Tort: Fatal Accidents Liability

Liability in Case of Death

Death and Existing Actions

The Impact of Death on Active Causes of Action

If a claimant but dies because of the tort or is subsequently killed, his estate may still sue: Law Reform (Miscellaneous Provisions) Act 1934, s 1(1). The only exceptions are defamation and the bereavement action under the Fatal Accidents Act 1976, s 1A. In these cases the cause of action is extinguished by the claimant’s death.

Actions Under the Fatal Accidents Act 1976

Where the claimant is killed by a tort, two special causes of action arise. These are the dependency action (s 1) and the bereavement action (s 1A).

The Dependency Action (s.1)
Who is Eligible?

The Fatal Accidents Act 1976 creates a cause of action for the dependants of a person killed by a tort: s 1. Dependants are the deceased’s: 

  • Spouse, civil partner or former spouse or civil partner; 
  • Romantic cohabitees who have been living with the deceased for at least two years;
  • Parent (or anyone treated by the deceased as a parent) or ascendant;
  • Children, other descendants and those treated by the deceased as such as a result of any marriage;
  • Siblings, aunts, uncles, cousins, nephews and nieces.
  • In-laws, stepchildren and half-relatives who fall into any of the above categories.
Damages Under a Dependency Claim

Damages awarded in a fatal accidents claim are divided among all the dependants. This is done in proportion to the injury each has suffered as a result of the death: s 3(1). This includes any funeral expenses they have incurred: s 3(5). 

Dependants can only recover for their own losses, and not the losses of the deceased: Gray v Barr [1971] 2 QB 554. In addition, only pecuniary losses are recoverable, rather than emotional damages: Franklin v South Eastern Railway (1858) 3 H&N 211. ‘Pecuniary losses’ includes anything of economic value, however, such as the loss of caring services or financial support: Stanley v Saddique [1992] QB 1.

Benefits accruing to the dependants due to the death (such as from inheritance) are disregarded when calculating damages: s 4. The fact that any widow has remarried or has prospects of doing so is also ignored (s 3(3)).

The same is true for any ‘replacement services’ provided by those looking after a child after a parent has died (R v Criminal Injuries Compensation Board, ex parte K [1999] QB 1131) unless that person was already providing those caring services to the child prior to the parent’s death: Hayden v Hayden [1992] 1 WLR 986. 

Defences to a Dependency Claim

This claim is derivative of any claim the deceased would have had if they had survived. Therefore, if the defendant would have had a defence against the deceased, they also have it against the dependants. 

Damages may also be reduced for the contributory negligence of the deceased: s 5; as well as the contributory negligence of the dependant. However, the contributory negligence of one dependant will not reduce the damages awarded to other non-negligent dependants: Dodds v Dodds [1978] QB 543.  

The Bereavement Action (s.1A)

Spouses, civil partners, and the parents (or just the mother if the child is illegitimate) of minor children can claim damages for bereavement: Fatal Accidents Act 1976, s 1A. A successful bereavement action results in a set award of £12,980 (divided equally between parents if both succeed).