Fatal Accidents: Counting the Cost

Although not necessarily the most valuable, claims under the Fatal Accidents Act 1976 (“FAA”) will often be some of the most difficult ones for personal injury lawyers to deal with, both in terms of their sensitive (and potentially high-profile) nature as well as the quantum issues which arise. The FAA entitles dependants of a person who has died as a result of a tort to bring a claim in their own right against the tortfeasor. The claim is a creature of statute, rather than the common law, and may give rise to awards which appear out-of-kilter with familiar tortious principles.

The FAA allows for two types of claim:

1. A claim for bereavement damages, available to a narrow class of dependants (spouse, civil partner, co-habiting partner for two years or more, or the parents of a child under the age of eighteen), and awarded in a single fixed sum of £15,120 (not uprated since May 2020).
2. A claim for damages, available to a wider class of dependants (e.g. grandparents, nieces, nephews, step-children, etc), “as are proportioned to the injury resulting from the death to the dependants respectively”.

Save that the FAA expressly provides both that funeral expenses may be recovered, and that the prospects of a dependant’s re-marriage and all benefits which have accrued as a result of the death must be ignored, it contains scant guidance as to how damages should be assessed. The task of assessing the loss of dependency was historically a question for the jury, although a number of principles are now well-established in the case law.

The foundation of the claim is always the dependants’ loss of expectation of future pecuniary benefit from the deceased. As Diplock LJ put it in Malyon v Plummer [1964] 1 QB 330, at 349: “The pecuniary loss recoverable is limited to the loss of a benefit in money or money’s worth which, if the deceased had survived, would have accrued to a person within the defined relationship to the deceased, and would have arisen from that relationship and not otherwise.”

There is a well-recognised list of potential pecuniary benefits which a dependant may have lost: loss of financial support, loss of expected gifts, holidays (etc), and loss of services.

Both financial and services dependencies are fixed at the point of death and are not generally impacted by events afterwards, unless those events alter the premise on which the claim is based. An obvious example would be the death of a dependant but, more unusually, in Steve Hill Ltd v Witham [2022] PIQR P2 (CA), the removal of foster children after their foster father had died brought an end to the dependency. Conversely, the fact a dependant’s care needs had been met by moving into a care home after the death of her partner did not mean the dependency loss was curtailed:  but for the death she would have had a reasonable expectation the deceased would have continued to care for her at home (Roberts v Ford Motor Company Ltd [2026] EWHC 1787 (KB)). 

In calculating loss of financial support, the aim is to assess the net income the deceased would have received and to deduct from this the amount which the deceased would have spent on themselves. 

A well-established rule of thumb involves (1) calculating the total pooled income of the household; (2) taking 67% of this total for a dependency without children or 75% for a dependency with children; and (3) deducting from this figure the surviving dependant’s portion of the pooled income. Whilst the courts encourage adopting this rule of thumb approach, rather than descending into the nitty gritty of the family finances (see Price v Marston’s plc [2024] EWHC 1352 (KB)), it is permissible to adopt a different percentage if the evidence renders this appropriate (see, for example, Chouza v Martins [2021] PIQR Q4).

When assessing loss of financial dependency, it is also well-established that a distinction must be drawn between income which is derived from the labour and skill of the deceased and income from capital assets which have been passed down as part of the estate. Difficult issues arise in the context of family businesses inherited after a deceased’s death, particularly if they go on to thrive. Income derived from capital is likely to be narrowly construed, and a loss of dependency therefore awarded, where the income from a business has been generated in part by the deceased’s labour and skill (see Rix v Paramount Shopfitting Co Ltd [2021] 4 WLR 109). It will be open to the court to assess the loss of financial dependency in such circumstances either by reference to the share of the income from the business which would have been received had the deceased lived (as in Rix) or by reference to the cost of employing a replacement to fulfil the deceased’s role (as in Cape Distribution Ltd v O’Loughlin [2001] EWCA Civ 178 and Williams v Welsh Ambulance Services NHS Trust [2008] EWCA Civ 81). 

Conversely, the fact an inherited family business is not profitable before the deceased’s death does not mean that a dependency claim will be refused. In Denning v Stone [2026] PIQR Q1, the court allowed a claim for loss of dependency based on the cost of employing a farm manager in circumstances where the dependants had inherited an entirely unprofitable livestock farm. The court accepted that the deceased’s work in managing the farm was a benefit “in money’s worth” because it meant the value of the farm was maintained and it involved “the draw of heritage, family history and culture and the ability to maintain a lifestyle whilst still not making a profit”. 

Assessment of loss of services is often more contentious, the scope for judicial discretion being high. Whilst case law permits a range of approaches to questions such as hourly rates (e.g. NJC “home help” v full commercial rate for a particular service) and whether a discount should be applied to reflect gratuitous provision and/or replacement of services, the fundamental principle is that the courts must focus on loss resulting from the death. Thus, whilst a deceased may have been a baking enthusiast or keen gardener, and devoted much of their leisure-time to such activities, that does not mean that a dependency based on an equivalent number of hours will be made out. Similarly, in cases involving dependants who are disabled, the court’s task is to focus on the service which would have been provided by the deceased but for their death, not on the overall needs of the dependants (see, for example, Burgess v Sikorski [2026] EWHC 1245 (KB)). Care experts who may be used to giving evidence in cases involving injured claimants may struggle to focus on this question.

Cases of disabled dependants may also give rise to a claim for professional deputyship costs because CPR 21.11(9) requires a deputy to be appointed to manage the damages of a protected beneficiary exceeding £100,000. In Burgess, Deputy High Court Judge Aidan Eardley KC allowed a claim for professional deputyship on the basis this was required to provide “full compensation” for the pecuniary benefit which had been lost and was a “necessary corollary” to the claim. Recognising that professional administration of a fund was not a service which the deceased would ever have provided but for her death, and that the position under the FAA was materially different from a claim for deputyship fees in a personal injury claim brought by an injured claimant, however, permission to appeal was granted. Pending determination of the question by the Court of Appeal, the question of whether deputyship costs are recoverable as damages under the FAA remains moot. 

These authorities underline the need to identify the precise pecuniary benefit alleged to have been lost, and the evidence required to prove it. In fatal accident claims, careful early analysis of the dependency, and consideration of how it is most appropriately valued,  will often be critical to strategy.