             A claim can be brought on behalf of the estate and on behalf of the dependants.

3.             To be a dependant a claimant must come within the statutory definition of dependant                     and have a “reasonable expectation of benefit” if the deceased person had lived.

4.             Any benefits arising to the estate or dependants as a result of the death are                                   disregarded in the calculation of fatal accident damages.

5.             Bereavement damages are payable only to a limited class of  relatives.

6.             Funeral expenses can be recovered.

7.             In cases involving child dependants or protected parties the court will need to apportion                  the damages.

8.             Interest in fatal accident claims are paid only on past losses.

FURTHER READING

This is a very brief outline taken from my book “Personal Injury Litigation”

(4th ed) printed by Wildy

(http://www.wildy.com/isbn/9780854900862/personal-injury-litigation-4th )

More detailed guidance can be found in the third edition of my “Guide to

Fatal Accidents” an APIL Guide published by Jordans

http://www.jordanpublishing.co.uk/publications/litigation/apil-guide-to-fatal-accidents-0

I also write the latest editions of  “Munkman on Damages for Personal Injury and Death”  which has a detailed explanation on the law relating to fatal accident

damages.

http://www.lexisnexis.co.uk/store/uk/Munkman-Damages-for-Personal-Injuries-and-Death/product

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