Hello and welcome to this. Webinar on fatal Accidents wanted to look at some of the tricky issues that arise when trying to assess dependency under the Fatal Accidents Act 1976 on One of the things I thought that we look at was to take a look at who those dependence are under the Fatal Accidents Act. In other words, trying to establish who the categories of dependence might bay trying to establish the financial dependency. And I've got the subheading cultural expectations, and I think we're really what I mean there is. That we're thinking about is the subject ity off this test when deciding whether there's a dependency at all. So we're gonna try. Look at the categories of dependence. Also to take a look at cohabit ease and the idea off. You know, what's the criteria for a co happy T to be in a position to recover if you like, as a dependent off the deceased, what's what we need to know about the two year residence requirement? Andi, what's the latest in relation to E. C H R. Challenges in respect local property spaces. Well, look at the level of dependency and I wanted to just take a look at the Harris and impress Motors. Let's call it the formula some off the heads of loss that you might be seeking to recover and one controversial heading is intangible benefits. And what do they mean? What circumstances can we recover? The on the circumstances in which they might be claim in respect or services services that the deceased would have provided had the death nor curd. Let's get started. Let's take a look and remind ourselves I guess that the way in which you bring a claim under the when someone has died is twofold, isn't it? Are potentially under the law Reform Miscellaneous Provisions Act 1934 for the benefit of the disease state Andi, potentially under the Fatal Accidents Act 1976 are for the benefit off the dependence on those who might be entitled to a bereavement award. Now, substantial amendments made both those acts by the Administration of Justice Act 1982 on the acts apply to all claims where deaths occur after the 1st January 1983. So the village developing area off statutory control, if you like over fatal accidents on the main difference. Really, of course, is that the fatal accidents is that claimed for the benefit off the dependence. And that's the really the purpose about Webinar today. Any head of damage which is duplicated between the acts is only going to be recoverable once. I guess that's really rather obvious. So although the acts provide two separate courses of action, commonly they're brought together. A n'importe change to note is Section 93 off the Civil Partnership Act 2004 on That amends the Fatal Accidents Act, so the meaning of dependent for the purposes of a riot of a right of action for wrongful acts causing death also includes now the civil partner off the deceased on the definitions for wife and her husband have been expanded to include anyone not a child of the deceased or, in the case of the civil partnership, was any time a civil partner was treated by the deceased as the child of the family. In relation to that civil partnerships, we get on expansion if you like. I'm through that act a civil partnership act off the categories of those who might be considered dependent. There are under the fatal accidents Act, which is our subject for today. Three possible heads of damage, really. Our dependency claim for the financial losses suffered by the dependence off the deceased on a ward off bereavement damages on a claim for funeral expenses. If those expenses have been paid by the dependence, of course, if those funeral expenses have been paid by the state, then the claim will come under the lower form Miscellaneous Provisions Act. Now the dependence could bring a claim under this act for the losses day suffered as a result of the deceased death. They don't have those dependants, obviously a claim against the defendant. Clearly, the defendant did know them any due to care or any statutory duty. But the act effectively creates a new cause of action under which the dependence can bring claims against the defendant. On under section 11 it's important to remember the dependence must prove the death was caused by any wrongful act, neglect or default, which would have allowed the deceased to bring an action against the defendant. Had they survived their injuries on, it's crucial to be aware that we need to identify, don't we all the perspective, dependence at an early stage because Section two, sub three off the Fatal Accidents Act says no more than one action shall lie. So as a result, only one claim will be brought on the defendant's entitled Toe. All the particulars. Full particulars off all the dependence. There are two types of claim really past and future financial losses on that will include are lost earnings, loss of pension possibly caused as a result, the deceased F where the deceased was the sole breadwinner. The calculation is pretty straightforward, really. Losses from the date of death to the date trial are calculated in a very similar way that you'd calculate losses in a P I action and a usual one past and future losses off service where the dependent is deprived of the services the deceased would have provided. But for the negligence, those services were then get reduced to a monetary value in the same way again as you to calculate services in any personal injury claims. Now, in terms of limitation, one of the issues onto the act is it's important to be clear what the act actually has to say about limitation. Section 12 Off the Limitation Act 1980 says that the dependence of the deceased are actually in no better position than the disease would have been. So if the disease claim would have been statute hard under Section 11 then so our dependence claims we need to look at. But further so Section 12 2 under the act says limitation for dependencies three years from the date of death or the date of knowledge of the person for whose benefit the claim is brought. So if the disease, for example, to seize, died outside the limitation period under Elevens up four, I'm failed to commence an actual before their death. The deceased dependence. A statute barred from bringing a claim after the deceased death although the court does it support to remember this, just as any any other person injury claim, have the power to extend that limitation period in accordance with Section 33 or the Limitation Act 1980 to allow a claim under the Fatal Accidents Act to still be brought just as that discretion exists for any other P. I claim Section 22 of the Fatal Accidents Act allows independent to bring an action directly if there is no executor or administrator all the deceased or no action is brought within six months after the death by the executor or administrator. But in whole thing to remember, dependence can only bring an action under the Fatal Accidents Act in relation to their own loss of dependency on one of the things it's important to keep in mind is that letters of administration are not always necessary in a fatal accident. That claim, if the claim is being bought solely by the dependence in Section 22 of the act does allow, are that dependent to bring the action directly. The crucial caveat, of course, is that the dependence can only bring an action under that act for their own loss of dependency. There's on that of the other dependence. They can't bring an action on behalf of these state. So if they state has a claim for damages, for example, it could be pre death losses, expenses or a case will look at it later the arm in case possibly for aggravated damages in relation to the way the deceased met his death, then the dependence can't pursue those claims. Their claims will be limited to their own financial dependency on the funeral expenses if they pay them. Section 35 of the Fatal Accidents Act deals with that. The case we're going to talk about in a short while. His case called Mubarak Carmen on in My Own Car and partners from a few years ago. Let's take a look now at who might be a dependent Now. One of the things that's clear is that we have within the Fatal Accidents Act, a section that lists effectively those who may be dependence so those who could be defined as a dependent on we'll see the list wife, husband or former wife or husband of the deceased civil partner or former civil partner of the deceased cohabited E of the deceased will say a lot more about that in a short while. Our caveat to that is having living, having been living with the deceased as husband and wife for at least two years before the death, any parent or other ascendant off the disease any person treated is apparent by the deceased, any child or other descendant of the deceased, any person, not a child of the disease or, in the case of a marriage to which the deceased was at any time party was treated as a child of the family in relation to that marriage. Andi. Any person who is the issue off. Brother, sister, uncle on off the deceased. Now the theory there is that those are the categories. Most categories are closed, there are no fresh ones. It's statutory on. Getting past that list and creating any other categories has proved to be pretty nigh on impossible for claimants over the years. We'll talk a little bit about that in a short while to give an example off the kind of relationships that might lead to the creation of a dependent are twin brothers and case school. George on Bolton Copper twin brother to recover following the death of his brother, who had me steal Yoma. The two of them had lived together all their lives, and the level of care provided by the claimant was extremely close and and attentive. They spent most of their lives looking after each other on things were unlikely to have been any different in the last weeks of the deceased life. So dependency in that scenario shanks. That's one hunter grandfather with grandchildren eight and 10. The grandfather, the theory was, would have spent increasing amounts of money on them as their financial needs group, the Children move through school and possibly beyond. It was likely that the disease financial resources are, would have or I substantially increased in order to take care of them. By the same token, Stewart and read Ah could Scottish case from 2014 in that case, arising out of the death after a road accident. Grandfather, three grandchildren, two aged five and three on the third born five months after his death, were awarded lump sums in respect off their dependency on that grandfather. So certainly, you know, relationships like brothers, sisters, Grand Parent's grandchildren or all included in that list. Who's entitled to claim well? The claim on behalf of the dependence is made either by the personal representative off the deceased, just as you would with an estate claim, or are where there is either no part such person or they not brought an action within six months of the death. Then any dependence aren't may bring a claim in his own name, and on behalf of any other dependence. There's no need to name or the dependence on the claim form, particularly two conditions really until very well to set out the are categories off dependent. But what we need to sort out, of course, is someone may be included in that category, but they may not actually be dependent on the deceased. So firstly, I claim for dependency must satisfy the fact that it must come within that definition. So we need to find that person in the list Section one sub three of the act, and then secondly. And this is the important part that they got a reasonable expectation of benefit from the continuance of life that goes right back to a case called Franklin and Southeastern Railway are now that second condition, if you like, is not contained within the act. But it's equally important, ah, person who can't demonstrate that had the deceased person lived, they would have received some benefit from them, will not recover anything. So, for example, working husband dies widow. Depending on that income, both conditions will be satisfied in the claim will succeed. Subject to apportionment on 18 year old child of the deceased person who started work left home was financially independent, would satisfy the first condition what might again, depending on expectation, failed to satisfy the second. So usually we're going to be. We need to look for that second criteria to be present. Past and future financial losses were usually be lost. Earnings lost patron on. That's gonna be pretty straightforward. We need so word about apportionment. On strictly speaking, each dependent portion of the loss could be calculated on divided Up accordingly. So, indeed, that Rule 41 3 a of the simple procedurals provides that the court shall, of course, portion damages between the different claims. But many claims involve a surviving spouse who's left to look after Children on in those circumstances. The courts are pretty pragmatic, really, on the master on approval. If it satisfied, the parent is sensible, has best interests of the child at heart. Most of the damages will be paid out to the surviving parent with ah, modest amount. For example, something of the order of £10,000 paid into court to be released when the child achieves a majority. So that's the usual order that the court is likely to make when it comes to apportionment. Each dependence portion is going to be divided up, according to that rule, Andi note as we said that the shall a portion shall apportion the damages between the different claims is what the rules says on. That's what we need to take on board on when we pick up these cases in relation to dependency. One of the key factors is that dependency is fixed at the moment off death. We've had many judges make this point over the years, but it's absolutely clear, you know, it's fixed at that moment. It's what the dependence would probably have received his benefit from the deceased had the deceased not died. The decisions people make afterwards are irrelevant. The only post death events which relevant are those which affect the continuance off the dependency i e. The death of the dependent, for example, poor trial or a rise in fall of earnings to reflect, for example, the effects of inflation. So what's important is to look at if you like what might have been or what what was likely to have been. That's what matters on Lady Justice. Smith, in the Welsh Ambulance vs Williams case a few years ago, made exactly that point what would have happened had the deceased remained alive, not what the widow is now constrained to do as a consequence of his death. That's quite a different matter. Let's take an example all this in action. Claimants of Widow. She's married to the deceased. They're both in their twenties on They're both working claimant as a solicitor, disease and violence firm. Intention They were going to have a family and the time of birth of the first child. The climate would give up work, Let's say, for the next 15 years, until the youngest child started secondary school. The climate would then probably look for part time work, perhaps until ordinary retirement age. The deceased dies within a couple of years of the marriage on before there's a pregnancy following the disease death, the climate continues. I worked as a solicitor and prospers our by the time of trial. She's a salaried partner with good prospects of reaching equity partner. She's got a new life partner, someone she met at the office. How do we assess the dependency claim? Well, the claim. It's going to be entitled to 66% off her deceased husband's income for 15 years without regard to her post accident income and after that, the court's going to look at the standard formula, and we'll look at all this when we look up. Harrison impress motors and follow the standard formula off 2/3 off the husband's income, plus the climate's part time wages, less the claimants, part time wages to retirement age. Any success. The claimants enjoyed post accident financially and in terms of her life partner is ignored. The fact that the claim it's not had a child doesn't does me on they can't really be this a claim in respect of a child, it can't be a claim in respect for fictitious child. That would be a fiction. So, assuming the rule of thumb in Harrison Impress Motors, the claimants got claims 66% of her deceased husband's earnings. As we said about 15 year period, no room for the contention that the claimant has to have factored in her pre accident earnings. If the claim of successfully persuades the court should have given up work on relied entirely on her husband's income. Had he lived, then she should be entitled to lost earnings based solely on her husband's income. Exactly the same result follows, doesn't it if the claimant established that he or she would have given up work but for the accident for any other reason. For example, a newlywed husband who's married, successful hireling wife. He works at the time she dies, but his evidence is back for the accident. He would have ended tedium of working on taking up a PhD, driving fast cars or any other hobby that doesn't provide an income provided he proves there's a really chance of this happening then, to the extent of that chance, his claim for loss of dependency should be calculated on the basis he would know about his own income on, not by reflecting his pre accident income. That's so even if in the light of his wife's death is continued with work increased his salary. That approach is automatically adopted in cases every day. It's not surprising or unusual. It's quite clear that, you know, in relation to the court's view about what might have been, the court will at the possibility that the claimant would have, for example, given up work into the future, even though that is an actual fact, nor happened certainly, you know, in terms off the Ogden tables figures for contingencies other than immortality factor in the chance that both women and men will cease working to look after Children or reduced to part time work at some point. So the courts will make an allowance for reduced earnings as a result of starting a family just by using the Ogden tables. What we're after is what might have bean. What we need to bear in mind when we're thinking about dependency is the very subjective nature off this test. So it doesn't really matter what are a reasonable personal in ordinary personal the majority would have done. What matters is what was expected in relation to dependency in this scenario. So, for example, in the Bellagio and Bow Bell case from 2005 the it was the sister, I think Lawrence Bellagio, arm who was killed in the Bow Bell disaster disease daughter, promised to repay her parents for the financial sacrifices they have made in rearing her. A successful claim for £20,000 was made on. That's really quite important because the issue is it was an expectation subjectively in that particular relationship. Inbar Soir on Ahmed in 2000 floor on overview approach was used. Toe award. £80,000 to the elderly mother, often adult son again. Expectation that he would have financially supported her in the future. In relation to the nature of the dependency relationship. There are cases where it's been accepted that even in the absence of special cultural fractures, are parent can make a claim for the loss of an adult child. So, for example, case many it's going called Davis and Bonner, where the Court of Appeal overturned a judge's decision. There was no dependency claim for the parents of a 29 year old man who have special educational needs. The court held. The test was not whether the dependency claim was established on the balance of probabilities, but whether the climate could establish there was a substantial rather than a speculative probability off their dependency. Applying the test from the older case of Davis and Taylor from 1974. Let's take a look at this in a in an example on the cases, Armand and Imran Khan, partners in 2011 Zahid Mubarek Wolves, 19 years old when he was killed in a cell mates murdered by cell mate in a felt um, young offenders institution. The summit was a racist with a history of violence. Andi. It's quite clear that Young's argued should never been placed in the cell with him. On. Surprisingly, there was an acceptance of liability of responsibility for the death on the part of prison service. However, the original fake lax and claim against the prison service had to be discontinued because of errors in the way that it was issued are Zaid was age 19. He had no Children or any obvious dependence. No real employment history on a criminal record. In the original accident, action against the Prison Service leading counsel have been asked to advise on, the judge stated. There were two matters arising from counsel's advice in relation to a dependency claim. Are the first is it appears to confuse the need for support with a reasonable expectation of financial gain. So his parents were in a dependent relationship on a financial support arrangement. But need does not need to exist in a fatal accident. Claim it's not wasn't necessary that the parents have to show their in need simply that they had an expectation or financial benefit. The Army case is indicative really of the fact that the courts are sensitive to the practices of different communities on those community expectations. When considering a Fatal Accidents Act claim. There are several cases where the courts have recognized that cultural factors may play a part in determining whether a came could be made under the Fatal Accidents Act on what that claim might bay. It's quite clear that in the Army, in case the claimant doesn't have to be dependent upon this disease at the time of death in order to bring the claim, that test is a reasonable expectation off benefit. And that's the test that we need to take away. We said that we would talk about cohabit ease and indeed, the activate Lexan Zach does have a category off dependent are cohabit ease Section one sub three be off the act, says any person who's living in with the deceased in the same household immediately before the date of death and have been living with the deceased in the same household for at least two years prior to that date. Andi was living during the whole of that period as the husband or wife of the deceased will fit the definition? No. Quite clearly, there's a provision that the within the Fatal Accidents Act that the cohabit ease. Lack of enforceable right to support is to be taken into account on that section. 34 What that means is that the cohabit E will receive less compensation than a lawful spouse on the court might use a lower multiplier in determining that dependency clay. So there is no question there's an inequality here. This is pretty problematic, actually, because if we think the numbers of cohabiting families growing by nearly 30% between 2005 and 2050 a marriage same and opposite sex and civil partnership also increased. In 1996 cohabiting couples were about 9% of families. In 2015 that proportion goes up to 17%. So there's an increasing proportion of those of the population in the UK ah, who effectively make no difference between marriage on civil partnership on co hoppity status. However, the act does make a difference. We've had challenges to the principal on challenges like the challenge that came along in Smith on like you're Teaching hospitals from 2017 went up to the Court of appeal. Um, in that particular case, the court declared that the exclusion of cohabit ease from the categories of people if you like, of those who could receive, Ah bereavement award was incompatible with the act. The practical consequence of that was that the government needs to look at that section and take steps to ensure that is compatible, presumably by including cohabit ease. Have been living together for two years in the list of those entitled to a bereavement payment. Ah, list that they not included it in at the moment. So whilst cohabit ease could be dependence under the act if they've been living with the deceased from or two years prior to the date of death, there no included as those who can receive a bereavement pay at payment at the moment, you know we need to watch the space pursuant to this challenge on the on part of the Smith case. What are the important issues when it comes to questions of dependency, stability of the relationship, any evidence that might be about how stable the relationship is, possibly the existence off Medical records GP records questions about financial support, questions about whether there was a sexual relationship between the couple. Were there Children, Children who might be dependent Children? Was there public acknowledgement of the fact that the couple were living together again? Social media potentially might play a part in Now. What's clear under the act is that in Section one, sub five, any relationship are over by affinity shall be traded as a relationship by Constant Quinn entity. So any relationship of 1/2 blood is a relationship off the whole blood, a step child of the person becomes a child of that person on illegitimate person will be treated as a legitimate child off his mother and reputed father. So if you've got stepsister off the deceased, they will be treated as their true sister uncle of wife treated as husbands. Uncle Um, The adoption, at 90 76 provides that generally on adopted child is treated as the natural child. Off the adopters section 33 of the act are requires, If you like the court Teoh, ignore the prospects of remarriage off a widow for the purposes off the dependency claim. It's important to know, of course, that the fact of remarriage is also ignored. Although the act doesn't specifically deal with that. We know that that's the case. The particulars, when identifying the dependence, are to be set out in the proceedings, and that would include details of the age of the dependent, their relationship with the deceased, the nature of the dependency. And, for example, dependant was a minor daughter who was solely wholly supported by her deceased mother, who was the family's breadwinner, that kind of thing. But as we noted earlier, Section 23 of the act not more than one action shall lie. So as a result, only one claim will be brought on. The defendant is entitled to know who are all those dependants are on behalf of whom the claim is being brought on. That's what we need to be set out in the preceding. If the defendant argues the comb, it's not true dependent. Then the court can order a trial to try and resolve that on a sort of preliminary point type situation, the climate has to do more than proved they were dependent. They have to show there has to be a shown a reasonable likelihood that they will have or will suffer. Financial loss is a result of the death. So, for example, claims for past expenses and losses would generally consist of loss of financial dependency on loss of any services that the deceased would have provided. And relatively simply, we use a multiplier multiple canned approach to make that calculation. Ah, simplified example. Deceased paid The dependence of £100 a month is an allowance on provided D I Y services to the value of £100 1/4. The multiple cam would be £1600 calculating the annual value to the dependence on the loss of the deceased services. Usually a claim like that we brought where, prior to the death, the deceased provided the dependent with services of some quantifiable commercial value on justice with a claim for loss of financial dependency. Acclaim for services can report in respect of services that hadn't been previously provided but might have been given. But for the deceased death, a tricky area is a claim in respect of intangible benefits. On just draw your attention to the case off I'm Grant and secretary of State for Transport. In that particular case, the court took the view that in assessing quantum of damages in a claim brought by a widow following the death of her husband from me steal Yoma. The court reviewed the authorities. I made an award for intangible benefits. Now, in this particular case, it was a some off £2500. Ah, a large amount of money. But the issue was the principle. Really. Is there a reason why an award for services dependency calculated by reference to the cost of replacement services might be inadequate to value the loss of those services? If you've got a wife whose husband used to dual the minor repair work around the house on now has to find a Jews, a plumber, a painter and decorator on make arrangements for them to come on, get them to do things that need to be done. These are things that wouldn't have needed to be done before. Consequently, that's the basis of the award. It's a modest award, but why shouldn't that award be made? Sit call in that particular case services. A dependency award is or should be valued by reference to the cost of replacing those services on, you know. In essence, no reason to assume award is going to confer some sort pecuniary advantage on a claimant such as to justify a refusal to compensate for losses. So we know, subject to our previous arguments in other cases, the latest position is I modest sum, in respect of intangible benefits is allowable. Let's finish up with the formula generally followed by the courts in relation to tryingto work out the dependency. And how the dependency divides up on the case is Harrison Impress Motors at most back to 1984. But still good law on the assumption is that a family unit that consists only of a husband and wife, the dependency off the remaining partner will be 66%. On the basis that the deceased would have spent the remaining some on him or herself. I left as a family unit with Children. The percentage is 75% independency again, with the assumption that 25% of this family Children would have been spent on the deceased themselves. So it's a starting point. You know, there may be arguments that, for example, where family has a low income on perhaps a disease spent perhaps very little on themselves, then that might be different. Or perhaps where the argument is deceased, spent a lot on themselves an expensive hobby, something of that kind that might make a difference. Let's take an example to cease earnings £30,000 per annum, leaving two Children or surviving spouse Sparse earns £10,000 per annum before day, so £30,000 plus £10,000. It was a £40,000 family income 25% deduction. The amount the deceased would have spent on themselves takes us down to 30 £10,000 less that which is the income the surviving spouse still provides. Total multiple hand £20,000 that then gets divided by the number of years appropriate in the Ogden tables the deceased would have had left. If we're talking services on the argument is the dependent is deprived of the services off the deceased. Those services will be reduced to a monetary value just in the same way as we do it in a person injury claim. So consequently we're looking at What is it the deceased did What's the value become place on it now that might be work around the home. It could be, for example, an award for loss of a wife, a mother services. So, in other words, walk with this east of dumb, whether extended hours, increased commitment, prevision of love and care that a mother would provide to her Children in those circumstances, it could be, for example, that the remaining spouse that's the husband will argue that there was a dependency respect off his wife's services, such as cooking, cleaning, laundry or gardening the other way around. So a typical award under this head are in relation to the value of the lost services will be anywhere between perhaps three on £5000. What the kind of things that can be claimed for. Well, we know from recent cases that lots of heads off potential. But services can be added. So, for example, help around the house obviously shopping, cleaning, laundry, ironing, that sort of thing. Child minding driving D I. Y. Normally between 7 50 something like that in £2000 a year. Decorating car maintenance. We've had recent case law where the court took the view that even dog walking was appropriate on that. That was a service that would now have to be provided. It's not difficult to value that service. There are many organizations. You're charged for services off that kind. So consequently, lots of possibilities in relation to the kinds of services that we're talking about would have been provided gratuitously that Now the claimants going to have toe payout to provide those same services. I hope the weapon has been useful. Andi, thank you very much for watching.
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