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Tort | Negligence

Remedies: Death

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Introduction

The common law maxim actio personalis moritur cum personae meant that the tortious rights and liabilities of either party, were extinguished on their death. However, there is now statutory provision to allow a cause of action to survive the death of either a claimant or a defendant. This was introduced to overcome the injustices suffered, by victim's families, who could not seek redress from the defendant.

There are a number of terms and legal roles relevent to situations where a person has died. A person can set out their wishes about distribution of their estate (land, money and other belongings) on their death in a will. A person who dies without leaving a will is called an intestate. In a will executors are named persons left with the task of administering the distribution of the estate, according to the deceased's wishes. In intestacy, administrators will undertake this role. Personal representatives is a generic term, referring to both executors and administrators. Beneficiaries inherit all or part of the deceased's estate, either as named persons in the will or by satisfying the rules of intestacy. Dependants are those who the deceased used to provide for financially.

Law Reform (Miscellaneous Provisions) Act 1934

The Law Reform (Miscellaneous Provisions) Act 1934 (LRA 1934) altered the common law position that there could be no actions on behalf of a deceased claimant and no claims against a deceased defendant.

Law Reform (Miscellaneous Provisions) Act 1934

S1: Effect of death on certain causes of action

S1(1): Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation.

S1(2): Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person -
S1(2)(a): shall not include -
S1(2)(a)(i): any exemplary damages;
S1(2)(a)(ii): any damages for loss of income in respect of any period after that person's death;]
S1(2)(c): Where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

S1(4): Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Act, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

S1(5): The rights conferred by this Act for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons...

Therefore, claim tortious causes of action, except for defamation, survive the defendant's death and the claimant's death (S1(1) LRA 1934). However, under S1(2)(a) a claimant's estate may not recover (i) exemplary damages or (ii) damages under the head of loss of income. Monies received by the estate from insurance claims or pension payouts due to the death will not be taken into account (S1(2)(c)). Similarly expenses paid from the estate will not be considered, apart from reasonable funeral costs (S1(2)(c)).

S1(4) LRA 1934, covers actions which do not exist as a legal cause of action unless the claimant can show that he has suffered damage (as in Negligence). Under S1(1), the case of action must exist at the time of defendant's death. If the damage does not occur until the same time as the death of the defendant or even after his death, then a claimant would not have cause for action under S1(1). Therefore, S1(4) allows a claim in these circumstances to survive the tortfeasor's death.

Awards

Only damages which arise during the claimant's survival period may be recovered. Therefore, if a claimant dies immediately in an accident, then the only recoverable damages are for funeral expenses paid for by the estate and any property damaged in the incident. If an action is brought by an estate on behalf of the deceased, then the damages awarded will be distributed to beneficiaries under the will or using the rules of intestacy.

The Fatal Accidents Act 1976

At common law there was no cause of action for dependants in relation to the death of another person.

Baker v Bolton (1808) 1 Camp 493

.. the death of a human being cannot be complained of as an injury...

Claimants

However, the Fatal Accidents Act 1846 gave limited dependants, without means to support themselves, the right to claim for compensation for loss of support. The categories have now been extended in recognition of the changing nature of dependencies.

Fatal Accidents Act 1976

Replaced the Fatal Accidents Act 1846.

S1: Right of action for wrongful act causing death

S1(1): If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

S1(2): Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person ('the deceased') whose death has been so caused.

S1(3): In this Act 'dependant' means -
S1(3)(a): the wife or husband or former wife or husband of the deceased;
S1(3)(aa): the civil partner or former civil partner of the deceased;
S1(3)(b): any person who -
S1(3)(b)(i): was living with the deceased in the same household immediately before the date of the death; and
S1(3)(b)(ii): had been living with the deceased in the same household for at least two years before that date; and
S1(3)(b)(iii): was living during the whole of that period as the husband or wife of the deceased;
S1(3)(c): any parent or other ascendant of the deceased;
S1(3)(d): any person who was treated by the deceased as his parent;
S1(3)(e): any child or other descendant of the deceased;
S1(3)(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;
S1(3)(ff): any person (not being a child of the deceased) who, in the case of any civil partnership 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 civil partnership;
S1(3)(g): any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.

S1(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.
S1(4A): The reference to the former civil partner of the deceased in subsection (3)(aa) above includes a reference to a person whose civil partnership to the deceased has been annulled as well as a person whose civil partnership to the deceased has been dissolved.

S1(5): In deducing any relationship for the purposes of subsection (3) above -
S1(5)(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
S1(5)(b): an illegitimate person shall be treated as the legitimate child of his mother and reputed father.

S1(6): Any reference in this Act to injury includes any disease and any impairment of a person's physical or mental condition.

Therefore, S1 Fatal Accidents Act 1976 (FAA 1976), creates a new cause of action for dependants in relation to the death of another person. The claim is based on the death of the deceased, rather than the tort itself, with the condition that if the deceased had survived he would have been able to bring a claim against the defendant himself. Under S1(3), the definition of a dependant is very wide but does not include a co-habitee of less than two years.

Assessment of dependency award

There is statutory guidance on how dependency of the claimant should be valued.

Fatal Accidents Act 1976

S3(1): 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.

Damages aim to compensate for the financial loss of the deceased to the dependants. Therefore, this is a future loss and calculated using a multiplier and multiplicand formula.

  • Multiplicand

    For a living claimant the multiplicand is the net annual loss to the claimant. Therefore, the multiplicand is based on the net annual loss to the dependant.

    For dependent spouse or children, the net annual loss should be based on the deceased's net annual wage. Deductions are made for the money the deceased would have spent on themselves: 25% (if married with dependent children) and 33% (if married with no dependent children).

    If the deceased provided contributions to the dependants, apart from a wage, such as employment perks (car, reduced price goods or services) or services rendered (household jobs) these may also be included in the multiplicand.

  • Multiplier

    For a living claimant the multiplier is based on the period the claimant would lose the income. Therefore, the multiplier should be the period of loss, effectively the expected period which the dependency would have continued.

    Children would be expected remain dependent until the age of 18. However, if the child was intending to stay in full time education or disabled then the period of loss may be longer. Spouses would be likely to remain dependent until retirement age, although this may be altered if either partner was ill and not likely to live until retirement age.

    The multiplier is then converted, using Ogden tables, to reflect the advantage received from a lump sum payment.

  • Calculation

    multiplicand X multiplier = damages

Non wage earner

Difficulties arise in cases where the deceased is a non wage earner. The courts will assess the value of physical services rendered by the deceased (household jobs or child care). Child claimants may also claim for loving care provided by a deceased parent.

  • Mehmet v Perry [1977] 2 All ER 529
    Facts:

    A mother was killed. The deceased was not a wage earner but stayed at home to look after the children. The father gave up his job to look after the children.

    Issue:

    What damages could be awarded?

    Held:

    The father could recover for his loss of earnings after giving up his job to care for his children. The children could recover for the loss of the mother's daily care, instruction and affection.

  • Cresswell v Eaton [1991] 1 All ER 484
    Facts:

    A single full-time working mother of three young children was killed. The children went to live with their aunt, who had to give up her full-time employment to look after them.

    Issue:

    What damages could be awarded?

    Held:

    The award was based upon the aunt's loss of earnings.

  • Spittle v Bunney [1988] 1 WLR 847
    Facts:

    A mother was killed. Her orphaned 3 year old child was brought up by an aunt, who was not working as she was already looking after her own children.

    Issue:

    What damages could be awarded?

    Held:

    The Court of Appeal found that the multiplicand should be the cost of employing a nanny. The multiplier should be reduced to reflect the lessening care requirements as the child got older.

One amount of damages will be awarded under FAA 1976 and can then be apportioned amongst the dependants, according to the court's directions.

Fatal Accidents Act 1976

S3: Assessment of damages

S3(1): 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.

S3(2): After deducting the costs not recovered from the defendant any amount recovered otherwise than as damages for bereavement shall be divided among the dependants in such shares as may be directed.

S3(3): In an action under this Act where there fall to be assessed damages payable to a widow in respect of the death of her husband there shall not be taken account the re-marriage of the widow or her prospects of re-marriage.

S3(4): In an action under this Act where there fall to be assessed damages payable to a person who is a dependant by virtue of S1(3)(b) above in respect of the death of the person with whom the dependant was living as husband or wife there shall be taken into account (together with any other matter that appears to the court to be relevant to the action) the fact that the dependant had no enforceable right to financial support by the deceased as a result of their living together.

S3(5): If the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those expenses.

S3(6): Money paid into court in satisfaction of a cause of action under this Act may be in one sum without specifying any person's share.

S4: 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.

A court is unable to take into account a widow's prospects of re-marriage, but a widower is not mentioned (S3(3)). If a widow has remarried no account of her new financial situation will be taken. A co-habitee may have his award reduced to take account of the fact that he was not married to the deceased and therefore had no enforceable right for financial support (S3(4)). Under S4, any other benefits received as a result of the death will be ignored for the purposes of damages, including damages awarded under the Law Reform (Miscellaneous Provisions) Act 1934. Funeral expenses paid for from the estate may be claimed (S3(5)).

Bereavement award

Bereavement damages may also be awarded under the FAA 1976.

The Fatal Accidents Act 1976

S1A(2): A claim for damages for bereavement shall only be for the benefit -
S1A(2)(a): of the wife or husband or civil partner of the deceased; and
S1A(2)(b): where the deceased was a minor who was never married or a civil partner -
S1A(2)(b)(i): of his parents, if he was legitimate; and
S1A(2)(b)(ii): of his mother, if he was illegitimate.

S1A(3): Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £10 000.

S1A(4): Where there is a claim for damages under this section for the benefit of both the parents of the deceased, the sum awarded shall be divided equally between them (subject to any deduction falling to be made in respect of costs not recovered from the defendant).

S1A (5): The Lord Chancellor may by order made by statutory instrument, subject to annulment in pursuance of a resolution of either House of Parliament, amend this section by varying the sum for the time being specified in subsection (3) above.

Therefore, if the deceased was married or in a civil partnership, only the spouse may claim the bereavement damages. If the deceased is a minor the parents share the award. Only the mother of an illegitimate minor can claim the award. There is a fixed award S1A(3), which as been revised by statutory instrument, as provided for by S1A(5).

Therefore, for deaths from 1 April 2007 the award is £11 800 and from 1 April 2013 the award is £12 980.

Commencing a claim

A claim may be commenced by the personal representatives. However, if a claim is not commenced within six months of the death, the dependants and anyone entitled to the bereavement award may bring an action in their own name.

Fatal Accidents Act 1976

S2: Persons entitled to bring the action

S2(1): The action shall be brought by and in the name of the executor or administrator of the deceased.

S2(2) If -
S2(2)(a): there is no executor or administrator of the deceased, or
S2(2)(b): no action is brought within six months after the death by and in the name of an executor or administrator of the deceased,
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(3): Not more than one action shall lie for and in respect of the same subject matter of complaint.

S2(4): The plaintiff in the action shall be required to deliver to the defendant or his solicitor full particulars of the persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.

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