PART I INTRODUCTION 1.1 This is the seventh consultation paper in our “examination of the principles governing and the effectiveness of the present remedy of damages for monetary and non-monetary loss, with particular regard to personal injury litigation”.1 The current Fatal Accidents Act reached the statute book in 1976 and was substantially amended by the Administration of Justice Act 1982, which introduced a number of reforms based on the recommendations of the Law Commission2 and of the Pearson Commission.3 We were keen to consider once more damages for wrongful death because aspects of the present law remain controversial and difficult. For example, there is continuing controversy over damages for bereavement, which were made available for the first time in 1982.4 Other reforms introduced in 1982 have, in some respects, had more far-reaching effects than appear to have been intended.5 And there is continuing dissatisfaction over the statutory list of dependants, which many see as too restrictive.6 In addition to these areas of concern, this paper presents us with the opportunity to examine coherently and in depth an area of law which has developed in a piecemeal fashion with a view to eradicating any anomalies and inconsistencies that have been created. 1.2 In addition to a claim under the Fatal Accidents Act, an action can often be brought against the defendant by the personal representatives of the deceased for the benefit of the estate of the deceased under section 1 of the Law Reform (Miscellaneous Provisions) Act 1934. Unlike the Fatal Accidents Act, the right of action of the estate is a survival of the action that the deceased would have had against the wrongdoer, and the action therefore survives irrespective of whether the death was caused by the wrong. 1.3 The estate can claim against the wrongdoer for the pain, suffering and loss of amenity suffered by the deceased, for the loss of earnings before death, for the 1 Item 2 of our Sixth Programme of Law Reform (1995) Law Com No 234 (formerly Item 11 of our Fifth Programme of Law Reform (1991) Law Com No 200). The other papers and reports so far published are Structured Settlements and Interim and Provisional Damages (1992) Consultation Paper No 125; (1994) Law Com No 224; Aggravated, Exemplary and Restitutionary Damages (1993) Consultation Paper No 132; Personal Injury Litigation: How Much is Enough? (1994) Law Com No 225: Liability for Psychiatric Illness (1995) Consultation Paper No 137; Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140; Damages for Personal Injury: Medical, Nursing and Other Expenses (1996) Consultation Paper No 144; and Damages for Personal Injury: Collateral Benefits (1997) Consultation Paper No 147. This last paper has been published on the same date as this paper. 2 Personal Injury Litigation - Assessment of Damages (1973) Law Com No 56, paras 257, 259, 262(c), 172-180. 3 Royal Commission on Civil Liability and Compensation for Personal Injury (1978) Cmnd 7054 (“The Pearson Commission Report”), Vol I, para 404. 4 See paras 2.63-2.74 and 3.126-3.180 below. 5 See paras 2.43-2.60 below. 6 See paras 2.12-2.16 below. 1 deceased’s medical and nursing expenses and funeral expenses.7 An accident victim whose life expectancy has been reduced can claim for the loss of prospective earnings in these “lost years”.8 As originally enacted, the Law Reform (Miscellaneous Provisions) Act 1934 allowed the estate to recover for the lost years.9 This made it possible for a defendant to face a claim for lost earnings in the lost years and also a claim under the Fatal Accidents Act for a loss of a dependency flowing from those earnings. This possibility of double compensation was regarded as unacceptable and, by section 4 of the Administration of Justice Act 1982, Parliament intervened to exclude a claim for the lost years from claims made under the Law Reform (Miscellaneous Provisions) Act 1934. 1.4 In this paper, we are not concerned with the survival of the victim’s claim under the 1934 Act except to the limited extent that it is relevant to the Fatal Accidents Act 1976 (for example, in Part III we shall consider the radical argument that the Fatal Accidents Act should be abolished in favour of extending the 1934 Act and we also consider whether, contrary to the present law, bereavement damages should survive for the benefit of the claimant). We have looked at the survival of damages for non-pecuniary loss in our consultation paper on Damages for Personal Injury: Non-Pecuniary Loss.10 1.5 Part II of this paper surveys the present law relating to fatal accidents.11 It contains an examination of, for example, the nature of the right of action under the Fatal Accidents Act 1976, the dependants who can benefit from such an action, the types of pecuniary loss that can be compensated, and the existence and scope of bereavement damages. In Part III we discuss the options for reform and our provisional recommendations. Part IV contains a summary of recommendations and consultation issues. Appendix A looks at the equivalent law in other jurisdictions and Appendix B sets out the relevant sections of the Fatal Accidents Act 1976, as amended by the Administration of Justice Act 1982 and the Damages for Bereavement (Variation of Sum) (England and Wales) Order.12 It also contains section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 as amended by the Administration of Justice Act 1982, and former versions of the Fatal Accidents Act. 1.6 We are very grateful for the help received from the Lord Chancellor’s Department, who gave us the use of the responses to its 1990 consultation paper Damages for Bereavement: A Review of the Level. We would also like to thank the following for the assistance given to us in the preparation of this paper: Lord Justice Otton, Mr Justice Girvan, Mr J W Davies of Brasenose College, Oxford, 7 Law Reform (Miscellaneous Provisions) Act 1934, s 1(2). 8 Pickett v British Railway Engineering Ltd [1980] AC 136. 9 Although this was not made clear until Gammell v Wilson [1982] AC 27. 10 Damages for Personal Injury: Non-Pecuniary Loss (1995) Consultation Paper No 140, paras 4.126-4.137. 11 We do not examine in detail in this paper the limitation periods applicable to claims under the Fatal Accidents Act 1976. These will be considered in our current project on limitation periods. 12 SI 1990 No 2575. 2 Timothy Scott QC, Ronald Walker QC, the Scottish Law Commission, the Association of British Insurers, the Association of Personal Injury Lawyers, the Civil Litigation Committee of the Law Society, the Department of Social Security and the Office of National Statistics. 3 PART II THE PRESENT LAW 1. THE NATURE OF THE RIGHT OF ACTION UNDER THE FATAL ACCIDENTS ACT (1) The liability/damages distinction 2.1 Prior to 1846, the dependants of a deceased person, who had died as a result of another’s wrong, were unable to bring an action for damages for the loss that they suffered as a result of that wrongful death.1 They had no right of action unless they had a cause of action which existed independently of the wrong causing the death.2 Parliament intervened with the Fatal Accidents Act 1846, which gave dependants an action where the death was caused by the wrongful act of another. Known as Lord Campbell’s Act, the statute was a response to fatalities on the railways.3 Parliament developed the scope of the Act with further legislation in 1864 and 1959.4 The statutes were consolidated in the Fatal Accidents Act 1976.5 Substantial amendments were made by the Administration of Justice Act 1982. The current law is contained in the Fatal Accidents Act 1976, as amended (hereinafter often referred to as “the Fatal Accidents Act” or “the 1976 Act”). 2.2 Liability under the Fatal Accidents Act 1976 is governed by section 1(1), which states: 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. 2.3 The effect of section 1(1) was succinctly explained by Lord Denning MR in Gray v Barr:6 If [the deceased] had lived, ie, only been injured and not died, and living would have been entitled to maintain an action and recover 1 Baker v Bolton (1808) 1 Campb 493; 170 ER 1033. See also Admiralty Commissioners v SS America [1917] AC 38. At one time homicides were criminal offences and the goods of a defendant were seized by the Crown. There would have been little point in the dependants bringing an action. Furthermore, under the common law doctrine of merger, a civil action would not lie where a person had died as a result of a felony. See Stuart Speiser, Recovery for Wrongful Death (1966) p 5. 2 Eg Jackson v Watson & Sons [1909] 2 KB 193 (CA). A wife died of food poisoning from food bought by her husband. In an action for breach of contract he recovered for the loss of her services. 3 Eg Hansard 21 August 1846 vol 88 col 926 (Lord Campbell). 4 Fatal Accidents Act 1864, Fatal Accidents Act 1959.