The interesting thing about lecturing is that you get questions and feedback. Following the talk at Hardwicke last week I thought it may be useful to set out some central issues in relation to fatal accidents. These issues arose both in the talk itself and in conversations afterwards. There are 10 key issues which benefit from reiteration.
1. THE CONSEQUENCES OF KNAEUR FOR SERVICES CLAIM HAS NOT FULLY SUNK IN
That is the decision in Knauer -v- Ministry of Defence  EWHC 2553 (QB)
- A claim for services is a real financial loss and will be recovered based on the commercial costs of supplying those services.
- The claim will be awarded whether or not the services have been, or will be, supplied on a commercial basis.
- The relevant part of the judgment:-
- Mr Poole argued vigorously that there should be no award for either past or future services dependency. Five years have passed since Mrs Knauer’s death, he points out, yet Mr Knauer has not engaged a paid cook, cleaner, gardener or decorator, still less a resident housekeeper.
- This submission, with respect, is misconceived, on basic principles of the law of tort. If a claimant’s brand new Rolls-Royce is written off through the defendant’s negligence the damages must include its replacement value even if the claimant decides that he will change to a cheaper car or in future take public transport. The same principle applies to claims for loss of services under the Fatal Accidents Acts; and to claims for future loss, though not past loss, brought by a living claimant for her own personal injuries (Daly v General Steam Navigation Ltd  1 WLR 120). Of course in a sense the value of a lost spouse cannot be measured in money terms (see Proverbs, chapter 31, verses 10 ff.) but the law has to do the best it can.
- Mr Poole is right to say that in predicting the future one can take account of what is known to have happened already. As Aneurin Bevan said in a different context, “why look into the crystal ball, when you can read the book?” The classic example in tort law is a Fatal Accidents Act claim where the surviving spouse has himself died by the time of trial: there will be no award for his future dependency, though there may be for that of the deceased’s children. But this does not alter the basic rule that the claimant is entitled to the value of what he has lost. Indeed, Mr Poole’s submission is contradicted by high authority: in Hay v Hughes  QB 790 at 809B Lord Edmund-Davies said that “the fact that a widower decided to manage himself after the death of his wife would not disentitle him to sue for and recover damages for the pecuniary loss he had sustained.”
2. THE FACT THAT DEPENDENCY CAN BE BASED ON LOSS OF CHANCE RATHER THAN A BALANCE OF PROBABILITY
This can be important, particularly in the case of couples who have separated. The test is set out in the judgment of HHH Judge Coe (sitting as a High Court judge) in Hayes -v- South East Coast Ambulance Service NHS Foundation Trust  EWHC 18 (QB)
- In respect of the issue of whether or not Mr and Mrs Hayes would have reconciled, it is agreed that there is a two stage test (Davies v Taylor  AC 207). Firstly I must decide whether or not there was a significant chance (which may be less than 50%) as opposed to merely speculative possibility that the couple would reconcile. If the first stage is passed, then I must assess the chances of reconciliation in percentage terms and adjust the award accordingly.
3. PAIN AND SUFFERING PRIOR TO DEATH HAS TO BE ESTABLISHED BY EVIDENCE
Because the Judicial College Guidelines now give a range of awards for pain and suffering prior to death there was some discussion as to whether evidence was needed.
Consideration needs to be given to the judgment in Kadir -v- Mistry  EWCA Civ 1177 a case where death was caused prematurely because of clinical negligence. The judge at first instance found:
“With a good deal of reluctance and, I have to say, some hesitation I have come to the conclusion that this is not a case in which I can make an award for general damages for pain and suffering and loss of amenity. This is not because I consider there to be any form of set off as argued at one time by Mr Foster. That is an approach for monetary claims.Rather it is because the claimant has failed to establish on the balance of probabilities that the deceased suffered from any symptoms from which she would not in any event have suffered.”
Lord Justice Laws, in the Court of Appeal held
“It is in my judgment important to bear in mind on this part of the case that there are no special rules for the assessment of general damages for pain and suffering in a 1934 Act case compared with the case of a living claimant, save only the caveat in the Act which allows damages for mental anguish occasioned by the apprehension of an early death. This part of the case requires the court to undertake what to my mind is a wholly conventional exercise: what elements of pain and suffering as a matter of causation had been occasioned to the deceased by the respondent’s negligence?”
4. A CLAIM FOR LOSS OF CONSORTIUM CAN BE MADE (BUT THE FIGURES ARE NOT HIGH)
This principle, of claims for intangible benefits, is well established and should be considered in every case. See Beesley –v- Century Group Limited  EWHC 3033. It
“83. In my judgment the principle of making awards for loss of intangible benefits is now well established – see Kemp and Kemp [29-052]. It reflects the fact that services may be provided by a mother, wife, father or husband over and above that which may be provided by a paid replacement. In principle, there is no reason for differentiating between the position of children and spouses in connection with the availability of such awards.
84. In relation to services provided by a husband or father the position is summarised in Kemp and Kemp at p29047 as follows:
“Awards of this kind have also been made to a widow or child for the loss of services provided by a deceased husband or father. There is no reason in principle why such awards should not be made where the services provided by a husband or father justify it on the facts. Such awards ought to be in proportion to the more conventional awards already noted for wives/mothers. This will mean that they will be lower in the average claim where the deceased husband/father was the family breadwinner”.
5 THE EXTENT AND BREADTH OF SECTION 4 OF THE FATAL ACCIDENTS ACT IS OFTEN NOT FULLY APPRECIATED
Section 4 states:
“4. Assessment of damages: disregard of benefits.
In assessing damages in respect of a person’s death in an action under this Act, benefits which have accrued or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded”
See the judgment in Arnup –v- White  EWCA Civ 447. Para 20
“The Act [The Fatal Accident Act] only requires the quantification of the loss of dependency, [the Defendant’s counsel’s] submission that there are some exceptions to the disregarded rule is unsustainable. Once the loss of dependency has been calculated, there is nothing to be disregarded. This is what Parliament has decided, and the fact that the claimant will in many cases receive more than she has lost is nothing to the point. Parliament has decided what the law should be, presumably for policy considerations which it regarded as appropriate.”
6. THE TEST IS: REASONABLE EXPECTATION OF FINANCIAL GAIN
The “dependent” need not necessarily be supported by the deceased person at the time of the death. This was made clear in the case of Mubarek Amin –v- Imran Khan & Partners  EWHC 2958 (QB). A firm of solicitors who had settled a fatal accident case was successfully sued for not assessing dependency, and other aspects of the claim properly. The issue was whether the deceased’s parents had a potential claim for loss of dependency. The judge considered the advice of leading counsel in the first action and thought it did not address the issue of dependency fully. There were two matters:
“The first is that it appears to confuse the need for support with reasonable expectation of financial gain. It refers to Zahid’s parents as “being in a dependent” relationship and “financial support arrangement” but need does not need to exist in a fatal accident claim, an expectation of financial benefit is sufficient”. (emphasis in original text)
Secondly the “advice only addresses the worst case scenario. It was indeed possible that the dependency claim could have been regarded as very small, but it was also possible that a properly mounted claim, supported by an employment consultant’s figures and family evidence, could have given rise to a substantial and properly pleaded dependency.”
7: THERE ARE SOME DIFFICULT ISSUES IN RELATION TO LIMITATION AND FATAL ACCIDENTS
- The limitation period is not always three years.
2.It is possible for the limitation period to have expired before the death.
8. IT IS NOT ESSENTIAL (BUT IS PRUDENT) TO OBTAIN PROBATE OF LETTERS OF ADMINISTRATION PRIOR TO ISSUING
S.2(2) of the Fatal Accidents Act 1976 allows a dependant to bring an action if there is no executor or administrator, or an action is not brought within six months of the death. However the title of the action is, thereafter, of considerable importance. An action by a dependant, which purports to be brought on behalf of the estate, is in danger of being struck out.
9. IT IS DIFFICULT TO OBTAIN DAMAGES FOR THOSE WHO SUFFER PSYCHIATRIC INJURY FOLLOWING A FATAL ACCIDENT
So, for instance, in Brock & Brock –v- Northampton General Hospital NHS Trust  EWHC 4244 (QB) the judge rejected a claim for “nervous shock” brought by parents who were alleging negligence on the part of two hospital trusts. One of the trusts (Birmingham) admitted negligence but denied causation. The judge found that:-
- The claimants’ case rested on events following a telephone call.
- The call itself could not give rise to liability.
- The grief and sense of loss that every parent will suffer when a child dies is insufficient to found liability. There has to be a traumatic experience akin to witnessing an accident.
- There was no such traumatic experience in this case.
- Although the parents but suffered psychiatric problems brought about by their daughter’s death this was insufficient to establish liability.
10: BE VERY CAREFUL WHEN SETTLING A CASE FOR A LIVING CLAIMANT WHO IS SHORTLY TO DIE AS A RESULT OF NEGLIGENCE
Be very wary of settling such cases. In particular be very aware that there is only one cause of action. If a living claimant settles their case for negligence it is not possible for that claimant’s estate to bring a later action for fatal accident damages following the death. This is precisely what happened in Thompson –v- Arnold  EWHC 1875 (QB). The claimant’s solicitor settled an action for a living claimant, the victim of clinical negligence. That action was settled on the basis that the claimant’s solicitor assumed that a second action, for the dependants, could be brought after death. The solicitor was unaware that it was not possible to bring a second action in these circumstances. The defendant, well aware of the claimant’s solicitor’s mistaken belief, readily settled the action in the victim’s lifetime. The second action was struck out. The defendant had taken advantage of the claimant’s mistake but the conduct was not unconscionable.