The Law Commission (LAW COM No 263) CLAIMS FOR WRONGFUL DEATH Item 1 of the Seventh Programme of Law Reform: Damages November 1999 The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Carnwath CVO, Chairman Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ. When the terms of this report were agreed on 8 September 1999, Professor Andrew Burrows was also a Commissioner. The text of this report is available on the Internet at: http://www.open.gov.uk/lawcomm/ ii EXECUTIVE SUMMARY When a person is killed through the fault of another, particular persons (for example, members of the deceased’s immediate family) are able to claim compensation under the Fatal Accidents Act 1976 for losses which they suffer as a result of the death. This report (with accompanying Draft Bill) recommends reform to the availability of compensation in such cases. A key aim of our recommendations is to modernise the existing legislation, so as to bring this area of the law into line with the values of modern society. We also seek to render the law fairer and more certain than it is at present. The present law arbitrarily excludes from an entitlement to claim compensation for financial loss some people who were financially dependent on the deceased. Our proposed reform would remove that anomaly by adding a generally worded class of claimant to the present fixed list. We also consider it unjustified that the award of bereavement damages, which compensates non-financial losses (such as grief and sorrow), is currently available only to the deceased’s spouse and parents. We recommend extending the list to include the deceased’s children, siblings and long-term partner. We also propose that the quantum of the award of bereavement damages should be uplifted to £10,000 (with an overall maximum award for any one death of £30,000) and that it should subsequently be adjusted to keep pace with changing economic conditions (through index-linking). Some of our recommendations are concerned to eliminate rules which give rise to overcompensation in this area of the law. In particular, we recommend reform of the present section which requires all benefits accruing to a dependant as a result of the death to be ignored. We also recommend that the Ogden Working Party (an expert body of lawyers and actuaries including the Government Actuary) should consider and explain more fully how actuarial tables now being generally used in the assessment of damages should be applied or amended to produce accurate assessments of damages in wrongful death cases. It is for Government and Parliament to decide whether to implement by legislation the main recommendations in this report. iii [This page is intentionally blank] iv THE LAW COMMISSION CLAIMS FOR WRONGFUL DEATH CONTENTS Paragraphs Page PART I: INTRODUCTION AND SUMMARY OF 1.1-1.28 1 PRINCIPAL RECOMMENDATIONS 1. THE SCOPE OF THIS REPORT 1.1-1.3 1 2. THE BACKGROUND TO THIS REPORT 1.4-1.11 2 (1) The present law excludes deserving claims for a loss of 1.5 2 dependency (2) Problems of undercompensation 1.6 3 (3) Problems of overcompensation 1.7-1.9 3 (4) Reform to the award of bereavement damages 1.10-1.11 4 3. OVERVIEW OF OUR FINAL RECOMMENDATIONS 1.12-1.26 5 4. THE STRUCTURE OF THIS PAPER 1.27 9 5. ACKNOWLEDGEMENTS 1.28 9 PART II: THE PRESENT LAW 2.1-2.74 10 1. THE NATURE OF THE RIGHT OF ACTION UNDER THE 2.1-2.6 10 FATAL ACCIDENTS ACT (1) The liability /damages distinction 2.2-2.5 10 (2) Provisional damages 2.6 12 2. PECUNIARY LOSS: WHO CAN CLAIM AND FOR WHAT 2.7-2.14 13 TYPE OF LOSS? (1) Who can claim? 2.7-2.8 13 (2) Nature of the pecuniary loss 2.9-2.12 14 (3) Funeral expenses 2.13-2.14 15 3. PECUNIARY LOSS: ASSESSMENT 2.15-2.36 16 (1) The multiplier method 2.15-2.30 16 (a) The multiplicand(s) 2.17-2.18 17 (b) The multiplier 2.19-2.25 17 (c) Quantifying the loss of a deceased’s services 2.26-2.28 20 (d) Inflation 2.29 21 (e) Taxation 2.30 21 (2) Actual or predicted changes in the marital or family status of 2.31-2.36 22 the claimant or deceased v (a) Marriage of the deceased 2.31 22 (b) Remarriage of the dependant 2.32-2.33 22 (c) Prospects of divorce 2.34-2.35 22 (d) Adoption 2.36 23 4. COLLATERAL BENEFITS: SECTION 4 OF THE 1976 ACT 2.37-2.64 23 5. BEREAVEMENT DAMAGES 2.65-2.74 32 PART III: REFORM: GENERAL ISSUES 3.1-3.66 36 (INCLUDING THE LIST OF THOSE ENTITLED TO CLAIM FOR PECUNIARY LOSS) 1. SHOULD THE FATAL ACCIDENTS ACT CLAIM BE 3.1-3.4 36 ABOLISHED? 2. THE NATURE OF THE RIGHT OF ACTION 3.5-3.11 37 (1) General 3.5-3.6 37 (2) Remoteness 3.7-3.9 37 (3) Contributory negligence 3.10-3.11 38 3. PECUNIARY LOSS: WHO CAN CLAIM AND FOR WHAT 3.12-3.66 39 TYPE OF LOSS? (1) What type of loss of pecuniary benefit should be recoverable? 3.12-3.14 39 (2) Is the present list of persons entitled to claim under the Act 3.15-3.19 39 too restrictive? (3) Reforming the list 3.20-3.46 40 (a) Options for reform 3.20-3.23 40 (i) Extending the statutory list 3.21 40 (ii) Adding a judicial discretion to the list 3.22 40 (iii) The removal of the list 3.23 40 (b) Consultation 3.24 41 (c) Reform 3.25-3.46 41 (i) The “reasonable expectation of a non-business benefit” test 3.25-3.30 41 (ii) The “wholly or partly dependent” test 3.31-3.34 42 (iii) The retention of the list with the addition of a generally 3.35-3.46 43 worded “wholly or partly maintained” test (4) Pecuniary losses resulting from the death other than the loss 3.47-3.66 46 of benefits from the continuation of the life (for example funeral expenses) (a) Funeral expenses 3.48-3.50 47 (b) Costs incurred in settling the deceased’s estate 3.51-3.55 47 (c) Grief counselling 3.56-3.59 48 (d) Losses incurred in looking after the deceased’s dependants 3.60-3.61 49 (e) Medical expenses 3.62-3.63 50 (f) Other pecuniary expenses 3.64-3.66 50 PART IV: REFORM: ASSESSING DAMAGES FOR 4.1-4.71 51 PECUNIARY LOSS (INCLUDING SECTION 3(3) OF THE 1976 ACT) 1. SHOULD THE MULTIPLIER BE CALCULATED FROM 4.1-4.23 51 vi DEATH OR FROM TRIAL? (1) Consultation on this issue 4.1-4.5 51 (2) Reasons for regarding the present law as unsatisfactory 4.6-4.15 52 (a) Cases in which the multiplier is controlled by the duration of the 4.7-4.9 52 deceased’s ability to provide support (b) Cases in which the multiplier is controlled by the duration of the 4.10-4.14 53 claimant’s need for support (c) The Ogden tables 4.15 55 (3) Reform 4.16-4.23 55 2. QUANTIFYING THE LOSS OF A DECEASED’S SERVICES 4.24-4.26 57 3. ACTUAL OR PREDICTED CHANGES IN THE PERSONAL 4.27-4.71 58 LIFE OF THE CLAIMANT OR THE DECEASED (1) Marriage and financially supportive cohabitation 4.30-4.53 58 (a) Marriage and the prospects of marriage 4.30-4.48 58 (b) The fact or prospect of the claimant spouse entering into a 4.49-4.53 63 relationship of financially supportive cohabitation (2) Divorce and breakdown of financially supportive cohabitation 4.54-4.71 64 (a) The prospect of divorce or breakdown in a marital relationship 4.54-4.66 64 (b) The prospect of breakdown in a relationship of financially 4.67-4.71 67 supportive cohabitation between the claimant and the deceased PART V: REFORM: COLLATERAL BENEFITS 5.1-5.73 69 (SECTION 4 OF THE 1976 ACT) 1. OUR QUESTIONS TO CONSULTEES 5.1-5.20 69 2. CONSULTEES’ RESPONSES AND OUR RECOMMENDED 5.21-5.73 75 REFORMS (1) The existing section 4 should be repealed and the law 5.21-5.46 75 reformed in line with Option 6 (2) The law governing damages in respect of gratuitous care 5.47-5.55 82 should be reformed in line with our recommended reforms for personal injury cases (3) There should be recoupment of social security benefits in 5.56-5.69 85 claims under the Fatal Accidents Act, in line with the position in personal injury cases (4) There should be no statutory right to recover the value of 5.70-5.73 89 private collateral benefits PART VI: REFORM: BEREAVEMENT DAMAGES 6.1-6.65 91 1. THE ROLE OF BEREAVEMENT DAMAGES 6.1-6.7 91 (1) Should bereavement damages be available at all? 6.1-6.2 91 (2) Clarifying the purpose of bereavement damages 6.3-6.7 91 2. WHO CAN CLAIM BEREAVEMENT DAMAGES? 6.8-6.31 92 (1) Abolishing the statutory list or its exhaustive nature 6.8-6.10 92 (2) Extending the statutory list 6.11-6.31 93 vii (a) Parents and children 6.12-6.18 93 (b) Brothers and sisters 6.19-6.20 96 (c) Cohabitants 6.21-6.28 96 (d) Other relationships 6.29-6.31 99 3.