1. Fatal Accidents
Presented by Emily Formby, Judith
Ayling and Quintin Fraser
22nd January 2015

2. POTENTIAL CLAIMS
Quintin Fraser
2

3. 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

4. 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

5. 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))

6. 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

7. 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)

8. • (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)

9. • 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)

10. • 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)

11. 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

12. 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

13. 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.”

14. 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

15. 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)

16. 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 benefit
as 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

17. 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

18. 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.

19. ASSESSING LOST SERVICES
Judith Ayling
19

20. 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

21. Loss of services
• Includes as applicable DIY, gardening,
care, car servicing, IT skills
21

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. 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

39. 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

40. 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

41. CALCULATIONS & RECENT CASES
Emily Formby
41

42. 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

43. 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

44. 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

45. 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

46. 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

47. 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)

48. 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

49. 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

50. 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?

51. 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

52. 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

53. 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

54. 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

55. 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?

56. 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

57. 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

58. Questions?
© Thirty Nine Essex Street
22 January 2015
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