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ROGER COOPER

STEPHEN FRIDAY

P A R K L A N E P L O W D E N

L E E D S | N E W C A S T L E

Fatal Accidents Act claimsthe oddities all too likely to arise

A quirk of history

At common law though claims for injury have a long history, claims for death never were allowed and it was only because

That the first statute was passed in 1846

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Some chilling statistics

2012•1754 deaths on the road

•420 pedestrians•328 motor cycle users•118 cyclists•280 drink related

•148 employment fatal accidents•39 construction•29 agriculture

2010•11,438 accidental deaths•435 killed by complications of medical care

The nature of the cause of action

The deceased must have been injured by the fault of the defendant

He must have died in consequence of such injury

At the time he died he had a right to recover damages and

The beneficiaries have suffered pecuniary loss from the death.

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Classes of dependants

Wife/husband , former wife/husband

Civil partner, former civil partner

Cohabitant In same household as deceased immediately before death;

At least 2 years

During the whole of that period as husband and wife.

Parent or other ascendant

Person treated by deceased as parent.

Child of the deceased or other descendant

Yet more dependants

Person, not a child of deceased, who in relation to a marriage of the deceased, was treated as a child of that marriage

Ditto re civil partnership

Any person who is, or is the issue of a sibling, uncle or aunt of the deceased.

Step children included.

Half siblings included.

Illegitimate treated as legitimate.

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CO-HABITANTS

2 years in same household.

Swift v Sec. State for Justice 2 year qualification justified as proportionate means of pursing

a legitimate aim

Kotke v Saffarini 2 years in same household question of fact

Pounder v London Underground Brief periods of separation do not preclude qualification.

Marriage - does it matter?

Yes• as to multiplier• as to bereavement damages

• complex family relationships• potential for conflict with other dependants

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• Surprising there are not more cases of conflict of interest

•See•Pounder v London Underground

•Remembering only one claim can be brought- subject to ruling in Cachia v Faluyi

And so.....

BEREAVEMENT AWARDS

£12,980 for deaths from 1.4.2013.

Not for co-habitants; only for:

Wife, husband or civil partner of deceased

Where deceased was a minor who had never married, his parents if legitimate or his mother if illegitimate.

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The simplest of claims

A happily married 40 yr. old father of two young children -10 and 8Earning £40,000p.a. net at date of deathCompany car / fringe benefitsSlightly younger wife at homeChildren state educatedDies instantly

And so

• Fix multipliers as at death (Cookson)• Multiplicands (income)

• Conventional 75% with children at home (Harris)• Conventional 66.6% when children leave home

•Remember value of fringe benefits•Remember post retirement dependency•Father’s/Husband’s services?•Add funeral expenses•Add bereavement damages •Apportion

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But be prepared to be flexible

As to use of percentages for the very high or very low earner See Owen v Martin

As to duration of dependency Life expectancy

Marriage stability

Children at home

The figures

Trial 3 years post death

Income would by then have risen to £44,000 net

Retirement at 65 with employment pension of £20,000 + state pension of £10,000

Car and benefits worth £6,000 p.a.

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Bingo

Bereavement £12,980 (+ interest)

Funeral expenses £5,000 (+ interest)

Life time multiplier (his), say 26.5

Multiplier from death to 65, say 16.5

Multiplier to youngest child age 21, say 11

3 years to death £46,000 x 75% £103,500 (+ interest)

8 years of 75% 0f £50,000 £300,000

5.5 years at 66.6% 0f £50,000 £183,500

10 years at 66.6% of £30,000 £200,000

SAY £805,000 (Really?)

(NB without services claims)

Apportionment- pragmatic

There is a tradition of leaving bulk to widow, but What if she dies/remarries –are children catered for?

Could an arithmetical calculation be done?

And in this case.....????

See Goodburn v Thomas

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Lets make it a little more complicated

Might affect the multiplicand and indeed the multiplier

Might affect the multiplier see D v Donald

Factors to reduce the dependency

Botched DIY “showed marriage was doomed”

Husband's adultery cuts widow's claim S. D. 30, said she had "worshipped the ground walked on" by her

husband, Jason, and was shocked to discover his double life. E. S. , who survived when the bike crashed in Hull in 1996, also had no idea there was a wife and considered herself his fiancée, the court was told

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A long and lingering death and a memorable funeral

An award for PSLA may be substantialSee Murray v Shuter

In St George v Turner £50,000 award for funeral

Back to Mr & Mrs Happy Family

She was working part timeBut paying for child careShe decides to stay at home and give the children all her attentionShe is assisted by receipt of

•A large occupational widow’s pension•A large life insurance payout•Payments made under a mortgage protection policy

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Section 4 - a very wide provision

Pre 1976 all collateral benefits potentially relevant

“ In assessing damages in respect of a person’s death 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”

Arnup v White 2008 –the process now only involves one stage –section 3 quantification

Section 4

And none of Mrs Happy’s benefits are deductable

All flow from the death

Are any such collateral benefits ever to be set off? See Arnup v White

Double recovery inherent in the statute: McIntyre v Harland & Woolf

Thus only the unmeritorious claim of Mrs Popow in Auty v NCB remains

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What of her income (or lack of)?

Was £15,000• The conventional approach Coward v Comex Houlder

Diving

• £46,000 + £15,000 x 75% less £15,000 = £30,750 p.a. (Why?)

• £50,000 + £15,000 x 66.6% less £15,000 = £28,333 (p.a)

• What if she doesn’t return to work?

• What if she takes the chance to get a better paid job

• Welsh Ambulance Services NHS Trust v Williams

• What of the £7,000 child care?

And after an appropriate period of grief…

Will it affect my claim?

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Is the law sexist?

Always thought widower’s prospects of remarriage relevant?

But see Topp v London Country Bus

Potential breach of Article 14?

A change of victim

•The wife dies•She wasn’t in paid employment•But she was the perfect wife and mother

Don’t forget Regan v Williamson

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Father can’t cope

See Manning v Kings College

Grandparents –the cheap alternative

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And after a suitable period of grief

•A new friend moves in•Remarriage beckons•She’s almost as good a cook•And financially independent

Topp v London Country BusStanley v SaddiqueL v Barry May Haulage

They were both in the car!

He was the passenger not wearing a seat belt

Statute provides

She was the driver who went through red lights

See Dodds v Dodds

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A tragedy - orphaned so young

Consider:•Hay v Hughes

•Kassam v Kampala Aerated Water

•Watson v Willmott

The deceased was not only a marriage partner but a business partner /employee

After the death

•The business fails

•Wolfe v Del’Innocenti

•The business thrives

•Welsh Ambulance v Williams

Back to the Happy Family

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A need for careful analysis

Was the dependency a family one or purely business?

Or was this a “notional” salary that would not continue?

Burgess v FlorenceNightingale Hospital

Malyon v Plummer

The richer the couple the more complicated

Steer clear of

Wood v Bentall Simplex

Cape Distributionv O’Loughlin

Davies v Whiteway Ciders

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And also

The carer

Can be complicated whichever one dies –disabled / able bodied

Riches ahead?

Promotion on the horizon?

A hoped for inheritance?

A personal injury award awaited? Singh v Atkin

Or looming unemployment / a life of crime?Burns v EdmanHunter v Butler

And thereafter struggling on a state pension?

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The Human Rights Act

•Worth thinking about alternative claims if a public body is involved and if there are problems as to statutory definitions –dependants /bereavement•But see

•Swift v Secretary of State for Justice 2013

Any Questions