Remedies for personal injury and death claims - Damages in cases of death

Learning Outcomes

This article outlines the principles governing the assessment and award of damages following a person's death resulting from a tortious act. You will learn about the distinct claims that can arise for the benefit of the deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934 and for the benefit of dependants under the Fatal Accidents Act 1976. Understanding these frameworks, including the types of losses recoverable and the calculation methods, is necessary for advising clients and succeeding in the SQE1 assessments.

SQE1 Syllabus

For SQE1, you are required to understand the legal framework for awarding damages in cases where a tort results in death. This involves applying the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. You will need to identify the types of claims available, who can bring them, and the principles for assessing recoverable losses.

As you work through this article, focus your revision on:

• Distinguishing between claims brought for the estate and claims brought for dependants.
• Identifying the types of damages recoverable under the Law Reform (Miscellaneous Provisions) Act 1934, including the 'lost years' principle.
• Understanding the requirements for a dependency claim under the Fatal Accidents Act 1976, including who qualifies as a dependant.
• Knowing the nature and limitations of the statutory bereavement award.
• The basic principles for calculating loss of dependency.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which Act allows a claim to continue for the benefit of the deceased's estate after their death?
   1. Fatal Accidents Act 1976
   2. Law Reform (Contributory Negligence) Act 1945
   3. Law Reform (Miscellaneous Provisions) Act 1934
   4. Damages Act 1996
2. Under the Fatal Accidents Act 1976, which of the following can typically claim bereavement damages? (Select all that apply)
   1. The deceased's spouse or civil partner
   2. The deceased's adult children
   3. The parents of a deceased minor child (if unmarried)
   4. The deceased's cohabiting partner of less than two years
3. Which principle allows the estate to claim for the net earnings the deceased would have made during the period they would have lived but for the fatal injury?
   1. Loss of amenity
   2. Bereavement award
   3. Lost years principle
   4. Loss of consortium

Introduction

When a person dies as a result of a tort, such as negligence, the common law rule that a personal cause of action died with the person (actio personalis moritur cum persona) has been significantly modified by statute. Two key pieces of legislation govern the award of damages in these circumstances: the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A 1934) and the Fatal Accidents Act 1976 (FAA 1976). These Acts provide separate but often overlapping avenues for recovering compensation, one for the benefit of the deceased's estate and the other for the benefit of the deceased's dependants. Understanding the scope and application of each Act is essential for assessing remedies in fatal accident claims.

Claims for the Estate (LR(MP)A 1934)

The LR(MP)A 1934 provides that most causes of action vested in the deceased at the time of death survive for the benefit of their estate. This means the personal representatives (executors or administrators) can bring or continue a claim that the deceased could have brought had they lived.

Key Term: Estate Claim
A claim brought by the personal representatives of the deceased under the LR(MP)A 1934 for losses suffered by the deceased up to the moment of death, and potentially for loss of earnings during the 'lost years'.

Scope of Recovery under LR(MP)A 1934

The damages recoverable by the estate are limited to the losses suffered by the deceased before death. These typically include:

• Pain, Suffering, and Loss of Amenity (PSLA): Compensation for the deceased's conscious pain and suffering and loss of enjoyment of life experienced between the injury and death. If death was instantaneous, no damages are awarded under this head.
• Expenses Incurred: Any reasonable expenses incurred by the deceased between injury and death, such as medical costs or damage to property.
• Loss of Earnings: Net earnings lost by the deceased between the date of injury and the date of death.

The 'Lost Years' Claim

A significant head of damage recoverable for the estate under the LR(MP)A 1934 is the 'lost years' claim, established in Pickett v British Rail Engineering Ltd [1980] AC 136. This represents the net loss of earnings the deceased would have accrued during the period they would have lived and worked but for the fatal injury caused by the defendant's tort.

Key Term: Lost Years
The period between the date of expected death due to the tort and the date the deceased would otherwise have been expected to live and work. The estate can claim for net earnings lost during this period.

When calculating damages for the lost years, a deduction is made for the amount the deceased would likely have spent on their own living expenses during that period. This deduction is conventionally set at 25% for a deceased person with dependants and 33% for one without, though this can be varied based on evidence.

Exceptions

Certain claims do not survive death under the LR(MP)A 1934, notably claims for defamation and claims for bereavement damages under the FAA 1976.

Worked Example 1.1

Ahmed, aged 40, was severely injured in a road accident caused by Ben's negligence. Ahmed survived in hospital for two weeks before dying from his injuries. He endured significant pain during this time. He earned £40,000 net per year and would likely have worked until age 65. His personal living expenses were estimated at 30% of his net income. What claims might Ahmed's estate bring under the LR(MP)A 1934?

Answer: Ahmed's estate could claim under the LR(MP)A 1934 for:

1. PSLA: For the pain and suffering Ahmed experienced during the two weeks before his death.
2. Loss of Earnings (pre-death): Two weeks' net earnings.
3. Lost Years: Damages for the net earnings Ahmed would have earned between age 40 and 65 (25 years), less the 30% he would have spent on himself. The calculation would involve applying a multiplier to the net annual loss (£40,000 * 70% = £28,000).

Claims for Dependants (FAA 1976)

The FAA 1976 creates a separate cause of action for the benefit of the dependants of a person whose death was caused by the wrongful act, neglect, or default of another. This claim compensates dependants for the losses they have suffered as a direct result of the death.

Who is a Dependant?

Section 1(3) FAA 1976 defines the specific categories of persons who qualify as dependants. This includes:

• The spouse or civil partner of the deceased (and former spouse/civil partner).
• A person living with the deceased as husband/wife/civil partner for at least two years immediately before the death.
• Children or other descendants of the deceased (including step-children treated as children of the family).
• Parents or other ascendants of the deceased (including step-parents).
• Certain other relatives such as siblings, aunts, uncles, and their issue.

Key Term: Dependant (FAA 1976)
A person falling within the specific categories defined in s 1(3) of the Fatal Accidents Act 1976 who was financially dependent on the deceased or had a reasonable expectation of financial benefit.

Types of Claims under FAA 1976

1. Dependency Claim: This is the main head of claim, compensating eligible dependants for the loss of financial support or services they would have received from the deceased had they lived.
2. Bereavement Award: A statutory fixed sum awarded for grief and sorrow.
3. Funeral Expenses: Reimbursement for reasonable funeral costs if paid by the dependants (if paid by the estate, they are claimed under LR(MP)A 1934).

Dependency Claim Calculation

The primary claim under the FAA 1976 is for loss of financial dependency. This is calculated using the multiplicand/multiplier method, similar to future loss of earnings calculations for living claimants.

Key Term: Dependency Claim
A claim under the FAA 1976 by eligible dependants for the financial support or value of services lost as a result of the deceased's death.

• Multiplicand: Represents the annual value of the dependency (net income the deceased would have contributed, plus the value of services like childcare or DIY). The deceased's own living expenses are deducted.
• Multiplier: Represents the likely period of dependency, adjusted using actuarial tables (Ogden Tables) to account for contingencies and accelerated receipt (receiving the money as a lump sum). The calculation date for the multiplier is the date of trial, not the date of death (Knauer v Ministry of Justice [2016] UKSC 9).

Factors such as the dependant's age and the likely duration of the dependency (e.g., until a child finishes education) are considered when determining the multiplier. Importantly, the remarriage prospects of a surviving spouse or civil partner are disregarded by statute (s 3(3) FAA 1976). Similarly, benefits accruing to a dependant from the deceased's estate (e.g., inheritance) are not deducted (s 4 FAA 1976).

Loss of Services

Dependants can also claim for the loss of services previously provided by the deceased, such as childcare, housekeeping, gardening, or DIY. The value is typically based on the commercial cost of replacing those services.

Bereavement Award

Section 1A FAA 1976 provides for a fixed sum, currently £15,120, awarded as damages for bereavement. This is not compensation for financial loss but acknowledges grief and suffering.

Key Term: Bereavement Award
A statutory fixed sum payable under s 1A FAA 1976 to a limited class of relatives (spouse/civil partner, parents of unmarried minor) for grief and suffering caused by the death.

• Eligibility: The award is strictly limited to:
  • The spouse or civil partner of the deceased.
  • The cohabiting partner (living as spouse/civil partner for at least two years prior to death - introduced by the Fatal Accidents Act 1976 (Remedial) Order 2020).
  • The parents of a deceased minor child (if the child was unmarried). If the parents were unmarried, only the mother is eligible unless the father meets certain criteria (e.g., parental responsibility).
• Single Award: Only one award is made per death. If both parents of a minor are eligible, the sum is divided equally between them. Adult children cannot claim this award for the death of a parent.

Funeral Expenses

Reasonable funeral expenses are recoverable under s 3(5) FAA 1976 if they have been incurred by the dependants making the claim.

Exam Warning

Remember that the LR(MP)A 1934 and FAA 1976 provide for distinct claims, although they often arise from the same death. Do not confuse the types of damages recoverable under each Act. Estate claims focus on the deceased's losses up to death (+ lost years), while FAA claims focus on the dependants' losses resulting from the death. A claim for bereavement damages falls only under the FAA 1976 and is strictly limited.

Worked Example 1.2

Chloe, aged 30, was killed instantly in a work accident due to her employer's negligence. She leaves behind her civil partner, Sarah, and her 5-year-old son, Leo. Chloe earned £35,000 net annually and spent 25% on herself. Sarah earns a minimal income. Leo was entirely dependent on Chloe. Funeral costs were £4,000, paid by Sarah.

What claims might arise under the FAA 1976?

Answer: Claims under the FAA 1976 could include:

1. Dependency Claim: Brought by Sarah and Leo. The multiplicand would be based on Chloe's net annual contribution (£35,000 * 75% = £26,250). Separate multipliers would be calculated for Sarah (likely based on Chloe's expected working life) and Leo (likely until he finishes education, e.g., age 18 or 21).
2. Bereavement Award: Sarah, as the civil partner, is entitled to the statutory award of £15,120. Leo cannot claim this.
3. Funeral Expenses: Sarah can claim the £4,000 she paid for the funeral.

Summary

Damages in death claims are primarily governed by two statutes:

Key Point Checklist

This article has covered the following key knowledge points:

• Claims following death caused by tort are primarily governed by the LR(MP)A 1934 and the FAA 1976.
• LR(MP)A 1934 allows the deceased's estate to pursue claims the deceased had before death, covering losses up to death (PSLA, expenses, lost earnings) and potentially 'lost years' earnings.
• FAA 1976 creates a separate claim for statutorily defined dependants for losses arising from the death.
• The main FAA claim is for loss of dependency (financial support and services), calculated using the multiplicand/multiplier method.
• A fixed statutory bereavement award is available under the FAA 1976 to a very limited class of relatives (spouse, civil partner, cohabitee, parents of an unmarried minor).
• Reasonable funeral expenses are recoverable by the party who paid them (estate under LR(MP)A or dependants under FAA).
• Damages calculations under FAA disregard remarriage prospects and benefits inherited from the estate.

Key Terms and Concepts

• Estate Claim
• Lost Years
• Dependant (FAA 1976)
• Dependency Claim
• Bereavement Award