#19867 - Wrongful Death Claims - Tort Law

Wrongful Death Claims

Fatal Accidents Act1976 allows a ‘dependant’ of the dead victim to sue for various damages. It is the most important exception to the rule that only the victim of a tort may claim for losses. Dependants can sue for:

• Loss of support

• Bereavement (if the dependant and victim were married or the victim was the dependant’s child)

• Funeral expenses (if dependant paid for it)

General Conditions for any Wrongful Death Claim

1. D, or someone liable or D’s actions, committed a tort in relation to the dead victim

2. The tort caused the death and death is a non-remote consequence of the tort

3. Had the dead victim not died, they would have been able to sue D¹

Who’s a ‘dependant’? s.1(3) FAA

• V’s parents, grandparents, children, nieces/nephews, cousins

• Anyone V treated as a parent or child

• V’s spouse/civil partner, current (at the time of death) or former

• Anyone living with V as V’s spouse when V died and had been for at least 2 years prior

Bringing a FAA claim: the details

You have to show had V not died, they would have been able to sue D in relation to that tort. For example, if D’s tort caused V to die instantly, the question is had V been injured but not died as a result of D’s tort, would they have been able to sue D. This means if D would have had a defence, like illegality for personal injury, this requirement is not satisfied and an FAA claim will fail.

What if V takes longer to die after D’s tort?

If V dies as a result of D’s tort but it takes days or years, the question now is had V lived a little longer, would they have been able to sue D. This will not be the case if D has already paid compensation or a third party has done so (but only if it has the effect that V get can’t get compensation directly from D because of the third party’s payment).

Types of Damages: the details

1 – Loss of Support

Requirements

1. had V not died, there would have been a reasonable prospect a dependant would’ve obtained some financial benefit in the future

2. and the dependant would have gotten that financial benefit because they were a dependant, and not because of some other reason

Case Examples

Franklin v South Eastern Railway Company – C’s son killed because of D’s tort. C was getting old and his son was working, earning income. Although C’s son wasn’t supporting C financially at the time, there was a reasonable prospect that as C got older and more vulnerable, C’s son would have decided to financially support him. Loss of support claim succeeded.

Barnett v Cohen – C’s 4 y/o son killed because of D’s tort. C claimed had the son grown up, he would’ve started working and financially assisted C. The claim failed because (i) the son was too young to predict what would’ve happened when he grew up and (b) C was very wealthy with a stable income, so it was unlikely the son would have decided to provide financial support.

Davies v Taylor – C’s husband killed because of D’s tort. The couple were in the process of divorce. Claim failed because V was unlikely to spend money on an ex-partner. If they reconciled it would be different, but C couldn’t show there was a reasonable prospect of this happening.

Berry v Humm – C’s wife killed because of D’s tort. C’s wife used to stay home and do the chores while C worked at the docks. Had C’s wife not been killed, there was every reason to assume she would have continued to do so. This was enough of a financial benefit for the courts, and a loss of support claim succeeded.

Burgess v Florence Nightingale Hospital for Gentlewomen – C’s wife killed because of D’s tort. The husband and wife were professional dancing partners. There was a reasonable prospect they would have earned prize money which could no longer happen because C didn’t have a dancing partner. But the benefit for C – the prize money – would not have happened because C’s wife was a dependant. In other words, the financial benefit was not by virtue of C’s wife being C’s wife, but rather C’s wife being C’s dancing partner. See requirement b. above.

Limits on Loss of Support Damages

Can’t be the proceeds of crime – Burns v Edman. You also can’t sue if V’s death didn’t actually prevent the financial benefit being conferred on C. For example, in Auty v National Coal Board, C’s husband was killed because of D’s tort. C argued that had V survived the tort, he would have died anyway before ten years was up and she would be entitled to a widow’s pension. But C already had access to a widow’s pension from her husband’s death, so the loss of support claim failed.

There’s also the Williams principle. In Welsh Ambulance Service NHS Trust v Williams, there were two claimants and one dead victim. V was a husband to one C and father to another. V died because of D’s tort. V was a businessman who operated a substantial, and very successful, family business both Cs benefitted financially. After V’s death, his children managed to keep the business going. D argued this meant no loss of support had occurred in fact. Court of Appeal rejected this argument – the loss was V’s services. The compensation was the cost of replacing V’s services in running the business.

The Williams principle from this is that the value of dependency is fixed at the time of V’s death, not affected by what afterwards might have happened. This might explain Hay v...