Remedies for personal injury and death claims - Damages in c...

Learning Outcomes

This article outlines remedies for personal injury where death has occurred under LR(MP)A 1934 and FAA 1976, including:

• distinguishing between estate claims and dependency claims and identifying who can bring each type of action;
• identifying recoverable heads of loss under LR(MP)A 1934, including PSLA, pre-death pecuniary losses, mental suffering for reduced life expectancy, and the 'lost years' claim;
• explaining the scope of dependency claims under FAA 1976, the categories of dependants, and the calculation of financial and services dependency using the multiplicand/multiplier method and the Ogden Tables;
• analysing how contributory negligence, discount rates, and the prohibition on double recovery affect combined estate and dependency claims;
• clarifying when no damages are available for instantaneous death and how this impacts the structure of potential claims;
• outlining the nature, purpose, eligibility rules, and quantum of the statutory bereavement award, and how it interacts with other heads of damage;
• applying these principles to typical SQE1-style scenarios involving concurrent LR(MP)A and FAA claims.

SQE1 Syllabus

For SQE1, you are required to understand the legal framework for awarding damages in cases where a tort results in death, including applying the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976, identifying the types of claims available, who can bring them, and the principles for assessing recoverable losses, with a focus on the following syllabus points:

• Distinguishing between claims brought for the estate and claims brought for dependants.
• Identifying the types of damages recoverable under the Law Reform (Miscellaneous Provisions) Act 1934, including the 'lost years' principle.
• Understanding the requirements for a dependency claim under the Fatal Accidents Act 1976, including who qualifies as a dependant.
• Knowing the nature and limitations of the statutory bereavement award.
• The basic principles for calculating loss of dependency.
• How contributory negligence affects both estate and FAA claims, and the prohibition on double recovery across concurrent claims.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which Act allows a claim to continue for the benefit of the deceased's estate after their death?
   1. Fatal Accidents Act 1976
   2. Law Reform (Contributory Negligence) Act 1945
   3. Law Reform (Miscellaneous Provisions) Act 1934
   4. Damages Act 1996
2. Under the Fatal Accidents Act 1976, which of the following can typically claim bereavement damages? (Select all that apply)
   1. The deceased's spouse or civil partner
   2. The deceased's adult children
   3. The parents of a deceased minor child (if unmarried)
   4. The deceased's cohabiting partner of less than two years
3. Which principle allows the estate to claim for the net earnings the deceased would have made during the period they would have lived but for the fatal injury?
   1. Loss of amenity
   2. Bereavement award
   3. Lost years principle
   4. Loss of consortium

Introduction

When a person dies as a result of a tort, such as negligence, the common law rule that a personal cause of action died with the person (actio personalis moritur cum persona) has been significantly modified by statute. Two key pieces of legislation govern the award of damages in these circumstances: the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A 1934) and the Fatal Accidents Act 1976 (FAA 1976). These Acts provide separate but often overlapping avenues for recovering compensation, one for the benefit of the deceased's estate and the other for the benefit of the deceased's dependants. Understanding the scope and application of each Act is essential for assessing remedies in fatal accident claims.

Key Term: Estate Claim
A claim brought by the personal representatives of the deceased under the LR(MP)A 1934 for losses suffered by the deceased up to the moment of death, and potentially for loss of earnings during the 'lost years'.

Key Term: Dependant (FAA 1976)
A person falling within the statutory categories in s 1(3) of the FAA 1976 who was financially dependent on the deceased or had a reasonable expectation of pecuniary benefit from the deceased.

Claims for the Estate (LR(MP)A 1934)

The LR(MP)A 1934 provides that most causes of action vested in the deceased at the time of death survive for the benefit of their estate. This means the personal representatives (executors or administrators) can bring or continue a claim that the deceased could have brought had they lived. The cause of action survives whether or not the death was caused by the tort in question.

Scope of Recovery under LR(MP)A 1934

The damages recoverable by the estate are limited to the losses suffered by the deceased before death and certain recognized future earnings losses in the 'lost years'. These typically include:

• Pain, Suffering, and Loss of Amenity (PSLA): Compensation for the deceased's conscious pain and suffering and loss of enjoyment of life experienced between the injury and death. If death was truly instantaneous and the deceased had no awareness, no PSLA is awarded under this head.
• Expenses Incurred: Any reasonable expenses incurred by the deceased between injury and death, such as medical costs or damage to property attributable to the tort.
• Loss of Earnings (pre-death): Net earnings lost by the deceased between the date of injury and the date of death, including lost overtime or bonuses on the same basis as for living claimants.
• Mental suffering due to shortened life expectancy: Where appropriate, damages are recoverable for the deceased’s anguish caused by the realization that their life expectancy was reduced (Administration of Justice Act 1982, s 1(1)(b)), provided the deceased was aware of it before death.

Importantly, claims in defamation do not survive death. Also, the estate cannot recover bereavement damages under the FAA; that is a separate statutory award for eligible relatives only.

The 'Lost Years' Claim

A significant head of damage recoverable for the estate under the LR(MP)A 1934 is the 'lost years' claim, recognized and explained in modern authority. It represents the net loss of earnings the deceased would have accrued during the period they would have lived and worked but for the fatal injury caused by the defendant's tort.

Key Term: Lost Years
The period between the date of expected death due to the tort and the date the deceased would otherwise have been expected to live and work. The estate can claim the net earnings lost during this period, after deducting the deceased’s own living expenses.

When calculating damages for the lost years, the court starts with the deceased’s net annual earnings (the multiplicand), then applies a deduction for the proportion of earnings the deceased would likely have spent on their own maintenance, often taken as:

• about 25% for someone with dependants, and
• about 33% for someone without dependants.

These percentages are conventions that may be varied based on evidence about actual spending. The multiplier is derived from the Ogden Tables, reflecting the expected duration of the lost years and the applicable discount rate (currently minus 0.25% in England and Wales), adjusted for contingencies. The calculation is made with the trial date as the valuation point.

The lost years are a claim by the estate for the deceased’s loss; they are distinct from the dependants’ FAA claim and both may be pursued concurrently, subject to avoiding duplication in respect of identical heads of loss.

Exceptions

Certain claims do not survive death under the LR(MP)A 1934, notably:

• claims for defamation,
• claims for bereavement damages (these are under FAA 1976),
• claims that were not vested at death.

There is no civil claim for the “death itself”. Where death is instantaneous and no losses accrued prior to death, the estate may have little or no recoverable damage (though an FAA dependency claim may still arise for dependants).

Worked Example 1.1

Ahmed, aged 40, was severely injured in a road accident caused by Ben's negligence. Ahmed survived in hospital for two weeks before dying from his injuries. He endured significant pain during this time. He earned £40,000 net per year and would likely have worked until age 65. His personal living expenses were estimated at 30% of his net income. What claims might Ahmed's estate bring under the LR(MP)A 1934?

Answer:
Ahmed's estate could claim under the LR(MP)A 1934 for:

1. PSLA: For the pain and suffering Ahmed experienced during the two weeks before his death.
2. Loss of Earnings (pre-death): Two weeks' net earnings.
3. Lost Years: Damages for the net earnings Ahmed would have earned between age 40 and 65 (25 years), less the 30% he would have spent on himself. The calculation would involve applying a multiplier to the net annual loss (£40,000 × 70% = £28,000).

Worked Example 1.2

Priya, aged 55, was diagnosed with a terminal illness caused by negligent exposure at work. She remained conscious of her illness for four months and was aware that her life expectancy had been reduced by five years. She was earning £36,000 net annually and would have retired at 66. She had no dependants and her personal expenditure was about one-third of her net income. What estate claims are available?

Answer:
The estate can claim:

• PSLA: For Priya’s pain and suffering during the four months until death, and her loss of amenity.
• Mental suffering for shortened life expectancy: Damages recognizing her anguish upon learning that her life expectancy was reduced.
• Pre-death earnings loss: Net earnings lost during the four months.
• Lost years: Five years of net earnings reduced by Priya’s own living expenses (commonly one-third where there are no dependants), with an appropriate multiplier applied to the net annual figure.

Claims for Dependants (FAA 1976)

The FAA 1976 creates a separate cause of action for the benefit of the dependants of a person whose death was caused by the wrongful act, neglect, or default of another. This claim compensates dependants for the pecuniary losses they have suffered (or reasonably expected to suffer) as a direct result of the death, and separately provides for a fixed bereavement award to eligible relatives.

Who is a Dependant?

Section 1(3) FAA 1976 defines the specific categories of persons who qualify as dependants. This includes:

• The spouse or civil partner of the deceased (and former spouse/civil partner).
• A person living with the deceased as husband/wife or civil partner for at least two years immediately before the death (cohabiting partner), living “as such” throughout that period.
• Children or other descendants of the deceased (including step-children treated as children of the family).
• Parents or other ascendants of the deceased (including those treated by the deceased as parents).
• Brothers, sisters, uncles, aunts, and their issue where there was a reasonable expectation of pecuniary benefit.

Two elements are essential:

• falling within a statutory category; and
• showing actual financial dependency or a reasonable expectation of pecuniary benefit.

The FAA claim must be one that the deceased could have brought had they survived; it fails if the deceased’s own claim would have failed.

Key Term: Dependency Claim
A claim under the FAA 1976 by eligible dependants for the pecuniary support or value of services lost as a result of the deceased's death.

Types of Claims under FAA 1976

1. Dependency Claim: The principal head of claim, compensating eligible dependants for the loss of financial support and the value of services they would have received from the deceased had the deceased lived.
2. Bereavement Award: A fixed statutory award recognizing grief (a non-pecuniary, symbolic award).
3. Funeral Expenses: Reimbursement of reasonable funeral costs if paid by the dependants (if paid by the estate, the claim is under LR(MP)A 1934).

Dependency Claim Calculation

The dependency claim is calculated using the multiplicand/multiplier method familiar from personal injury damages:

• Multiplicand: Represents the annual value of the dependency. This is the net income the deceased would have contributed to the dependant(s) plus the value of services such as childcare, household tasks, DIY, and care that the deceased provided. Where the deceased and dependant lived in a shared household, the court typically considers total household net income and deducts the deceased’s own living expenses to determine the net benefit to the household flowing from the deceased.
• Multiplier: Represents the likely period of dependency, adjusted using actuarial tables (Ogden Tables) to account for contingencies and accelerated receipt. The multiplier is set by reference to the date of trial (or settlement) rather than the date of death.

The Supreme Court has confirmed the date-of-trial approach for multipliers in fatal accident dependency claims. The discount rate in England and Wales currently stands at minus 0.25%, which the Ogden Tables incorporate in the multipliers.

The dependency typically runs:

• for a spouse/partner: up to retirement age or another appropriate end-point, sometimes with staged dependency (e.g., reduced dependency after children leave home);
• for children: until they finish full-time education or would reasonably have been expected to become self-supporting.

Where there is doubt, the court sets a reasonable end-point based on evidence and general life patterns.

Under s 3(3) FAA 1976, the prospects of remarriage (or forming a new civil partnership) of a surviving spouse or civil partner must be disregarded. Under s 4 FAA 1976, benefits accruing to a dependant from the deceased's estate (e.g., inheritance) and insurance monies are not deducted from the dependency award. However, contributory negligence by the deceased will reduce dependency damages (FAA s 5, applying the 1945 Act).

Loss of services

Dependants can claim for the value of services previously provided by the deceased (childcare, housekeeping, gardening, DIY, caring for family members). The value is typically assessed by reference to commercial replacement costs, adjusted to reflect the extent and quality of the services and whether replacement services have actually been incurred.

Avoiding double recovery

The estate’s lost years claim and the dependants’ dependency claim compensate different losses and beneficiaries, so both may be awarded. Courts avoid duplication where both claims include overlapping items (e.g., pre-death losses), ensuring that the defendant is not required to pay the same quantified loss twice.

Bereavement Award

Section 1A FAA 1976 provides for a fixed sum, currently £15,120, awarded as damages for bereavement. This is not compensation for financial loss, but a statutory recognition of grief.

Key Term: Bereavement Award
A statutory fixed sum payable under s 1A FAA 1976 to a limited class of relatives (spouse/civil partner, certain cohabiting partners, and parents of an unmarried minor) for grief caused by the death.

• Eligibility: The award is strictly limited to:
  • The spouse or civil partner of the deceased.
  • The cohabiting partner (living as spouse/civil partner for at least two years prior to death, introduced by the Fatal Accidents Act 1976 (Remedial) Order 2020).
  • The parents of a deceased minor child (if the child was unmarried). Where the parents were not married to each other, the statutory scheme generally only allows the mother to claim. If both parents are eligible (e.g., married parents of a minor), the award is shared equally.

No award is available to adult children for the death of a parent, nor to parents for the death of an adult child.

• Single Award: Only one bereavement award is made per death, and if multiple eligible claimants exist, the fixed sum is apportioned as prescribed by the Act.

Funeral Expenses

Reasonable funeral expenses are recoverable under s 3(5) FAA 1976 if incurred by the dependants. If the estate pays the funeral costs, these are claimed under LR(MP)A 1934. Reasonableness extends to customary items connected with the funeral, such as a modest headstone.

Contributory Negligence and Dependency

If the deceased was partly at fault for the fatal accident, both the estate claim and the FAA dependency claim will be reduced to reflect the deceased’s share of responsibility (Law Reform (Contributory Negligence) Act 1945 and FAA s 5). The reduction is applied across the recoverable damages for each claim.

Worked Example 1.3

Chloe, aged 30, was killed instantly in a work accident due to her employer's negligence. She leaves behind her civil partner, Sarah, and her 5-year-old son, Leo. Chloe earned £35,000 net annually and spent 25% on herself. Sarah earns a minimal income. Leo was entirely dependent on Chloe. Funeral costs were £4,000, paid by Sarah.

What claims might arise under the FAA 1976?

Answer:
Claims under the FAA 1976 could include:

1. Dependency Claim: Brought by Sarah and Leo. The multiplicand would be based on Chloe's net annual contribution (£35,000 × 75% = £26,250). Separate multipliers would be calculated for Sarah (likely based on Chloe's expected working life) and Leo (likely until he finishes education, e.g., age 18 or 21).
2. Bereavement Award: Sarah, as the civil partner, is entitled to the statutory award of £15,120. Leo cannot claim this.
3. Funeral Expenses: Sarah can claim the £4,000 she paid for the funeral.

Worked Example 1.4

Jamal, aged 42, dies in a road collision partly caused by his own negligence (20%) and partly by the defendant’s negligence (80%). Jamal leaves a spouse, Rina, and two children aged 10 and 14. Jamal’s net annual income was £48,000. He contributed significant childcare and household services. The funeral cost £5,500, which Rina paid.

Answer:

• Dependency: The multiplicand would reflect Jamal’s net contribution after deducting his own living expenses; the value of replacement childcare/household services is added on a commercial rate basis. A multiplier is applied for Rina (to retirement or an appropriate end-point) and separate multipliers for each child (to the end of education).
• Contributory negligence reduction: Dependency damages are reduced by 20% to reflect Jamal’s share of fault.
• Bereavement award: Rina is eligible for the fixed award; this is not reduced for contributory negligence.
• Funeral expenses: Rina can recover reasonable funeral costs under FAA s 3(5).
• Estate claim: If there were pre-death losses (e.g., short survival with PSLA), the estate can claim them; any estate damages would also be reduced by 20% for contributory negligence.

Exam Warning

Remember that the LR(MP)A 1934 and FAA 1976 provide for distinct claims, although they often arise from the same death. Do not confuse the types of damages recoverable under each Act. Estate claims focus on the deceased's losses up to death (+ lost years), while FAA claims focus on the dependants' pecuniary losses resulting from the death. A claim for bereavement damages falls only under FAA 1976 and is strictly limited.
Also note: there is no separate head of damages under the FAA for “loss of consortium”. Modern FAA recovery for non-pecuniary impact is via the fixed bereavement award only, and dependency is concerned with pecuniary support and services.

Summary

Damages in death claims are primarily governed by two statutes:

Key Point Checklist

This article has covered the following key knowledge points:

• Claims following death caused by tort are primarily governed by the LR(MP)A 1934 and the FAA 1976.
• LR(MP)A 1934 allows the deceased's estate to pursue claims the deceased had before death, covering losses up to death (PSLA, expenses, lost earnings), mental suffering for shortened life expectancy (where aware), and potentially 'lost years' earnings.
• The ‘lost years’ claim represents the net earnings the deceased would have earned but for the fatal injury, discounted by their own living expenses, and calculated using Ogden multipliers at the trial date.
• FAA 1976 creates a separate claim for statutorily defined dependants for pecuniary losses arising from the death, with dependency assessed via multiplicand/multiplier and including the value of services.
• Remarriage prospects are disregarded and inheritances are not deducted from dependency awards; contributory negligence by the deceased reduces FAA damages.
• The statutory bereavement award is a fixed sum payable only to a limited class of relatives (spouse/civil partner, certain cohabitees, and parents of an unmarried minor), with a single award per death.
• Reasonable funeral expenses are recoverable by the party who paid them (estate under LR(MP)A or dependants under FAA).
• Estate and dependency claims can be pursued together; courts avoid double recovery for identical heads of loss.

Key Terms and Concepts

• Estate Claim
• Lost Years
• Dependant (FAA 1976)
• Dependency Claim
• Bereavement Award