Fatal Accident Act 1976 Dependency Claims as a ‘Separate Statutory Cause of Action’?

The common law position, prior to passage of the Law Reform (Miscellaneous Provisions) Act [LR(MP)A] 1934, followed actio personalis moritor cum persona’. Translated from Latin, this means: ‘the personal action dies with the person’.

The effect of s.1 of the 1934 Act was to overturn this principle so that a deceased’s extant personal injury claim may survive their death through their estate. Another claim is vested in the Fatal Accidents Act (FAA) 1976 and may be pursued on behalf of the deceased’s living dependants, but will only succeed if it can be shown that the deceased would have been awarded damages were they still alive.

It is typical, in fatal claims, for the executor/administrator of the estate to bring both LR(MP)A claims (e.g. for general damages, loss of earnings, funeral expenses, etc.) and FAA claims (e.g. for loss of dependency, bereavement, funeral expenses, etc.) conjointly, i.e. together in the same set of proceedings.

However, is it accurate to say that both statutory causes of action are mutually exclusive, i.e. is it possible for an estate (plus dependency) claim to be pursued separately from a dependency-only claim, even though an administrator/executor has a duty to take ‘all reasonable steps’ to inform eligible dependants of an action – see Cooper v Williams [1963] 2 Q.B. 567?[i]

At first blush, one would say that there is scope for mutual exclusivity, as it appears that s.1(2)(a)(ii) of the 1934 Act has been drafted, with hindsight, to prevent double recovery under the 1976 Act were claims to be advanced separately.

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Turning to s.2(2)(b) of the 1976 Act, compatibility with the presumption of mutual exclusivity is bolstered by the fact that there are foreseeable circumstances where dependants, who cannot themselves commence estate claims, may be permitted to start dependency claims. Observe s.2(3), where ‘same subject’ may be interpreted as damages in respect of the same loss and ‘action’ means ‘served process’, as opposed to claims that have merely been issued ­– see Cachia & Ors v Faluyi [2001] EWCA Civ 998.

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How does case law resolve the question?

In the unreported Court of Appeal authority of Casey v Brooks Contracting Co Ltd (1991), an administratrix settled FAA and LR(MP)A claims on her own behalf, but without reference to her children, who were dependants of the deceased. On this occasion, Taylor LJ acknowledged the existence of residual dependency claims remaining post-settlement:

‘That agreement was signed by both the plaintiff and her solicitor. It was not signed by the plaintiff's co-administratrix, but it is conceded that no point turns on that omission. It is to be noted that no reference is made to the children or to their claim in that agreement. Thus, the acceptance of £2,000 was to be in full satisfaction of the plaintiff's own claim under the Fatal Accidents Act 1976, but did not purport to dispose of the claims of the two children as dependants. So it is common ground that their claims under that Act can still be pursued. By contrast the acceptance of the £2,000 was also agreed to be in full and final settlement of the claim on behalf of the deceased's estate under the 1934 Act. If, therefore, the agreement was effective, the plaintiff would be barred from pursuing the claim on behalf of the estate in the interests of the children as beneficiaries’.

Also, take note of Reader & Ors v Molesworths Bright Clegg Solicitors [2007] EWCA Civ 169. This was a professional negligence case, in which an administratrix unsuccessfully argued that a solicitors’ practice, which discontinued a living PI claim, should have added her FAA dependency action by amendment at the moment her spouse died. In essence, counsel for the claimant submitted that there was only one cause of action through which the administratrix could have obtained compensation for loss of dependency – the PI claim which ‘transmitted to the estate’ upon the deceased’s death:

‘Once a personal representative was appointed, that cause of action was enlarged or extended so as to include a dependency claim under the FAA. If a claim had already been brought before the death, it could have been amended to add the FAA claim. If no claim had been commenced, a single claim could be made covering the injuries before death and the loss of dependency. If the single claim was at any stage discontinued, compromised or satisfied, the whole cause of action was at an end. The judge was wrong to hold that there were two separate causes of action arising from the same wrongful act and that one could survive the discontinuance of the other’.

However Smith LJ preferred the arguments put forward by opposing counsel, as reasoned at paragraphs 36 to 38:

‘In my view, it is clear from Section 1 of the FAA that, if at the moment of his death, an injured claimant has an existing cause of action arising from the wrongful act which caused his injuries and if he dies as the result of the same wrongful act, a second cause of action for the benefit of his dependants comes into being at that moment. Also at the moment of death, the existing cause of action is transmitted to his estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934.

… It is well recognised that there are two separate actions. In addition, it should be noted that the two actions are governed by different limitation periods. The personal injury action is governed by sections 11 and 14 of the Limitation Act 1980. In general, the action must be brought within three years of the accident or where the claim relates to a progressive disease, within three years of the date on which the claimant knew or ought reasonably to have known of the claim. On the other hand, the claim under the FAA is governed by section 12 of the Limitation Act, which provides that the claim must be brought within three years of the date of the death. These provisions are not compatible with the notion that the FAA claim is merely an extension of or amendment to the original claim.

I conclude therefore that, when in late March 1995, Mr Lettall advised Mrs Reader to consult other solicitors, the dependants' claim under the FAA was intact. Had its value been reduced by any uncertainty as to its validity? In my view, it had not; it was as valuable as it had been before 11th January. Liability was bound to be admitted, as it had been admitted in the personal injury action. There would be an issue as to whether the death was causally related to the original accident but that would have been in issue whether the claim had been commenced before 11th January or after. There had been no delay in prosecuting the claim such as might reduce its value. The limitation period had only just begun to run. Mrs Reader could have started the FAA action as soon as she instructed new solicitors’.

Finally, it is worth considering the comments of Mr. Justice Smith, in Microsoft Mobile OY (Ltd) v Sony Europe Ltd & Ors [2017] EWHC 374 (Ch). This case centred on issues relating to jurisdiction and did not itself concern a personal injury action, but gave a cogent summary of one of the most recent personal injury cases to explicitly indicate that a claim under the FAA is a cause of action that can be advanced separately from a LR(MP)A claim:

‘In Brownlie v. Four Seasons Holdings Inc [2015] EWCA Civ 665, the Court of Appeal also drew a distinction between direct losses and indirect/consequential losses. A claim for damages brought by the claimant on her own behalf and on behalf of her husband’s estate for injuries suffered as a result of an accident in Egypt was consequential loss; on the other hand, the claimant’s claim under the Fatal Accidents Act 1976 had been sustained within the jurisdiction, as it was a separate statutory cause of action brought to recover compensation for the claimant’s loss of dependency, and was not consequential loss’.

N.B. as regards to Arden LJ’s ruling in Brownlie, chiefly that the FAA engages a ‘separate cause of action’, her motivation was derived from the Supreme Court’s judgment, in Cox v Ergo Versicherung AG [2014] UKSC 22.

What does all of this mean in practice? 

In a hypothetical scenario, in which an administrator/administratrix compromises a LR(MP)A claim (either through discontinuance or settlement) on behalf of the estate, this would not theoretically preclude an estranged dependant from bringing a FAA claim later down the line.

 

[i] ‘Law Reform Act or Fatal Accidents Act?’ (Lexis Nexis)  https://www.lexisnexis.com/uk/lexispsl/personalinjury/document/393875/55MK-3WF1-F18H-M2JK-00000-00/Law_Reform_Act_or_Fatal_Accidents_Act_> accessed 8 January 2021.