This article concerns claims where injuries have caused death. The basis of any claim will be statutory in origin because at common law the right of the deceased to make a claim ceased to exist on death. Difficult questions and points of law may arise and about which expert advice will be needed.
The Statutory Framework
There are two principle statutes giving rise to the ability to make a claim: the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.
The Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A 1934
The LR(MP)A 1934 continues the deceased’s existing causes of action at the time of death for the benefit of his or her estate. Essentially, the estate claims as though there had been no death (although claims for defamation are specifically excluded).
The Fatal Accidents Act 1976 (FAA 1976)
The FAA 1976 provides for claims to be made by the relatives and dependants of the deceased in their own right. This will include losses arising after the date of death. The beneficiaries of the estate are often also dependants but that is not necessarily the case.
Both acts allow for the recovery of funeral expenses (although they will not be awarded twice as to give double recovery).
Most commonly, claims under both acts are joined in the same action.
Human Rights Act 1998
A third possibility is a claim under the Human Rights Act 1998 where the claim is against a public authority for breach of the duty to protect the right to life. That more unusual claim is not considered here.
Who May Claim Under The LR(MP)A 1934
- Administrators (where there is not will)
- Beneficiaries of the estate
Under the LR(MP)A 1934, the claim may be made by executors (where there is a will) or administrators (where the deceased died without a will) as representatives of the estate and for the benefit of the estate. The claim may also be brought directly by the beneficiaries of the estate, whether identified under the will or under rules on intestacy.
Who May Claim Under The FAA 1976
- Executors of administrators
- Representatives of the estate (six months after death)
- Persons entitled to a bereavement award
- Eligible dependants
Under the FAA 1976, the action is brought for the benefit of the dependants of the deceased and of those entitled to a bereavement award. It is brought by and in the name of the executor or administrator of the deceased.
If there is no executor or administrator of the deceased, or no action is brought within six months after the death by and in the name of an executor or administrator, the action may be brought instead by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it. Only one action can be brought in respect of the same subject matter.
So, in short, representatives of the estate can bring the claim but only after 6 months from the date of death; it can also be brought by persons entitled to a bereavement award or by eligible dependants.
The identity of the individuals who can benefit from a bereavement award and the much longer list of those who may claim for dependency are considered below.
What Can Be Claimed by the Estate Under The LR(MP)A 1934
Under the LR(MP)A 1934 the following heads of loss may be claimed:
General damages for Pain, Suffering and Loss of Amenity.
The claim is for loss from the date of injury up to the date of death.
In fatal injury cases, the length of time suffering and understanding by the deceased of the impending death will be particularly important factors.
Again, this claim is for losses from the date of injury up to the date of death. It includes, for example, damage to a vehicle or clothing, loss of past earnings, and care and services paid for or rendered gratuitously by others before the date of death.
A claim for reasonable funeral expenses paid for by the estate is specifically permitted even though it would not ordinarily be a loss suffered by the deceased. Funeral expenses will not include the cost of mourning.
What Can Be Claimed By The Relatives and Dependants Under The FAA 1976
To bring a claim under the FAA 1976, it must have been possible for the deceased to claim in respect of the wrongful act, had the deceased not died. For example, if limitation rules would have prevented a claim by the deceased they will prevent a claim under the FAA 1976.
It must also be that the death was caused by the defendant’s wrongful behaviour. So if serious injury was caused as might lead to death but meanwhile death is in fact caused by an unrelated cause such as an unconnected heart attack or suicide unrelated to the accident and injury, there is no claim under the FAA 1976.
Subject to those points just made, there are three heads of loss that may be claimed:
This is a fixed sum, presently set at £12,890 for deaths occurring after 01 April 2013.
It is payable for the benefit of very limited categories:
- a) to the wife or husband or civil partner of the deceased; or
- b) in respect of a deceased unmarried child under 18, between the parents (if legitimate) or to the mother (if an illegitimate child).
The amount of this claim needs to be calculated carefully according to the facts of each particular case. It is often the largest head of loss. It represents the loss to those left behind who otherwise would have relied on the deceased’s income or on the deceased’s provision of services (e.g. car, home chores, DIY and gardening etc.).
The categories of those eligible to benefit from a claim are much wider than for bereavement. In short, it is spouses and civil partners (including ex-spouses and partners and those who lived as such for 2 years before death), parents, children or other descendants, brothers, sisters, aunts and uncles. In-laws and stepchildren may also be treated as coming within these categories.
Although ex-spouses and partners are included, irrespective of whether there was any ongoing acrimony, individuals who may have been very close and dependant upon the deceased such as lifelong friends are not included in the categories.
The full list, as set out in section 1(3) to (5) of the Act is as follows:
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;
(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.
(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.
(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 with the deceased has been annulled as well as a person whose civil partnership with the deceased has been dissolved.
(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.”
There may be a factual issue as to whether someone is a dependant or not, such as whether that person lived with the deceased for 2 years before death as husband, wife or civil partner. This issue may have to be determined early on in a claim, in particular because the damages for dependency are awarded between the dependants proportionate to their loss and the right to make a claim would have an impact upon how any award is apportioned.
As regards valuing the loss of dependency, the court will seek to assess the deceased’s likely income but for the death and then how much would have been spent on him or herself and how much on the dependants. Similarly, the court will seek to assess the financial worth of the services that would have been provided but for the death. The age of the deceased and life expectancies of the deceased and the dependants will all be relevant factors among many others in making these assessments.
It is worth noting that there are exceptions to the usual rule that, if compensating for loss, a claimant must give credit for any benefits that have been received and which otherwise cause double recovery. In particular, the Act provides that benefits which have accrued or may accrue to any person from the estate or otherwise as a result of his death shall be disregarded. This may include disregarding items that clearly flow directly from the event of death such as life insurance payments, inheritance, and widow’s pension. Similarly, the Act specifically disregards the re-marriage of a widow or her prospects of re-marriage.
Finally, if the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those reasonable expenses. As above, if the estate incurred them, the estate is the correct claimant rather than the dependants.