Compensation claims: the law on damages and death

Posted by Patricia Wakeford on

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Often, the amount of money recovered is less than damages received for non-fatal personal injuries, which has led to wide criticism and negative commentary. This article outlines the difference between compensation claims for non-fatal personal injuries and fatal accident claims, the main ways to claim compensation as a result of a fatal accident and the policy reasoning behind those key legislative provisions.

Compensation claims for non-fatal personal injury

Under civil law, the aim of the award of damages for non-fatal personal injuries is usually to put the injured claimant in the same financial position as he or she would have been had it not been for the injury. Such compensation awards will be for a lump sum or periodical payments, or both, and is intended to compensate for matters such as loss of future income, loss of amenity and pain and suffering. One of the key principles governing compensation for personal injury is that, where possible, the claimant is entitled to full compensation, i.e. 100% of the value of his loss and expenses as well as pain, suffering and loss of amenity. Damages are calculated as at the date of trial.

Compensation claims for fatal accidents

Although the general principles on the assessment of damages in personal injury claims apply to claims arising out of a person's death, there are some differences. For instance, unlike claims for compensation brought by a living claimant, fatal accident compensation claims are calculated at the date of death. The reason is that the person's death is considered to be the only certain event. Everything that might have happened after that date remains uncertain.

The law as it currently stands provides two possible ways to make a claim for a fatal accident resulting from another's negligence. The first action is for the deceased's personal injuries and is brought by the deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934. The second action is available to the deceased's dependants under the Fatal Accidents Act 1976 and is intended to compensate the dependants for the extent to which they were dependant on the deceased.

1. Claims for the benefit of the deceased's estate: Law Reform (Miscellaneous Provisions) Act 1934

In brief, the amount of damages awarded under this Act is based on the losses which the deceased would have been able to claim based on his injuries the instant before he died. Any damages recovered pass to the deceased's estate and to his beneficiaries. In essence, the executors or administrators for the beneficiaries of the deceased's estate 'step into the shoes' of the deceased and will be able to claim for the losses that the deceased could have claimed for had he lived. This includes, but is not limited to, damages for pain, suffering and loss of amenity, the deceased's pre-death loss of earnings, loss of expectation of future capital, and medical expenses. It also includes an award for funeral expenses providing they are reasonable and incurred by the estate.

2. Claims for the benefit of the deceased's dependants: Fatal Accidents Act 1976

Dependency claims

The deceased's dependants are entitled to make a separate claim under the Fatal Accidents Act 1976. Damages under this Act are paid by the person or organisation that caused the death. In order to have a cause of action under the Act, the claimant must show that

(1) the deceased person was injured by the wrongful act of the defendant

(2) he died in consequence of such injury

(3) at the time he died he had a right to recover damages

(4) the dependants have suffered actual financial loss as a result of his death.

The cause of action is limited to the deceased's dependants. Dependant is defined in section 1 of the Act and includes:

- the wife or husband or former wife or husband (or the civil partner or former civil partner) of the deceased who had been 
- living with the deceased in the same household for at least two years before the date of the death;
- any parent or other ascendant of the deceased;
- any person who was treated by the deceased as his parent;
- any child or other descendant of the deceased;
- any person who (not being a child of the deceased) was treated by the deceased as a child to the family in relation to the deceased's marriage or civil partnership;
- any person who is a brother, sister, uncle or aunt of the deceased.

It is important to note that people who have been living with the deceased for less than two years are excluded from the list of dependants. This was challenged in the case of Laurie Swift v Secretary of State For Justice [2012] EWHC 2000 (QB), where Ms Swift sought a declaration that section 1(3)(b) of the Act requiring that a cohabitee had lived with a partner for two years or more prior to the partner's death was incompatible with the right to family life under Article 8 of the ECHR. Her claim was dismissed. The court held that the objective was to ensure that the scope of the Act was limited to such relationships as involved a sufficient degree of permanence or dependence to justify the survivor's right to claim damage against the tortfeasor. At the time of writing, the case has an outstanding appeal to the Court of Appeal.

A child who is not a child of the deceased but was treated by the deceased as family would also be unable to claim damages under this Act, unless they were adopted by the deceased or they were treated as children of the deceased in relation to a marriage/civil partnership to which the deceased was a party.

To be able to claim, the dependants must prove that they reasonably expected to receive financial benefit arising from the dependent family relationship with the deceased, had the deceased not died. The dependence could be either financial or in terms of services provided (e.g. if housework or baby sitting services became required). As any claim is to be assessed on the basis of actual loss suffered, it is unusual for dependants to have a large damages claim. This is exemplified in the recent case of Drake v Foster Wheeler Ltd [2010] EWHC 2004, where taking into account the actual financial payments made by the deceased to his children, grandchildren and great-grandchildren, as well as the casual nature of such payments, the court found it appropriate to order an award of £14,604 in total for the benefit of the dependants.

Bereavement damages and funeral expenses

In addition to a claim for the financial loss suffered by dependants, the action under this Act may also include bereavement damages and damages in respect of any funeral expenses incurred. Whilst funeral expenses have not been defined in the Act, it has been held that they do not include expenses of mourning or other ceremonial expenses, incurred out of respect of the dead.
Bereavement damages are awarded without the need for the claimant to prove any actual loss and are intended to compensate for the mental suffering undergone by the dependants as a result of the death, and/or for the pain and suffering of the deceased prior to death. They are a fixed sum, currently £12,980. This was increased in 2013 from £11,800. The list of people who can claim the bereavement award is limited to the wife, husband or civil partner of the deceased. If the deceased was a minor who was never married or a civil partner, the award is for the benefit of his or her parent, if the child was "legitimate", and of his mother, if the child was "illegitimate". Notably, a child who loses his or her parent(s) is excluded from this list.

Policy reasoning behind calculating damages in fatal accidents claims

The provisions of the Fatal Accidents Act have been widely criticised as giving scope for unjust results and undercompensating people who deserve to receive an award for the loss of their loved one. Amongst the criticised features of the Act are the respective lists defining dependants and those who would be entitled to a bereavement award. The amount of the bereavement award has also been criticised as being unjustly low.

In 1999, the Law Commission made a number of proposals to reform the Fatal Accidents Act. The Commission recommended, amongst other things, that the list of people entitled to a dependency claim be extended to cover anyone who was being wholly or partly maintained by the deceased immediately before the death or anyone who would have been so maintained in the future but for the death. The Government consulted on this proposal and accepted the first part of the Commission's recommendation, that a new category be added to the fixed list to cover those "wholly or partly maintained by the deceased immediately before the death". This was implemented within the Civil Law Reform Bill 2009. Unfortunately, the Government decided in 2011 not to proceed with the Bill. The law therefore remains unchanged.

Another aspect criticised by the Commission was the amount of the bereavement award currently fixed in statute as well as the limited list of people eligible for the award. In relation to the latter, the Commission proposed that the eligibility for bereavement damages be extended to cover co-habitees of the deceased of more than two years. The Government endorsed the proposal for extending eligibility. Amendments to the Fatal Accidents Act were included within the Civil Law Reform Bill and were intended to extend eligibility for bereavement damages to people who had been living with the deceased as the deceased’s husband or wife or civil partner for a period of at least 2 years ending with the date of the death, as well as children of the deceased who were aged under 18 at the date of the death. As noted above, the Bill was unfortunately not enacted and the law on this point remains unchanged.

In relation to the amount of the bereavement award, the Government noted in their consultation on the Civil Law Reform Bill, that it should not be considered in any way equivalent to the loss suffered. They pointed to the Parliamentary debate preceding the introduction of bereavement damages into the Fatal Accident Act, where it was acknowledged that it is impossible to quantify or provide adequate financial compensation representing the value society places on life. Bereavement damages could only therefore be a "token payment" acknowledging the dependants' grief and should not be regarded as reflecting the value of the deceased's life. Neither should they be considered as a punishment for the wrongful act of the person who caused the death. Amongst the Commission's proposal was adding an Explanatory Note to the Act to clarify what the purpose of bereavement damages is. At the time of writing, no such Explanatory Note has been included within the Act.

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About the Author

Patricia is a Senior Associate, in our Clinical Negligence team, and is also a qualified midwife with many years of experience working in the NHS.

Patricia Wakeford
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023 8085 7310

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