The Dependency Claim
The court, when considering fatal accident claims agreed that the child was dependent on the her mother’s income and in once case awarded £5074 pa with a multiplier of 7 = £35,520). It is the damage to the dependent herself resulting from the death which must be assessed for which damages are to be awarded and not to anyone else. The judge dismissed the defendant’s argument in the fatal accident claim, that the a discount should be made since the husband was better off as a result of his wife’s death as he did not have to support two households. The child had a dependency of 57.5% of the joint family purse. The father’s contribution continued following the fatal accident of his wife, she was entitled to be compensated for that part which originated from her mother and has ceased. To the extent that her father has made good the loss caused by the death of the mother, it was a benefit which had to be disregarded.
The services Dependency
The child’s loss following a fatal accident of the mother, was to be measured by the loss of earnings incurred on behalf of the husband’s partner or a commercial cost of employing a housekeeper, which was assessed by a child expert. Damages under the Fatal Accidents Act is to be treated as a jury question. The judge considered that the jury in a fatal accident claim, would not assess damages on the basis that the commercial cost of employing a housekeeper had been incurred but they would “have had an eye to” to the cost.
If a husband gave up work to look after the children following the fatal accident of his wife, the value of the mother’s services may be that of the lost wage of the husband, where the husband’s wage was greater than the cost of employing a housekeeper) or in the case of Bailey v Barking & Havering Area HA  Law Society Gazette, the actual loss which the husband incurred, (where his wage was less than the cost of employing a housekeeper).
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Fatal Accidents Act 1976 & Human Rights
Within cases involving a fatal accident compensation claim, dependants of the deceased may make a financial claim under two acts. Under the Law Reform (Miscellaneous Provisions) Act 1934, the estate may make a claim for general damages caused by death, special damages incurred (such as the loss of wages) and funeral costs. This act has been extended by the Fatal Accidents Act 1976, which introduced claims by dependants for funeral expenses (if paid by the dependants), statutory bereavement damages and dependency (including financial support and loss of services).
In order to bring a successful fatal accident compensation dependency claim, an individual must fall under specified categories set out within S1(3) of the act. This section includes claims by the wife or husband of the deceased, the former wife or husband of the deceased, a civil partner or former civil partner of the deceased, any parent of other descendant of the deceased, or a child or other descendant of the deceased. A further category includes any person who was; living with the deceased in the same household immediately before the date of death; had been living in the household with the deceased for at least two years prior to the death; and was living during that period as husband and wife, or civil partner of the deceased. For information see our fatal accident compensation guide.
Although this section aimed at modernising the law in order to create a fairer outcome, there have been numerous injustices and criticisms, suggesting that the law is in an unsatisfactory state. For example, within the case of Kotke v Saffarine  EWCA 221, a fatal accident claim was rejected on the grounds that the couple had not been living together. This was due to the fact that although the deceased regularly spent time at the claimant’s house, he had retained his old property in the hope that its market value would increase. Therefore, despite their close relationship, which included having a child together, the claimant lost her claim for dependency. This was justified by claiming that the fact that they were yet to fully cohabitate together indicated an element of reluctance, and therefore a lack of future commitment.
Although this decision appears clearly unfair, a more recent case indicates at a higher level of injustice, in the form of the breach of fundamental rights. This claim was introduced within the case of Swift v Secretary of State for Justice ( EWCA Civ 193). Within this case, the claimant had been living with the deceased for around six months prior to his unfortunate death; clearly falling short of the specified 2 year period. Although the claimant’s child, who had been born after the deceased’s death, succeeded in a dependency claim, the claimant was unable to do so.
For information see our fatal accident compensation guide.
On appeal to the court, it was suggested that this decision was incompatible with the claimant’s rights under Article 8 and Article 14 of the European Convention on Human Rights. Article 8 of the convention provides the right of privacy, and the ‘right to respect for his private and family life, his home and correspondence’, which there ‘shall be no interference by a public authority’. Article 14 stipulates that the, ‘enjoyment of rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour…..or other status’. Therefore the claimant argued that the decision limited her right under Article 8, and the courts had discriminated against her in breach of Article 14. The claimant also suggested that she be regarded as within the, ‘other status’ for the purpose of Article 14 under the convention, as a generous definition should be applied.
However, the courts were reluctant to support her claim. It was argued that the act required cohabitation for 2 years or more in order to demonstrate permanence of relationship and dependency on the deceased. This was held as a ‘bright line’, in order to asses by a less intrusive or intimate standard, than would be required to asses each relationship on a case by case basis. However, wouldn’t it be fairer to asses each case on its merits rather than to apply a strict standard which clearly results in injustice?
Furthermore, it has been suggested that perhaps the act is outdated and in desperate need of reform. This was suggested by the Law Commission, as they proposed to reform the act in order to modernise it, by introducing ‘a generally worded class’. As within the modern society many couples are simply living together as husband and wife without the official status, it appears necessary to widen the rights of those in these circumstances. As is evident, from the unfortunate circumstances within Swift, the right of such claimants are clearly unfairly limited. For information see our fatal accident compensation guide.
Although the courts dismissed the appeal in Swift, I believe that this is simply a matter of policy, in an attempt to follow the will of Parliament as set out within the act. However, it is evident from the discussion above that perhaps the will of Parliament has become outdated in the context of the modern society, and perhaps puts citizen’s fundamental rights at risk of breach.