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FREE CHAPTER from ‘A Practical Guide to Claims Arising from Fatal Accidents – 2nd Edition’ by James Patience

Claims arising out of a Fatal Accident can be complex, high value and fraught with emotion. This book offers the practitioner a clear and comprehensive guide to all of the issues involved with running a claim for damages arising out of a fatal accident. Claims for dependency and other statutory claims for damages are discussed in detail and analysed with reference to the latest case law. Straightforward advice is offered on the merits of many of the common arguments encountered in cases of this kind and the development of these arguments is discussed. The book offers both a clear introduction to the subject for those new to it and a comprehensive guide to all of the latest arguments and case law for the more experienced practitioner.

The latest edition of this book deals with the new rights of cohabitees following the case of Smith; the latest statutory developments to the Fatal Accidents Act and the bereavement award, and includes expanded sections on Regan v Williamson awards, loss of earnings claims of the surviving partner and prospect of reconciliation.

CHAPTER THREE – THE FATAL ACCIDENTS ACT 1976

3.1 INTRODUCTION

This Act is one of the main considerations for the practitioner when considering a claim for damages for wrongful death. The Fatal Accidents Act 1976 repealed the relevant provisions of the previous Fatal Accident Acts1 and applies to any death occurring after the 1st of September 1976.

This chapter considers:

  1. The cause of action created by Section 1 of the Fatal Accidents Act 1976;

  2. Who is entitled to bring an action under the Fatal Accidents Act 1976 and;

  3. The fact that one action is brought for all dependants.

3.2 SECTION 1 OF THE FATAL ACCIDENTS ACT 1976

Section 1(1) of the Act states:

Right of action for wrongful act causing death.

(1) If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

In the case of Gray v Barr2 Lord Denning MR provided a typically succinct summary of the effect of S1(1):

If [the deceased] had lived, i.e., only been injured and not died, and living would have been entitled to maintain an action and recover damages – then his widow and children can do so. They stand in his shoes in regard to liability, but not as to damages3

3.3 SECTION 2 OF THE FATAL ACCIDENTS ACT 1976

3.3.1 PERSONS ENTITLED TO BRING THE ACTION

S2 of the Fatal Accidents Act 1976 sets out who is entitled to bring the action. At S2(1) and (2) it states:

Persons entitled to bring the action.

(1) The action shall be brought by and in the name of the executor or administrator of the deceased.

(2) If—

(a) there is no executor or administrator of the deceased, or

(b) no action is brought within six months after the death by and in the name of an executor or administrator of the deceased,

the action may be brought by and in the name of all or any of the persons for whose benefit an executor or administrator could have brought it.

Where there is no executor or administrator, or a delay in appointing one, any dependant may bring an action after six months have elapsed. The definition of a dependant is discussed in detail at chapter six.

If a claim is brought by an administrator care should be taken to ensure that the claim is not brought before letters of administration are granted. In the past this produced a situation whereby the proceedings were a nullity and the courts had no power to correct the error. In the more forgiving modern era of the Civil Procedure Rules (“hereafter “CPR”), CPR 17.4(4) and 19.4 allow the court to alter the capacity in which a claimant brings an action, even after the expiry of the relevant limitation period. Of course, the cost and increased stress that such an application would cause should be avoided if possible.

The position when a claim is brought solely on behalf of the estate of the deceased under Law Reform (Miscellaneous Provisions) Act 1934 is different. An action brought on behalf of a deceased’s estate by a person as administrator who at the date of commencing the claim does not have a grant is a nullity and the CPR does not operate to “save” the action4. Claims brought under the Law Reform (Miscellaneous Provisions) Act 1934 are discussed in detail in chapter 16.

Where the action is brought by the executor of the deceased the capacity to bring an action vests in the executor upon death. The grant of probate is merely proof of the executor’s status5.

3.3.2 ONE ACTION

Only one action may be brought in respect of wrongful death. Section 2(3) of the Fatal Accidents Act 1976 states:

Not more than one action shall lie for and in respect of the same subject matter of complaint

The CPR actively encourages using a single set of proceedings to dispose of all claims that can be “conveniently disposed of in one set of proceedings”6. One set of proceedings should be used where there is a claim under both the Fatal Accident Act 1976 and a claim under the Law Reform (Miscellaneous Provisions) Act 1934. Similarly one set of proceedings should be used where the same accident has given a dependant a claim in a personal capacity for personal injuries and a claim under the Fatal Accidents Act 1976 as a dependant.

One set of proceedings is issued for all dependants. The damages (apart from the bereavement award) are then apportioned according to the degree of pecuniary loss. Section 3(1) of the Act states:

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.

Although it is clear that the broad case-management powers given to the court by the CPR7 now permit a dependant to be added to an action after the matter has commenced, it is preferable to avoid the cost and stress of such an application and clearly ascertain who are the relevant dependants that must be included before the action is commenced.

Although alternative approaches are technically possible, by far the most usual approach is that the damages in a claim under the Fatal Accidents Act 1976 are assessed as a whole in the first instance and then apportioned as appropriate in accordance with the loss suffered by each dependant8. Apportionment is discussed in more detail at chapter twelve.

3.4 INFORMING THE DEFENDANT

Whichever entitled party brings the action, S4 of the Fatal Accidents Act 1976 makes it clear that the defendant must be fully informed of the action and on whose behalf it has been commenced. S4 states:

The plaintiff in the action shall be required to deliver to the defendant or his solicitor full particulars of the persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.

3.5 SUMMARY

In summary:

  1. Section 1(1) of the Fatal Accidents Act 1976 sets out the cause of action;

  2. A claim may be brought by the executor or the administrator of the deceased’s estate;

  3. Where there is no executor or administrator, or a delay in appointing one, any dependant may bring an action after six months have elapsed;

  4. If a claim is brought by an administrator care should be taken to ensure that the claim is not brought before letters of administration are granted;

  5. Section 2(3) of the Fatal Accidents Act 1976 states that only one action may be brought in respect of wrongful death;

  6. The defendant must be fully informed of the action and on whose behalf it has been commenced.

MORE INFORMATION / PURCHASE THE BOOK ONLINE

1Fatal Accidents Acts 1846, 1908, 1959

2[1971] 2QB 554 at 569D

3Emphasis as per the original judgment.

4 Haastrup -v- Okorie [2016] EWHC 12

5 Ingall v Moran [1944] KB 160

6See CPR 7.3

7See CPR 3 and 19

8See the dicta of Lord Guest in the case of Kassam v Kampala Aerated Water Co Ltd [1965] 1 W.L.R 668 at 672

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