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Presented by Emily Formby, Judith Ayling and Quintin Fraser22nd January 20151POTENTIAL CLAIMSQuintin Fraser2Introduction No remedy for dependants or estate at common lawDifferent framework imposed by statuteThree 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 Rights3Law Reform (Miscellaneous Provisions) Act 1934Claim is brought for the benefit of the estateCovers damages/ loss up to death the claim of the deceased PSLA: if death not instant, then damages can be awarded for loss of amenity aloneTraditional Specials No lost years lost year claims can only be brought when Claimant is alive (s1(2)(a)(ii))Funeral expenses recoverable4FAA 1976 bringing the actionWho 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))
5FAA 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 injurySuicide caused by tort doesnt extinguish claim (Corr v IBC  EWHC 1875)But no claim if death not caused by injury/diseaseAction will be for the benefit of the dependants of the DeceasedBeware previous conclusion of claim
6Detailed 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)7(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)8s(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)9S (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)10Points of note (I/II)Statutory list: no discretionCohabitants: the 2 year ruleGoes well beyond immediate family unit, i.e. to grandparents, grandchildren, aunts, uncles (including by marriage) and cousins, and step-childrenBut child of just one unmarried partner is not dependant even if living as family unit
11Points of note (II/II)Court of Appeal in Swift v Secretary of State for Justice  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 ActLegitimate aim to confine the right to recover damages to those who had relationships of some degree of permanence and dependenceProportionate pursuit of that aim to have 2 year cohabitation requirement for eligibility
12Dependants 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.
13Bereavement AwardBefore 1st April 2002 - 7,500Then 10,000From 1 January 2008 - 11,800From 1 April 2013 - 12,980One award which is shared if more than one person capable of recovering it14Is there a dependency?No need requirement that eligible dependant was in receipt of a pecuniary advantage at the time of the Deceaseds death (Taff Vale Railway Co v Jenkins  A.C. 1)Sufficient for an eligible dependent to have a reasonable expectation of a pecuniary benefitLevel of proof for expectation a substantial possibility not more likely than not (Davies v Taylor  A.C. 207)
15Other Factors to be considered in assessmentContributory negligence: s5Re-marriageS3(3) FAA 1976 specifically rules out taking account fact of or prospects of the widow remarryingFall foul of Human Rights Act?Potentially deal with via section 4: disregard of benefit as per Stanley v Saddique  2 W.L.R. 459Breakdown 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  PIQR Q5
16Human Rights Act 1998Relevant article of ECHR is article 2: right to lifeConfined to situations where a citizens Convention rights have been breached by a public authorityPerson may bring the claim if a victim pursuant to section 7 (1) HRA 1998: particular connection must be shownSuccessful claim in Rabone v Pennine care NHS Foundation Trust  UKSC 2
17Human Rights Act 1998RaboneMentally ill 24 year old released from detention at a mental hospital: subsequently committed suicideDefendant 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 takenDeceaseds 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 claimBoth parents awarded 5,000 each: it was a bad breach of article 2.
18ASSESSING LOST SERVICESJudith Ayling19Section 3 FAA 1976In 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 respectively3(2) apportionment between dependants in such shares as may be directed20Loss of servicesIncludes as applicable DIY, gardening, care, car servicing, IT skills21Lost servicesMost commonly where the deceased was a father or mother looking after childrenDetermined 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)
22Approach of the CourtElement 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 calculationsWhat is the test: anticipated actual cost of meeting Cs needs as against what the deceased would have provided Expert evidence dependency report from care expertsAs with financial dependency, dependants, even if come within definition, have to show deceased would have continued to provide services, and for how longReal possibility enough, not BPR Davies v Taylor  AC 207
23Hay v Hughes  QB 790Established 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 mothers 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.
24What 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 olderOtherwise net in hand figure to be used, see Corbett v BarkingDiscount then made to reflect e.g. mother was caring part-time or the probability care needs will decrease over time
25ButIn Knauer v MOJ  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