Fatal Accidents

Presented by Emily Formby, Judith

Ayling and Quintin Fraser

22nd January 2015

POTENTIAL CLAIMS

Quintin Fraser

2

Introduction

• No remedy for dependants or estate at common

law

• Different framework imposed by statute

• Three statutes under which a claim on behalf of

the estate/dependants/victims can be brought:

– Law Reform (Miscellaneous Provisions) Act

1934 (s1(1))

– Fatal Accidents Act 1976 (s1(1))

– Human Rights Act 1998 (s6) and Article 2 of

European Convention on Human Rights

Law Reform (Miscellaneous

Provisions) Act 1934

• Claim is brought for the benefit of the estate

• Covers damages/ loss up to death – the claim of

the deceased

– PSLA: if death not instant, then damages can

be awarded for loss of amenity alone

– Traditional ‘Specials’

– No “lost years” – lost year claims can only be

brought when Claimant is alive (s1(2)(a)(ii))

• Funeral expenses recoverable

FAA 1976 – bringing the action

• Who is entitled to bring the action?

− Executor or administrator of the estate (s2(1))

− If there is no executor or administrator, or if no

action brought by executor or administrator, then

“the action may be brought by and in the name of

all or any of the persons for whose benefit an

executor or administrator could have brought it”

(s2(2))

• No more than one action can be brought

(s2(3))

FAA 1976 - for whom can the

action be brought? (I/II)• The Deceased must have been entitled to

bring an action had he survived, i.e. tortious

act (s1(1)) resulting in personal injury

- Suicide caused by tort doesn’t extinguish claim

(Corr v IBC [2007] EWHC 1875)

- But no claim if death not caused by injury/disease

• Action will be for the benefit of the

dependants of the Deceased

• Beware previous conclusion of claim

Detailed at s1(3)

• (a) the wife or husband or former wife or husband of the

deceased;

• (aa) the civil partner or former civil partner of the deceased;

• (b) 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;

Categories of dependants (I/IV)

• (c) any parent or other ascendant of the deceased;

• (d) any person who was treated by the deceased as his parent;

• (e) any child or other descendant of the deceased;

• (f) 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;

• (fa) 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;

• (g) any person who is, or is the issue of, a brother, sister, uncle

or aunt of the deceased

Categories of dependants (II/IV)

• s(4) “The reference to the former wife or husband of the

deceased in subsection (3)(a) above includes a reference to a

person whose marriage to the deceased has been annulled or

declared void as well as a person whose marriage to the

deceased has been dissolved” (similarly for civil partners)

Categories of dependants (III/IV)

• S (5) “In deducing any relationship for the purposes of

subsection (3) above—

• (a) any relationship by marriage or civil partnership shall be

treated as a relationship by consanguinity, any relationship of

the half blood as a relationship of the whole blood, and the

stepchild of any person as his child, and

• (b) an illegitimate person shall be treated as—

• (i) the legitimate child of his mother and reputed father, or

• (ii) in the case of a person who has a female parent by virtue of

section 43 of the Human Fertilisation and Embryology Act 2008,

the legitimate child of his mother and that female parent.”

Categories of dependants (IV/IV)

Points of note (I/II)

• Statutory list: no discretion

– Cohabitants: the “2 year rule”

– Goes well beyond immediate family unit, i.e. to grandparents, grandchildren, aunts, uncles (including by marriage) and cousins, and step-children

– But child of just one unmarried partner is not dependant even if living as family unit

Points of note (II/II)

• Court of Appeal in Swift v Secretary of State for Justice [2013] EWCA Civ 193 rejected extension of list of dependants:– “court should accord a generous or wide margin of

discretion to Parliament in relation to the legislative choices that it made in enacting section 1(3) of the 1976 Act”

– Legitimate aim to confine the right to recover damages to those who had relationships of some degree of permanence and dependence

– Proportionate pursuit of that aim to have 2 year cohabitation requirement for eligibility

Dependants for bereavement

award (s. 1A)

Narrower list:

• “(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.”

Bereavement Award

• Before 1st April 2002 - £7,500

• Then £10,000

• From 1 January 2008 - £11,800

• From 1 April 2013 - £12,980

• One award which is shared if more than

one person capable of recovering it

Is there a dependency?

• No need requirement that eligible dependant

was in receipt of a pecuniary advantage at the

time of the Deceased’s death (Taff Vale

Railway Co v Jenkins [1913] A.C. 1)

• Sufficient for an eligible dependent to have a

reasonable expectation of a pecuniary benefit

• Level of proof for expectation “a substantial

possibility” not “more likely than not” (Davies v

Taylor [1974] A.C. 207)

Other Factors to be considered

in assessment

• Contributory negligence: s5

• Re-marriage– S3(3) FAA 1976 specifically rules out taking account

fact of or prospects of the widow remarrying

– Fall foul of Human Rights Act?

– Potentially deal with via section 4: disregard of benefitas per Stanley v Saddique [1991] 2 W.L.R. 459

• Breakdown of relationship of co-habitees – lack of enforceable right to financial support must be taken into account (s3(4))

• But also prospect of marriage breakdown to be considered in assessment: Dalziel v Donald [2001] PIQR Q5

Human Rights Act 1998

• Relevant article of ECHR is article 2: right to life

• Confined to situations where a citizen’s Convention rights have been breached by a public authority

• Person may bring the claim if a “victim” pursuant to section 7 (1) HRA 1998: particular connection must be shown

• Successful claim in Rabone v Pennine care NHS Foundation Trust [2012] UKSC 2

Human Rights Act 1998

Rabone

• Mentally ill 24 year old released from detention at a mental hospital: subsequently committed suicide

• Defendant owed operational duty to protect Deceased from the real and immediate risk of suicide subsequent to assuming responsibility for her welfare and by exercising control over her (albeit she was not detained)

• No reasonable psychiatrist would have allowed the Deceased 2 days’ leave, and therefore no reasonable steps taken

• Deceased’s parents successful in HRA claim: no renunciation of article 2 claim through settlement of negligence claim under LR(MP)A 1934, as no right to damages for non-pecuniary loss in domestic law claim

• Both parents awarded £5,000 each: it was a “bad” breach of article 2.

ASSESSING LOST SERVICES

Judith Ayling

19

Section 3 FAA 1976

• In the action such damages, other than

damages for bereavement, may be

awarded as are proportioned to the injury

resulting from the death to the dependants

respectively

• 3(2) apportionment between dependants

in such shares as may be directed

20

Loss of services

• Includes as applicable DIY, gardening,

care, car servicing, IT skills

21

Lost services

• Most commonly where the deceased was

a father or mother looking after children

• Determined by life expectancy of survivors

if lower than life expectancy of deceased

but for tort (Desktop report or GP letter if

no access to medical records)

22

Approach of the Court

• Element of the judge reaching a “jury” award, that is, putting himself

in the position of a jury awarding damages and finding the sum

which appears to be reasonable compensation, looked at overall as

a lump sum, for the loss sustained. What is reasonable?

• Often significant uncertainty so % reductions to mathematical

calculations

• What is the test: anticipated actual cost of meeting C’s needs as

against what the deceased would have provided

• Expert evidence – ‘dependency report’ from care experts

• As with financial dependency, dependants, even if come within

definition, have to show deceased would have continued to provide

services, and for how long

• Real possibility enough, not BPR Davies v Taylor [1974] AC 207

23

Hay v Hughes [1975] QB 790

• Established as the ‘best instrument’ for assessing the

loss of dependency the cost of a nanny/carer over the

period during which the dependent would be expected to

receive the benefits of dependency, but ignoring the

value of the support he had in fact received from

relatives.

• This commercial cost can be enhanced to reflect the

special features of a mother’s care and attention. So the

calculation differs from that in non-fatal cases, where it is

the actual cost, so far as it can be calculated, of

gratuitous care actually given which is the measure of

damages.

24

What has happened?

• If surviving parent has employed a housekeeper or

nanny, then dependency on services likely to be

assessed by reference to the actual cost, both for past

loss and looking into future as the children grow older

• Otherwise net in hand figure to be used, see Corbett v

Barking

• Discount then made to reflect e.g. mother was caring

part-time or the probability care needs will decrease over

time

25

But…

• In Knauer v MOJ [2014] EWHC 2553 (QB) Mrs K dies at 46 of

mesothelioma. D argued Mr K had not in 5 years employed cook,

cleaner, gardener, decorator or housekeeper: no damages for loss

of services past or future. Mr K said he had not been able to afford

to employ help and the tasks had not been done or he had done

them

• Bean J short shrift to D: ignores basic principles of tort, and in Hay v

Hughes [1975] 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.” Court must assess what has

been lost.

• Allows cost of agency care at £16,640 per year and £1,500

gardening and decorating. Plus £3,000 Regan award.

26

Non-commercial care

• E.g. father or other relative steps in

• Generally pleaded not at gratuitous care

rates (see section 4 point below) but at

commercial cost

• Reduction at least to net value (no tax and

NI paid)

27

McGregor on Damages

• 36-095 Interesting feature of all the cases is that in only one of them

was a nanny housekeeper engaged. In each case the family had

sprung to the rescue … has therefore, not surprisingly, been a

resistance to awarding the full commercial cost of a nanny

housekeeper when that cost was never going to be incurred…

• There has, curiously, not been the same move to develop, in line

with the position in the related field of personal injuries, a pattern of

compensation for the caring relatives at a level short of commercial

rates of pay, though recoveries of damages have nevertheless been

somewhat muted.

• 36-096 Attempts to bring relative’s services into account by way of

deduction are misguided, see collateral benefits

28

Benefits to be ignored

• See section 4 FAA (ignore benefits)

• H v S [2002] EWCA Civ 792 (Kennedy LJ)– 29 In my judgment, in the light of the authorities, the position is

reasonably clear. Where, as here, infant children are living with and are

dependant on one parent, with no support being provided by the other

parent, in circumstances where the provision of such support in the

future seems unlikely, and the parent with whom they are living is killed,

in circumstances giving rise to liability under the Fatal Accidents Act

1976, after which the other parent (who is not the tortfeasor) houses

and takes responsibility for the children, the support which they enjoy

after the accident is a benefit which has accrued as a result of the death

and, pursuant to section 4 of the Act it must be disregarded, both in the

assessment of loss and in the calculation of damages.

29

Spittle v Bunney [1998] 1 WLR

847• ‘What, then, should have been the direction given to the Jury trying

the facts of the present case? … They should be told that the fact

that nobody was being paid or would be paid as a substitute mother

made no difference, and that Mrs. Spittle's services, given free, were

not to be set against any sum which they assessed. …

• What they ought also to be reminded of is that as children get older

they may also get more independent of their parents and less in

need of being looked after. In the early years the services rendered

by a mother to her small child may be valued by the cost of a hired

nanny. The requirements are to some degree comparable.

30

Spittle v Bunney

• As the child grows older, and reaches school age, the valuation by

commercial standards becomes less and less appropriate, and to

use them is again not comparing like with like. Once the child has

begun school, at least by the age of six, the extent of the services

decreases in amount. She needs, for a time, to be taken to and from

school. Later on, she may go there by herself. Not only is the

yardstick of a nanny's wage less appropriate, but the services

rendered by the mother change in nature.

31

Corbett v Barking Havering &

Brentwood HA [1991] QB 408• 50% reduction to a multiplicand was

upheld to the cost of a nanny/housekeeper

after school age.

32

Carer gives up own job

• Alternative way of measuring loss = lost

income– Decision must be reasonable

– Value of dependency = wages lost less any income

(e.g. income support) received, e.g. Mehmet v Perry

[1977] 2 All ER 529. Two of children had rare blood

disorder.

– One factor = amount of income given up

33

Cresswell v Eaton [1991] 1

WLR 1113• Aunt had given up work to look after the three children, and the

deceased mother had been working before her death

• ‘Where, as here, a claim is based in large part upon a relative's

actual loss of earnings reasonably incurred, modest discount only

should be made to reflect the part-time nature of the deceased

mother's care. And that is so even if it is as much the emotional as

the physical needs of the children which make it reasonable for the

relative to give up work.’

• It was conceded that the aunt had acted reasonably in giving up

work and that her loss of wages was less than would have had to be

paid to (or would have been earned net by) a suitable alternative

carer. So it was the lost earnings which were the measure of loss.

34

Carer gives up own job

• See Martin and Browne v Grey (13 May 1998): £29k per year as

housekeeper = start; discounted to £22,500 as multiplicand; court

won’t take earnings of stepmother at c£45k as start

• Batt v Highgate Private Hospital [2005] PIQR Q1 p1 where not

reasonable for father to have given up job so Q based on

housekeeper costs, much less than earnings

• Test is reasonableness: Kemp says if reasonable give up work get

higher figure

• Have seen cases where job given up but higher notional cost of

housekeeper sought

• In Bailey v Barking & Havering AHA (Times July 1978) Peter Pain

J declines to assess on basis of housekeeper costs where father

has given up work and earnings less than housekeeper

35

H v S [2002] 3 WLR 1179 (CA)

• Damages in respect of relative’s services

are in trust for the relative, and if terms of

trust seem unlikely to be fulfilled court

should take steps to avoid that. On facts

Kennedy LJ orders payment into court of

all sums children entitled to

36

Can surviving parent claim for

own loss?• See discussion in Martin and Browne v

Grey

• Approach is total damages to include acknowledgement of services lost by parent as well as children but need to avoid overlap

• Claim for several nannies/housekeepers where children have been separated

37

Manning v King’s College Hospital

NHS Trust [2008] EWHC 3008

• Wife and mother died as a result of clinical negligence.

The widower claimed the loss of her services around the

house inc cleaning, shopping, washing and cooking. The

children claimed the loss of her services as a mother.

Also claim additional cost of boarding school (over and

above day school) because the widower could not keep

taking them to and from school and caring for them after

work and hold down his own job at the same time.

• Stadlen J awarded damages for lost household and

maternal services making deductions for the gratuitous

nature of the services but rejected the claim for the

boarding school fees as constituting double recovery.

38

No children

• Sloan v Halsen (Lawtel 2010) PPs of £23,200 pa for care and

companionship deceased would have given to widow who was

visually impaired. Following his death widow arranged for healthcare

service to give care and assistance and also a case manager

• Zambarda v Shipbreaking (Queenborough) Ltd [2013] EWHC

2263: widow’s claim following death from mesothelioma includes

care given to her because of complex pre-existing health problems.

Leighton-Williams J reminds himself test is not what the C needs but

what the deceased would have provided. So comparatively light

care till age 76, then ability to care diminishes, from age 79 no care.

Assessed on basis professional care with some family input. Also

£4,000 intangible benefit award as deceased provided far more than

conventional husband

39

Regan v Williamson award

• Regan v Williamson [1976] 1 WLR 305

• Lump sum award for loss of services over and above those provided

by a paid housekeeper

• The “special qualitative factor of the lost maternal care”

• Followed by Mehmet v Perry [1977] 2 All ER 529 where award to

both to husband and children

• H v S [2003] QB 965 where Kennedy LJ awarded £3,500 and

£4,500 to children and CA accepts maximum of £5,000 for very

young children

• Kemp and Kemp!

40

CALCULATIONS & RECENT CASES

Emily Formby

41

Earnings dependency:

multiplicand

• How is dependency on earnings assessed?

• Harris v Empress Motors [1984] 1 WLR 212 start point– 66% or 75%

• If partner working then Coward v Comex Houlder Diving Limited (1984) The Independent 25th July,

CA

– add partner’s earnings to the “pot”

– apply dependency fraction

– deduct all of survivor’s earnings

• Accurate calculation

Calculation

• Assume net weekly earning of £250

• While family at home, calculate a 75% (or ¾)

dependency: therefore (£250 x 75%) = £187.50 per

week

• Wife alone, calculated 66% dependency: therefore (£250

x 66%) = £165 per week

• Wife return to work when family grow up and earn £100 net per week, calculate 66% dependency on total weekly income. Wife remains dependent on 2 parts: therefore (£250 + £100) x 66% = £231; then subtract all wife’s earnings so £231 - £100 leaving dependency on £131 per week

Calculating the multiplier

• The long settled position: multiplier at date of

death not trial

• Cookson v Knowles [1979] AC 556

– Once and for all at date of death

– Everything thereafter uncertain

• Graham v Dodds [1983] 1 WLR 808

– Not assume deceased would have lived

– Delaying trial is a windfall for dependants

• In fact, opposite happens: cost to claimants

Challenge to Cookson

• Leapfrog appeal to Supreme Court in

Knauer v Ministry of Justice [2014]

EWHC 2553

• Based on Lord Salmon in Cookson

– “it is impossible to lay down any principle of

law which will govern the assessment of

damages for all time”

– Cases pre-date the use of Ogden tables

Will Knauer succeed?

• Supreme Court yet to indicate if they

permit appeal

– Calculation concern met by Ogden

– Delay works both ways: procedural

– Law Commission (No. 263, Nov 1999) favour

change

– White v ESAB Group Ltd [2002] PIQR Q6 –

Nelson J support reform but Defendant settled

– A Train & Sons Ltd v Fletcher [2008] EWCA Civ

413 – wish for reconsideration

Current “work around”

• Corbett v Barking Havering & Brentwood

Health Authority [1991] 2QB 408 – provide

possible present solution

• Mother die shortly after childbirth

• Dependency at death: 12

• Claim at trial 11½ years later leaving 6

months

• Court of Appeal adjust multiplier to 15

(leaving 3 ½ for future)

Cookson v Knowles

• Currently take multiplier at death

• Will need multiplier for life and for earnings

• Deduct time from death to trial as “term certain” from

Ogden multiplier

• May need to apportion earnings multipliers to reflect

different periods and types of dependency

• Can base on term certain/ early receipt/ ratio

• No absolute guide: mix of actuarial calculation and “finger

in air”

• Commentary in Ogden tables “actuarial approach” and

“alternative approach”: more mathematically accurate but

no approval

Fatal Accidents Act 1976,

s.4

• s.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 will or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded.”

• Pidduck v Easter Scottish Omnibus [1990] 1 WLR 993 CA disregard widow’s pension when lost pension claim made

• Arnup v. White [2008] EWCA Civ 447: all benefits accruing after death are to be disregarded entirely. The sole question is to value the dependency

s4 continued

• Wood v Bentall Simplex [1992] 1 PIQR 332 business relationship cannot recover, only a family based dependant. What if businessman overpaid his family, who are staff?– Is the dependency reduced by taking into account assets

of the business that pass to the widow?

– Not deducted under s4; can they be taken into account under s3?

– No says Court of Appeal

– Look at loss suffered• Is there a loss resulting from the death? And

• If there is, what are the appropriate damages for that loss?

Wealth Creator

• Cape Distribution v Aine O’Loughlin

[2001] EWCA Civ 178 deceased ran

property portfolio

• Widow inherit properties but could not manage

them: sold some and lived off income

• Is there a loss and how to calculate?

• Manager to replace business “flair” and

disregard sale of business assets

• Court of Appeal approve approach and analysis

Wealth Creator

• Welsh Ambulance Services NHS Trust

v Williams [2008] EWCA Civ 81

– Deceased had entrepreneurial skills

– Wife no part in the business essence,

services of £3,000 pa to the company

– All family work together but benefit beyond

their contribution

– Value the loss of the “wealth creator”

– Disregard continued success of the business

Will s4 Survive?

• Lord Sumption in Cox v Ergo Versicherung AG

[2014] UKSC 22 described s3 (prospect of

remarriage) and s4 as “marking a departure from

ordinary principles of assessment in English law,

which can fairly be described as anomalous”

• Calculate in line with German legislation: no

disregard

• Would require primary legislation

– So far ignore Lord Diplock in Cookson v

Knowles

Lost years

• Claim brought and concluded before death

cannot be revived: Thompson v Arnold

[2007] EWHC 1875

• “Lost year” wages claimed before death but not

after

• Larger damages with care claim and lost years

earnings: all of wages not proportion

• Could lose out because no dependency on

services

Avoiding the Anomaly

• “Trial or settlement” under review by MoJ and

mesothelioma victims

• Settlement during life requires express

agreement to preserve FAA claim

• Interim / provisional damages? Murray v Shuter

[1972] 1LLR 6

• Prospective loss of dependency with agreement

not to claim further

– Can this be binding?

– Avoiding need for approval?

Periodical Payments

• Periodical payments can be awarded in

Fatal Accident Act claims (s7 Damages

Act 1996)

• Could resolve argument on dependency

for children – until further education/ no

longer a dependant; will reduce anomaly

of Cookson v Knowles

• Future care for widow for life

Apportionment

• Award needs Court approval if children involved

• Court of Protection may be involved thereafter

• However, much of calculation of dependency involves children’s support exercised by remaining parent

• Court recognises this – 25% default valuation

• F & H v Kaur (Lawtel AM0201113 – 2007 claim) damages of £430,000 gave £395,000 to mother, £20,000 to 13 year old and £15,000 to 15 year old

Questions?

© Thirty Nine Essex Street22 January 2015

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