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The Fatal Accidents Act: calculating dependency claims for children in ‘modern’ families

Posted: 12/06/2018

The conventional approach to calculating dependency is changing from the traditional assumptions made in 1984. At this time, the courts adopted the approach set out in the case of Harris v Empress Motors where it was decided that for two cohabiting married parents who lived together with one child or more, the dependency percentage is 75%, or with no children, 66%.

In our experience as injury solicitors, exceptions are the rule as family dynamics do not always fit the Harris v Empress model. Anomalies arise where parents are divorced, in the process of divorcing, or in the event that there is a prospect of reconciliation. In this instance, the test is not one of the balance of probabilities, but there has to be a realistic expectation, supported by good evidence, that the couple might have achieved a reconciliation, which is calculated on a percentage basis.

There is very little in the fatal accidents act to guide parties as to the correct approach in the case of single parent families where the primary caring parent dies. The typical 75% or 66% calculations are likely to be arbitrary in these circumstances and, because of the absence of statutory guidance, this gives parties plenty of scope to present bespoke calculations based on actual data of what was spent on whom.

Another question that arises in cases of single parent families is what happens when the primary caring parent dies and that care is replaced by the previously absent parent. Does the gain outweigh the loss? In the case of Stanley v Saddique [1992], the dependant child received unsatisfactory care when living with her mother, but after her death the child moved in with the previously absent father and received, as it turned out, a better quality of care than she did with her mother. The court had to consider whether this extinguished the services dependency claim and, by virtue of section 4 of The Fatal Accidents Act, it decided that it did not because the question is ‘what has the claimant lost as a result of the death?’. Therefore care received after death is not taken into account.

In the event of the death of both parents, it is generally inappropriate to apply the conventional approach set out in Harris v Empress Motors. In these circumstances, evidence of actual expenditure by the parents is the preferred method, as in the case of Dhaliwal v Hunt [1995]. However, the subsequent question relating to adoption has led to what many consider an anomalous decision in the case of Watson v Willmott [1991] where the judge circumvented section 4 of the act. He stated that the adoption was not as a result of the child’s parents’ deaths, but rather as a result of the legal adoption process and the legal obligation of the adopting parents to provide for the child.

Unlike many other types of litigation, claims under the Fatal Accidents Act do not require, as might be expected, each and every dependant to be named as a claimant in the proceedings. Although section 2(4) lays down special requirements for all dependants to be named in the particulars of claim, section 2(2) states that all or any of the dependants need to be named as claimants in the action.

The law for dependency claims following a fatal accident is full of exceptions and special situations that require careful and detailed analysis of what are usually unique family situations needing an expert, bespoke approach to the claim. The specialist clinical negligence and personal injury teams at Penningtons Manches have extensive experience in working with these quirks of the law in order to recover substantial damages for families and dependants who have lost loved ones.

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