Injury, death, dependency – how many
causes of action?
Reader v Molesworth Bright Clegg
Solicitors [2007]
EWCA Civ 169
Mr Reader (R) was injured in a road
traffic accident in November 1989. Astonishingly, the consequences of his
accident were still being played out in the Court of Appeal in March 2007 in a
professional negligence claim against the solicitors (MBC) who handled R’s
personal injury claim. The judgment has made it clear that a dependency claim
under the Fatal Accidents Act is a separate cause of action from the deceased’s
personal injury claim. Consequently, MBC caused no loss to the dependants when
they negligently settled the personal injury claim after R’s death.
The first claim
MBC issued proceedings against the
negligent driver, D, in 1991. Liability was not in issue. By 1991, R was
suffering from clinical depression that, according to his psychiatric evidence,
was attributable to the accident. His wife (W) moved out in 1994, leaving him
to care for three children aged between 6 and 13. R committed suicide on
Christmas Eve 1994.
The cause of action for his injuries
then vested automatically in his estate. R was intestate, but before W had
taken out letters of administration, MBC had written to D’s solicitors,
informing them of R’s death and proposing that the claim be discontinued with
no order for costs. D agreed. Less than 3 weeks had passed since R’s death by
this stage. Needless to say, MBC had no instructions to settle the claim in
this manner, since before W obtained letters of administration, there was
no-one who could give MBC instructions on the personal injury claim.
D refused MBC’s attempts shortly
thereafter to un-agree the settlement and suggested that W be advised to seek
fresh advice. MBC gave this advice in March 1995. Her new solicitors asked
for MBC’s file in June 1995.
The professional negligence claim
In March 1998, a mere 2 years and 9
months later, W’s new solicitors wrote to MBC claiming damages for professional
negligence – not only for the loss of the personal injury claim, but also
asserting that if the claim had not been wrongfully discontinued, claims under
the Fatal Accidents Act 1976 would have been added to the action. W now had a
further psychiatric report linking R’s suicide with the accident. W, it was
said, could have claimed bereavement damages and the children (CC) could have
claimed damages for loss of care and services from R. W asserted that MBC’s
negligence had deprived them of these claims against D.
Liability for negligently settling
the personal injury claim was not in issue and this part of the claim was
eventually settled for £55,000. However, MBC denied liability for the
bereavement and dependency claims, saying that (a) W could have brought a
bereavement claim herself before December 1997 (3 years after her husband’s
suicide); (b) MBC’s retainer had terminated in March 1995; (W) each of the
children could bring dependency claims until they turned 21; (d) MBC’s
negligence in relation to the PI claim had therefore caused W and CC no further
loss.
In December 2004 (15 years after the
accident) proceedings were brought by CC against MBC for negligence. There was
no claim by W herself. It was said that, on R’s death, the benefit of R’s
retainer of MBC passed to W and CC as they had rights to damages based on R’s
death. MBC breached the duty of care owed to R’s family, it was said, by
discontinuing the personal injury claim and thus preventing the dependants from
being their claim.
MBC said that the benefit of the
retainer did not pass to the family, nor did MBC owe a duty to the family in
relation to dependency damages after R’s death. It was further denied that the
family had suffered any loss as a result of MBC’s actions, since the dependency
claims had not been prejudiced by MBC’s actions.
Preliminary issues
An order was made for trial of
preliminary issues of whether (a) MBC did owe a duty of care to CC (b) whether CC
could bring a claim for dependency damages after discontinuance and compromise
of R’s action and (c) whether CC’s failure to bring a dependency claim against
D was a failure to mitigate loss or broke the chain of causation.
The judge, HHJ Bullimore in the
Sheffield County Court, concentrated on the second issue and it was this issue
that dominated the argument in the Court of Appeal. He ruled that, from the
moment of death, there were two separate causes of action: the personal injury
claim and the Fatal Accidents Act claim. MBC had only compromised the personal
injury claim. Mitigation of loss did not arise as MBC had not caused any loss
to CC that had to be mitigated.
The Court of Appeal
On appeal, CC again asserted that
there was only one cause of action for both the personal injury claim and the
FAA claim. Perhaps surprisingly, there was no authority directly on point.
Section 1 of the FAA provides:
(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.
(2) Subject to 1A(2)
below, every such action shall be for the benefit of the dependants of the
person (“the deceased”) whose death has been so caused.”
It was contended that the right to
bring an FAA claim was parasitic on the personal injury claim vested in the
estate. The argument ran as follows: if the injured person could no longer
bring a personal injury claim at the date of death, because of judgment,
settlement or discontinuance, then no FAA cause of action came into existence,
given the wording of s.1(1). Therefore, the FAA cause of action depended on
the PI cause of action still existing at date of death. Therefore (and here
came the leap) the FAA cause of action still depended on the PI action even
after the date of death. If the PI action (vested in the estate) was pursued
to judgment, settled or discontinued after the date of the death, then the FAA
claim could no longer be brought.
CC relied on McCann v Shepherd [1973] 1 WLR 540. In that case, McCann succeeded in his personal injury claim
at trial but died before the appeal was heard. D wanted the damages to be
reduced to reflect his death. The Court of Appeal discussed the question of
whether McCann’s widow could claim under the FAA. Lord Denning MR said that
she could not, since C himself could not have sued at the date of death because
he had settled with D. However, as the Court of Appeal pointed out, this did
not take matters very far, since R’s claim was still in existence at the date
of his death.
CC also relied on Murray v Shuter [1972] 1 Lloyds Rep 6, where Murray’s claim was adjourned until after his death
to enable his dependants to claim damages (it being thought at the time that
damages for the “lost years” could not be recovered). Unfortunately for CC,
their counsel was forced to concede that this authority did not assist them –
indeed, MBC submitted that Murray showed that death brought the
FAA right into existence, as long as C could have brought a PI claim at date of
death.
MBC argued that the crucial time for
the FAA claim was the date of death: if the personal injury action still
existed at that moment, then the FAA claim came into being. Thereafter, the
FAA claim was not affected by subsequent settlement or discontinuance of the PI
claim. There were two causes of action.
It was argued that MBC’s actions had
led to uncertainty and so led to a diminution in value of the FAA claim. MBC’s
answer was that (a) the claim was not pleaded on that basis and (b) there was
no “uncertainty”, just a disagreement on law, where the correct position was
always capable of being ascertained by a judge. There was no halfway house:
either no FAA action was possible, or a “full-value” claim was still possible.
The Court of Appeal
In the leading judgment, Smith LJ (a very experienced personal injury
judge) said that MBC’s arguments were right. She agreed with MBC’s counsel’s
recollection of his personal experience that the estate’s claim and the FAA
claim could, in unusual circumstances, be brought separately. Neither did the authorities
help CC: if the PI claim had not been satisfied before death and the claimant
died as a result of the same wrongful act, then a second cause of action came into
being. An important indication that there are two causes of action is that
there are two different limitation periods: by sections 11 and 14 of the
Limitation Act 1980, three years from date of accident (or date of knowledge)
for the PI claim; by section 12, three years from date of death for the FAA
claim. As Smith LJ said, “These provisions are not compatible with the notion
that the FAA claim is merely an extension of or amendment to the original
claim.” Longmore LJ, agreeing with Smith LJ, said that whilst the line of
authorities relating to the inability to bring an FAA claim if no personal
injury claim could be brought at date of death had been criticised,
nevertheless it did not give the answer the CC wanted. Death made all the
difference since, before death, no dependency claim could arise.
So, W’s claim and CC’s claims were still intact when MBC’s retainer was
terminated. MBC caused no loss to CC. CC’s fallback argument was also
rejected, as there was no diminution in its value because of MBC’s actions.
Smith LJ expressed some thoughts on the issue of whether MBC owed CC a
duty of care, although she said that this was of academic interest only in the
circumstances since any breach (which was not a matter before the judge or the
Court of Appeal for decision) had caused no loss to the children. MBC argued that,
from the date of being instructed by W as putative administrator of the estate
(but not from the date of R’s death), MBC owed W a duty to advise her
not only about the PI claim but also as to the existence and scope of the FAA
cause of action, including the possible claims of the children. However, MBC
said, this did not amount to a legal duty owed directly to CC. Smith LJ
agreed. The children’s claims could be brought until they were 21. It would
be up to them to take advice in their own right after turning 18. If they
retained the same solicitors but MBC still failed to advise them correctly,
then MBC would be liable to them but under a different retainer, not their
mother’s retainer. Smith LJ agreed, although sounding a note of caution about
it being unwise to determine as a preliminary issue whether a duty of care
existed. She also said that there was a difference between duty of care and providing
a good service: solicitors had a professional responsibility to advise the
person responsible for bringing a dependency claim for children in such a way
as to ensure that the claim on the dependant’s behalf was brought with proper
expedition.
As to this issue, Moses LJ did not want to get involved at all and,
whilst Longmore LJ agreed with Smith LJ as to lack of a duty of care owed to CC,
he left open the question of whether MBC were in breach of duty to C, saying
that this did not arise on the preliminary issues as framed.
Consequences
The youngest child, who was just 7
when the father died, still has 18 months left in which to bring a dependency
claim. However, the other two children are now well over 21 and, unless
protective proceedings were brought and stayed against the original driver
before they each turned 21, they cannot now bring FAA claims. W brought no
claim for bereavement damages against D either. Will the elder children and
their mother now have to consider a second professional negligence claim
against the second solicitors for their advice in the first professional
negligence claim?
Or will this case go further?
Longmore LJ’s judgment refers to criticisms made of the state of the law in
this area in McGregor on Damages and notes that the House of Lords has
declined (in Pickett v BREL [1980] AC 136) to give final endorsement to
the proposition that there is no FAA claim if the PI claim has proceeded to
judgment before the injured party dies. It remains to be seen whether the House
of Lords think that this is a suitable case to re-examine this area of the
law. What must not be forgotten is that clarity at Court of Appeal level has
come on the back of a family tragedy over 17 years ago.
Tim Petts
12 King’s Bench Walk
March 2007
