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Tort | Negligence

Remedies: Death

Revision Note | Degree

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  • common law maxim: actio personalis moritur cum personae, tortious rights & liabilities of either party, extinguished on their death
  • now statutory provision to allow a cause of action to survive death of either claimant (C) or defendant (D)
  • will: person can set out wishes about distribution of their estate (land, money & other belongings), person who dies without will called intestate
  • executors: named persons task of administering will, according to deceased's wishes, in intestacy, administrators appointed (personal representatives)
  • beneficiaries: inherit as named persons in will or by satisfying rules of intestacy
  • dependants: persons who deceased used to provide for financially

Law Reform (Miscellaneous Provisions) Act 1934

  • Law Reform (Miscellaneous Provisions) Act 1934 (LRA 1934) altered common law position allowing actions on behalf of deceased C & against deceased D

    S1: Effect of death on certain causes of action
    • S1(1): tortious causes of action, except for defamation, survive D's death & C's death
    • S1(2): estate cannot recover S1(2)(a)(i): exemplary damages & S1(2)(a)(ii): damages for loss of income
    • S1(2)(c): money received or spent (except for funeral expenses) by the estate will not be taken into account
    • S1(4): creates cause of action if damage does not occur until the same time as D's death or even after his death
  • S1(4) LRA 1934, covers actions which do not exist as a legal cause of action unless C can show he suffered damage (as in Negligence), necessary as under S1(1) cause of action must exist at time of D's death


  • recoverable damages: only arise during C's survival period, if C dies instantaneously: funeral expenses paid for by estate & property damaged in accident
  • if action is brought by estate damages awarded will be distributed to beneficiaries under will or rules of intestacy

The Fatal Accidents Act 1976

  • no common law cause of action for dependants in relation to death of another person
    • .. the death of a human being cannot be complained of as an injury...
  • Fatal Accidents Act 1846 gave limited dependants, without means to support themselves, right to claim for compensation for loss of support, categories now extended
    • replaced the Fatal Accidents Act 1846
    • S1(1): new cause of action for dependants based on death of deceased not tort itself, on condition if deceased had survived he would have been able to bring claim against D
    • S1(2): action for the benefit of dependants of the deceased
    • S1(3):'dependant' means -
      S1(3)(a): wife or husband or former wife or husband of deceased
      S1(3)(aa): civil partner or former civil partner of deceased
      S1(3)(b): co-habitee living with deceased for at least 2 yrs immediately before date of death
      S1(3)(c): parent or any ascendant of deceased
      S1(3)(d): person who was treated by deceased as his parent
      S1(3)(e): child or any descendant of deceased
      S1(3)(f): step children by marriage
      S1(3)(ff): step children by civil partnership
      S1(3)(g): siblings, uncle or aunt or their issue

Assessment of dependency award

  • statutory guidance on how dependency of C should be valued
    • S3(1): In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively
  • damages aim: compensate financial loss of deceased to dependants (a future loss), calculated by multiplier & multiplicand formula
  • multiplicand: net annual loss to C (for living C), therefore multiplicand based on net annual loss to dependant
  • dependent spouse or children: based on deceased's net annual wage, deductions: money deceased would have spent on themselves: 25% (married with dependent children) & 33% (no dependent children), included: any contributions deceased made (employment perks & household jobs)
  • multiplier: period of loss of income (for living C), therefore multiplier period of expected dependency
  • children: expected remain dependent until 18, if full time education or disabled period of loss may be longer, spouses: expected remain dependent until retirement age, period of loss may be shorter if either ill
  • multiplier then converted, using Ogden tables (reflect advantage of lump sum payment)
  • formula: multiplicand X multiplier = damages
  • if deceased non wage earner: assess value of physical services rendered by deceased (household jobs or child care)
  • child Cs also claim for loving care provided by deceased parent
    Mehmet v Perry [1977] 2 All ER 529
    • mother killed: non wage earner, stayed at home to look after children
    • father gave up his job to look after children
    • what damages could be awarded?
    • father could recover for his loss of earnings & children could recover for loss of mother's daily care, instruction & affection
    Cresswell v Eaton [1991] 1 All ER 484
    • single full-time working mother of 3 young children killed
    • children went to live with aunt, who gave up her full-time employment to look after them
    • what damages could be awarded?
    • award based upon aunt's loss of earnings
    • mother killed
    • orphaned 3 yr old child brought up by aunt, who was not working as already looking after her own children
    • what damages could be awarded?
    • Court of Appeal: multiplicand should be cost of employing a nanny & multiplier should be reduced (reflect lessening care requirements as child got older
  • details of award & distribution set out in S3 FAA 1976

    S3: Assessment of damages
    • S3(1): single amount of damages awarded & then apportioned amongst dependants
    • S3(2): after deducting costs recovered damages divided according to court's directions
    • S3(3): no account taken of widow's re-marriage or marriage prospects
    • S3(4): co-habitee (dependant under S1(3)(b)) may have award reduced to reflect lack of enforceable right for financial support
    • S3(5) : damages for funeral expenses may be claimed

    S4: Assessment of damages: disregard of benefits
    • any benefits received by estate as result of death will be disregarded for purposes of damages

Bereavement award

Commencing a claim

  • rules are set out in S2 FAA 1976 about commencing claim

    S2: Persons entitled to bring the action
    • S2(1): action may be brought by executor or administrator
    • S2(2) beneficiaries may bring action if (a): no executor or administrator, or (b): action not brought within 6 months of death by executor or administrator
    • S2(3): only one action permitted
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