Fatal accident claims: key issues to consider

Chouza v Martins & Ors [22.06.21]

In the case of Chouza v Martins & Ors [22.06.21] the High Court was asked to examine a number of principles in a fatal accident claim.

The deceased, a passenger in a minibus, was fatally injured as a result of a road traffic accident in 2015 during which the minibus collided with a lorry being driven on the wrong side of the road. The deceased left behind a wife and four children; three sons aged 29, 24 and 20 and a daughter aged 11.

The claim came before the court for the quantification of loss sustained by the estate of the deceased pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and the value of the dependency pursuant to the Fatal Accidents Act 1976.

The court assessed three issues in detail:

  1. How to assess pain, suffering and loss of amenity (PSLA) in a fatal accident where death was almost instantaneous
  2. How to calculate the dependency ratio
  3. Who should be considered a dependant.

Pain, suffering and loss of amenity

With regards to PSLA, the court was asked to examine the appropriate award where the deceased died almost instantaneously (deemed to be a split second) following the physical injury, but had warning (deemed to be between one and five seconds) that a severe accident was about to occur. The claimant, being the deceased’s wife, sought the sum of £2,500 on the basis that the deceased would have suffered both pain from the injury, but also fear and mental anguish in the seconds leading up to the physical injury. The defendant offered no compensation for PSLA on the basis that the deceased died instantaneously and therefore suffered no ‘pain’, and that damages for ‘fear and anguish’ on its own was not recoverable.

Mr Justice Spencer stated:

...there is a distinction to be drawn between mere fear or anguish on its own and fear or anguish in association with physical injury. Although the deceased’s death followed very quickly after the physical injury, nevertheless physical injury was sustained, and the expression “pain, suffering and loss of amenity” should be taken to include the fear and mental anguish which precedes physical injury.

Whilst accepting that there should indeed be an award for PSLA, the court considered that £2,500 was too high, and as such, awarded the sum of £500.

Calculation of dependency ratio

The claimant contended that the court should depart from the conventional percentages for a dependency ratio as set out in Harris v Empress Motors [1984] because the deceased was a frugal man who spent very little money on himself.

The claimant therefore sought dependency ratios of 90% prior to retirement and 75% post-retirement, rather than 75% with dependant children and 66% without dependant children as set out in Harris.

The defendant argued that to depart from the conventional dependency ratios, a claimant must provide documentary evidence to support the level of dependency claimed.

Mr Justice Spencer stated a distinction needs to be drawn between 2 aspects: first… there is the methodology, namely whether the court embarks upon a painstaking and tedious examination of the household expenses or whether it adopts a more broad-brush percentage approach; second, if the percentage approach is to be adopted, what the appropriate percentage should be in any particular case.”

He went on to sayO’Connor LJ only intended to suggest that the absence of the painstaking or tedious approach should lead to a broader, percentage approach, but not necessarily to what those percentages should be.”

Mr Justice Spencer was of the view that whilst still adopting a broad brush approach, he was able to depart from Harris on the basis of anecdotal evidence from the family, and without sight of documentary evidence in support. He therefore awarded the claimant a dependency ratio of 85% pre-retirement and 70% post-retirement.

Who should be considered a dependant?

The court was also asked to determine whether the deceased’s three adult children were dependants for the purposes of the Fatal Accidents Act 1976. Although they had not been financially dependent on him prior to the accident, the claimant argued that nonetheless they had dependency claims. The eldest son had given money to the family following his father’s death and the younger two sons had changed their jobs and taken steps to assist with the family company after their father’s death.

The defendant argued that these claims were essentially claims for loss of earnings and the judge agreed.

Comment

This case is a helpful re-examination of some key principles in fatal accident claims, where very few fatal claims make it to court. The key points arising from this case are as follows:

  1. PSLA in a fatal claim can include damages for ‘fear and anguish’ where there is associated pain arising from an injury.
  2. The court is entitled to depart from the dependency ratios set out in Harris and apply different percentages based on anecdotal evidence from the family alone.
  3. Adult children cannot bring claims for loss of earnings as a result of a parent’s death and will not be dependants for the purposes of the Fatal Accidents Act unless they were financially dependent on the deceased prior to the accident.