FATAL ACCIDENT DEPENDENCY AND CULTURAL EXPECTATIONS: THE REPORTED CASES

A number of recent cases I have been involved in have highlighted the need for care when dealing with claimants who have specific cultural expectations as to dependency.  There are relatively few reported cases on this topic. It is worth looking at them.

KEY POINTS

Perhaps the major point to be made is to read the judgment in Amin -v- Imran Khan below.  If a schedule of damages had been prepared, supported by appropriate evidence, then the fatal accident claim would have settled for an appropriate amount. The gathering of appropriate evidence is crucial to the claim.

KANDALLA -v- BRITISH AIRWAYS BOARD

In Kandalla -v- British Airways Board [1980]  All ER 341 the plaintiffs two daughters, who were both doctors, died in an aircraft accident.  The plaintiff was an Iraqi doctor and was aged 74 and his wife aged 68.

The judge found that the daughters would have supported their parents.  The couple would have left Iraq in their old age to be supported by their daughters.

“The next question is how much of their income would have been needed for the support of their parents? This would depend on how much of their fortune the parents could have removed from Iraq and what, if any, earning capacity might have been left to the plaintiff after his arrival in this country. His evidence suggested that he hoped to work with his daughters in some form of clinic. The defendants have argued that because the daughters appear to have been living up to and beyond the limit of their own earnings at the date of their deaths it should be assumed that they would have had no money available to look after their parents. I cannot accept this. They may well have been spending all their earnings on themselves up to the time of their deaths; they were young and as yet the parents did not need their support. They may not yet have been ready to settle down to the rigours of full time medical practice. Once faced, however, with the responsibility for their parents, I think it can be anticipated that they would have applied their undoubted earning capacities to providing for their parents. Between them they were clearly capable of making sufficient money to support their parents.

What I suppose would have happened if the parents had come to this country would have been that they would have lived with either one or both their daughters and would thus have been provided with a home, food, clothing and such reasonable comforts as their daughters’ available incomes could provide. I can only approach the matter broadly. The plaintiff suggests that I should allocate two-fifths of the daughters’ income to the support of their parents, but with the many imponderables I think this is too high a percentage. I propose to assume that the two daughters would have been prepared to spend up to a quarter of their available net income for the support of their parents and to make the further assumption that this dependency would have commenced in the year 1973–4. In considering the question of the proportion of the income to be applied I have not, of course, overlooked the fact that the girls might have married and thus have had less of their income available for their parents’ support because of their own immediate families’ needs. However, as I propose to ignore the possibility of marriage and dependants for the purpose of assessing the Law Reform (Miscellaneous Provisions)

Act 1934 claims as will appear later, I have not given any great weight to this factor in valuing the Fatal Accidents Acts claim.”

THE METHOD OF ASSESSMENT

“Taking this then as my starting point the total net available income from both daughters from the tax year 1973–4 to the end of the tax year 1979–80 was to the nearest round figure £72,000; thus I allow as a loss of dependency a quarter of this figure, namely £18,000, to take one up to the end of the current tax year, ie April 1980, which I apportion equally between the plaintiff and his wife. The plaintiff is now 74 with a life expectation, according to the life expectation tables, of 8.59 years; his wife is 68 with a life expectation of 14.97 years. I shall quantify the plaintiff’s continuing dependency at five years purchase and the wife’s at nine years purchase. The current net income of the two daughters would be approximately £19,000, a quarter of which is £4,750. Accordingly I shall allow five years purchase at £4,750 which I shall round up to the sum of £24,000, which I again apportion equally between the plaintiff and his wife. Finally I shall allow a further four years purchase on the wife’s claim at the rate of £3,000 per annum. I allow rather more than half the joint dependency to the wife because in fact it costs proportionately more to provide support for one person than it does for two people living together. This then is a further £12,000; thus the total dependency before considering any deductions that have to be made because the parents have inherited their daughters’ estates comes to the total sum of £54,000 apportioned as to £21,000 to the plaintiff and £33,000 to his wife.”

 

AMIN -V- IMRAN KHAN

In Amin -v- Imran Khan and Partners [2011] EWHC 2958 is particularly instructive reading for practitioners. This was an action in damages against solicitors who were found to have under-settled a fatal accident act claim.

THE ORIGINAL ACTION

Zahid Mubarek was 19 years old when he was killed on the 28th March 2000 – murdered by a cellmate at Feltham Young Offender Institution. The cellmate was a known racist with a history of violence. Zahid should never have been placed in a cell with him. Unsurprisingly the prison service accepted responsibility for the death. However the original fatal accident claim against the prison service had to be discontinued because of errors in the way it was issued.

PROBLEMS WITH THE ORIGINAL ACTION

Problems upon issue of the first action When the claim form was issued by the original solicitors against the prison service no letters of personal representation had been taken out. The claim was expressed to be in negligence and included issues under the Human Rights Act 1998. No reference was made at all either to the Law Reform Miscellaneous Provisions Act 1934 or the Fatal Accidents Act 1976. As the judge noted the claim form was defective, it did not name the correct causes of action, nor did had the letters of administration been obtained.

Assessing a dependency claim: expectation of benefit not need

On the face of it this was an unpromising claim for dependency. Zahid was aged 19, had no children or obvious dependants, no real employment history and a criminal record. In the original action against the prison service leading counsel had been asked to advise. The judge stated that there were two matters arising from leading counsel’s advice in relation to the potential dependency claim by Zahid’s parents. “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.

How the dependency claim should have been assessed

The judge in the Amin case had to consider what would have been awarded if the original action had proceeded against the prison service.

He considered:

Earnings No-one can pretend that assessing a dependency claim in these circumstances is an easy task. However the crucial issue is that there was evidence in support of the claim which the court could rely upon. Although Zahid had a troubled past he came from a good family, his brother’s went to university. His father and uncle were described as “hardworking, honest and responsible men”. His father had arranged a job and Zahid had show some talent .

The judge’s view was that if this matter had been litigated the court would have taken the view that given Zahid’s age, supportive and strong family and availability of work options, he would have got into reasonably well paid employment. The nature of the dependency The judge accepted that there was a reasonable chance of children from Zahid’s background living at home with their parents, sometimes for many years and providing for them financially.

It was the practice of the extended family to make much more substantial payments to their parents. This tradition of making such payments continued after a son left home, albeit at a lower and proportionate level. Higher sums would be paid after the parents’ retirement. In addition the sons were expected to help with caring for the family, including DIY, cooking, gardening and necessary care in their hold age.

The size of the dependency claim

Sir Robert Nelson made the following conclusions in relation to the valuation of the fatal accident and Law Reform Act claim.

(1) Pain and suffering would amount to £7,500.

(2) There would be pre-retirement payments made to the parents which amounted to £22,848.00

(3) Post retirement payments amounted to £55,230.00. The overall award that was likely to have been made in the fatal accident claim was, therefore, £85,485.

(4) Aggravated damages In addition the judge found that it was likely that aggravated damages would have been awarded, on the particular facts of that case, on the basis of 50% of the schedule, that is £42,742 giving a total of £128,227.

What would have happened if the original claim had been properly formulated ?

The Judge was absolutely clear in his view as to the likely outcome if the claim had been properly formulated.

If a schedule had been served on the Secretary of State totalling £128,227, supported by evidence from the family and from the employment consultant and other witnesses about the culture of the Asian community as to the payment to parents by their sons, the probability is that the Secretary of State would have put forward an offer in settlement of the claim. Faced with an evidential basis for the dependency and services claim, he would have been obliged to have offered a figure within striking distance of the sum claimed, and if that was not accepted, pay it into court. This would have been necessary in order to make an effective payment in, and to avoid the litigation and its potential embarrassment, both in relation to the negligence claim, and more particularly the misfeasance in public office claim.”

Cultural differences must be considered

The Amin case is indicative of the facts that the courts are sensitive to the practices of different communities when considering a claim for fatal accident damages. There are several cases where the courts have recognised that cultural factors play a large part in determining whether a claim can be made under the Fatal Accidents Act and the nature of that claim.

 BHAWSAR -v- AHMED

In Bhawsar –v- Ahmed [2004] All ER (D) 74  an “overview” approach was used to award £80,000 to an elderly mother of a an adult son.  The primary difficulty in assessing damages was the unclear evidence as to the financial, and other, support the deceased son would have provided when there were other family members who also assisted.   The judge held that a multiplier/multiplicand approach could not be adopted. However that did not prevent the award of damages.

“33. More importantly, and this goes to the very root of my judgment in this case, I do not accept that the comparatively young deceased would have taken on the responsibilities of looking after the claimant full time, alone and unsupported for the rest of his life. We are not dealing with a man who is of limited ability with a little job and willing to work as a drudge to keep his parent happy and healthy. We are considering an attractive man, well talented who could have done many things. He would have helped to look after his mother had he lived, but I do not think for one minute that he looked upon this as his sole view of life, nor do I believe that had the claimant become m ore difficult, he would have merely increased the amount of effort he put into looking after her. This case is riddled with imponderabilities and any multiplier/multiplicand approach in my view is fundamentally and completely flawed.

34. For these reasons, although the defendants do not say that the dependency both in financial terms and in care terms of a personal loss, is not made out – they put the figures as substantially less that that put forward by the claimant. At the end of the case, the claimant’s counsel indicated that he accepted that the evidence of Hemant was not credible. He put his case on the basis of multiplier/multiplicand with deductions. What he said was that there was overwhelming evidence of dependency. I agree. Where I disagree is that the evidence in this case does not satisfy me that the overwhelming result of all that would happen would be that the claimant would be looked after by the deceased forever. I think that there has been a considerable amount of alteration of the circumstances of the claimant and Hemant, taking into account the fact of this case. It may well be that they, the deceased and the claimant, would have lived together. It may well be that Hemant would have stayed or he could have gone with his wife. I think it is beyond doubt that Hemant would have contributed to the price of any property and I do not consider that the likely stay in the property by the claimant and the deceased would necessarily have been long-lasting both from the deceased’s activities and also from the point of view of the claimant’s illness and schizophrenia. It seems to me highly likely that if the deceased had lived, Hemant would have been a contributing part of the family and he was a contributing part of the family both in his money and in his efforts before the death and after the death and up to today and I do not consider that he can be brushed aside in the way he wants to.

35. It follows from all this that the figures in lump sum are much lower than the figures in multiplier/multiplicand contended for by the claimant. The defendant has helped me in giving me his figures for the lump sum and they amount to a total of £50,000 and £10,000 of that is the non-financial claim. It seems to me that those figures are a little low but they do provide a way of looking at this case, which I find attractive. I propose a lump sum payable as a consequence of the dependency of the claimant upon the deceased bearing in mind all the facts of the case and the imponderables which I have cited above in the sum of £65,000 for financial dependency and £15,000 for a loss of caring and the physical dependency after the deduction for the contributory negligence of the deceased which the claimant has lost as a consequence on the deceased’s unfortunate death. In addition there will be the sum for the funeral expenses and such other expenses as are included appropriately in such a claim. I understand that a Law Reform Act claim was not made in this case because it is not appropriate when one deals with a claim for an adult deceased.”

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