Fatal Accidents Act claims - Parklane Plowden

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At the time he died he had a right to recover damages and ... Not for co-habitants; only for: ○ Wife, husband or civil
Fatal Accidents Act claims the oddities all too likely to arise

ROGER COOPER STEPHEN FRIDAY

PARKLANE PLOWDEN LEEDS | NEWCASTLE

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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And so..... • 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

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 8 Earning £40,000p.a. net at date of death Company car / fringe benefits Slightly younger wife at home Children state educated Dies 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  Funeral expenses

£12,980 (+ interest) £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%  8 years of 75% 0f £50,000  5.5 years at 66.6% 0f £50,000  10 years at 66.6% of £30,000

£103,500 (+ interest) £300,000 £183,500 £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?

See Goodburn v Thomas And in this case.....????

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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 substantial See Murray v Shuter

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

Back to Mr & Mrs Happy Family She was working part time But paying for child care She decides to stay at home and give the children all her attention She 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 Bus Stanley v Saddique L 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

Back to the Happy Family 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

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A need for careful analysis

Malyon v Plummer Burgess v Florence Nightingale Hospital

Was the dependency a family one or purely business?

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

The richer the couple the more complicated  Steer clear of Davies v Whiteway Ciders Wood v Bentall Simplex

Cape Distribution v O’Loughlin

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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 Edman Hunter 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

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