RECENT CASES ON FATAL ACCIDENTS CONSIDERED

ge By Gordon Exall

 

Here we review recent cases relating to fatal accidents.

 (1) Accidents abroad and the scope of the Fatal Accidents Act;

(2) Cohabitation, human rights and the Fatal Accidents Act.

(3) Valuing a dependency claim;

(4) Damages for loss of consortium.

THE SCOPE OF THE FATAL ACCIDENTS ACT : COX –V- ERGO VERSICHERUNG AG

The decision in Cox –v- Ergo Versicherung AG [2014] UKSC 22 is an important one in relation to fatal accident claims where the accident happened abroad. The case was considered twice by the Court of Appeal. Firstly here; secondly here.

 THE FACTS

The appellant’s husband was killed in a road traffic accident in Germany. She brought a claim against the German driver in England.   The central issue was whether damages were governed by German or English Law.

 THE DECISION

The Supreme Court concluded that The Fatal Accidents Act 1976 did not have extra territorial effect. Therefore it could not apply when the fatal accident occurred in a different jurisdiction. The governing law for the purpose of damages was the law of the country in which the accident occurred.

 THE EFFECT

  • Cases involving foreign jurisdictions are difficult and often require additional research.
  • The decision in Cox will result in a number of claimants in Fatal Accident cases receiving less than they would have done, had the accident happened in England. In a number of jurisdictions the amount and type of damages that can be claimed are less generous.
  • It is clear that the Fatal Accidents Act only applies to cases where the accident happened in the jurisdiction.

 THE FATAL ACCIDENTS ACT  COHABITATION AND HUMAN RIGHTS: SWIFT V SOS FOR JUSTICE

In Laurie Swift v Secretary of State for Justice [2013] EWCA Civ 193 the Court of Appeal considered the effect of the European Convention on Human Rights on The Fatal Accidents Act 1976.

 THE FACTS

The claimant had been co-habiting with a man for six months when he was fatally injured in an accident at work. Their child was born after his death. At first instance the Claimant’s claim was dismissed as she did not come within the definition of a dependant as outlined in the Fatal Accidents Act. She subsequently appealed on the basis that it was incompatible with her rights under the European Convention of Human rights, specifically Article 14 and Article 8.

 THE DECISION

The Court of Appeal found that Section 1 (3) (b) was not incompatible with article 14 or 8. The provision was a proportionate means of pursuing a legitimate aim. It allowed dependents to bring claims after fatal accidents while also confining that right to those who had relationships of permanence and dependence.

 THE EFFECT

  • The decision swift reiterates that the Fatal Accidents Act, and specifically the closed categories of dependants are not incompatible with a potential claimant’s human rights.
  • It is important to check whether a potential Claimant comes within the definition of a dependant as outlined in the act prior to starting proceedings and make a claim on behalf of all the dependants (remember only one claim can be brought on behalf of the dependants – there are no second chances.)

 A PERSONAL INJURY CLAIM WHEN THE FATAL ACCIDENT CLAIM IS REDUCED.HAXTON –V- PHILLIPS

Haxton –v- Phillips Electronics [2014] EWCA Civ 4 is an unusual case but highlights the inter relation of personal injury claims and fatal accident claims.

 THE FACTS

Mrs Haxton brought a Fatal Accident Claim as her husband had died due to exposure to asbestos. However Mrs Haxton also developed mesothelioma from washing her husband’s work clothes. The Defendant successfully argued that the damages for dependency should be reduced on account of Mrs Haxton’s own reduced life expectancy.

 THE DECISION

Mrs Haxton brought a second personal injury claim, in her own right against the defendant. The court found that there was no reason of principle or policy which deprived a Mrs Haxton from recovering common law damages which represented the amount of loss she could not recover in a statutory cause of action, as the damages for future dependency in that action had been curtailed by her own shortened life expectancy.

 THE EFFECT

  • Valuing dependency claims can be difficult, especially if there are factors, which affect a person’s life expectancy, as in the present case.
  • There have been a number of cases in which family members have contacted mesothelioma in cases involving employers’ liability and asbestos. As outlined in  the case there is no principle which prevents them bringing a personal injury action and being awarded their “lost” damages under in the fatal accident claim.

 LOSS OF CONSORTIUM: A DEVELOPING HEAD OF DAMAGES: – BROWN V HAMID

 Relatively few fatal cases get to trial. The recent decision of Brown –v- Hamid [2013] EWHC 4067 (QB) provides an interesting example of how the courts approach the issue of dependency. It also discusses the possibility of awarding damages for loss of consortium in fatal accident claims brought by the deceased’s partner.

 THE FACTS

Brown was a clinical negligence case where Mr Brown died as a result of a failure to prescribe Warfarin. The failure was found to have accelerated Mr Brown’s pre-existing symptoms and death. The judge found that the period of acceleration was around 12 months.

 THE DECISION

The judge considered the various heads of damage in Fatal Accident Cases :

  • Although the specific head of knowledge for loss of expectation of life has been abolished, the court is entitled to take this into account when assessing damages for pain and suffering.
  • Funeral expenses were not appropriate in the present case. Although they may be recovered in certain cases, in the present case the damage had been an acceleration of symptoms of a pre-existing condition by a relatively short period.
  • Awards for loss of earnings and DIY skills were recovered.
  • Although it was accepted that loss of special consortium can be recovered in certain cases, the judge found it was not appropriate in the present case.

 THE EFFECT

  • One of the interesting factors in this case is that although there was a very limited impact on life expectancy, damages for loss of dependency was still recovered.
  • It also highlights that a claim for loss of consortium is a recognised head of damage in fatal accident cases brought by spouses, civil partners and partners.  But the courts are yet to devise a consistent approach towards its application.
  • Although the awards are unlikely to be substantial, they should always be included in a claim for loss of a partner.
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