This document summarizes the key principles of the Fatal Accident Act and Law Reform (Miscellaneous Provision) Act regarding claims for wrongful death. It outlines who can claim, the basis for recovery being financial dependency, calculation of damages, limitation periods, and differences in how damages are assessed under the two acts. Claims under the FAA are for dependents, while claims under the LR(MP)A are for the deceased's estate.
Original Description:
Juisdiction : Jamica
Title Fatal Accident Claims Presentation
This document summarizes the key principles of the Fatal Accident Act and Law Reform (Miscellaneous Provision) Act regarding claims for wrongful death. It outlines who can claim, the basis for recovery being financial dependency, calculation of damages, limitation periods, and differences in how damages are assessed under the two acts. Claims under the FAA are for dependents, while claims under the LR(MP)A are for the deceased's estate.
This document summarizes the key principles of the Fatal Accident Act and Law Reform (Miscellaneous Provision) Act regarding claims for wrongful death. It outlines who can claim, the basis for recovery being financial dependency, calculation of damages, limitation periods, and differences in how damages are assessed under the two acts. Claims under the FAA are for dependents, while claims under the LR(MP)A are for the deceased's estate.
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Prepared by
Hasani P.J. Haughton
Case Attorney Arises under section 3 of the Fatal Accident Act When the death of a person ◦ shall be caused by wrongful act, neglect or default; ◦ the act, neglect or default is such as would (if death had not ensued) have entitled the party 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; ◦ Even if the death shall have been caused under such circumstances as amount in law to felony Section 4 requires that the benefit of the claim is for the near relations of the deceased. Near relations to the deceased are wife, husband, parent, child, brother, sister, nephew, niece. Parent includes father, mother, grandfather, grandmother, stepfather and stepmother. Child includes son, daughter, grandson, granddaughter, stepson and stepdaughter The basis of recovery of is that there is a near relationship, and actual dependency on the person deceased. Action is based solely upon financial loss and no sum can be awarded under the act for mental distress or the loss to society of the deceased. Davies v Powell Duffryn Associated Collieries Ltd: ◦ There is no question here of what may be called sentimental damage, bereavement or pain and suffering. It is a hard matter of pounds, shillings and pence, subject to the element of reasonable future probabilities. Dependents must prove actual dependence at or before the time of death or a probability that they would have received some support from him in the future if he lived. Mere possibility that a child when grown up may contribute to the support of his parents is not enough. (Barnett v Cohen) Loss of support to some degree is essential to success under this cause of action. In the case of Taff Vale Railway Co v Jenkins it was held that it was not necessary for the plaintiff to show that the deceased had been earning money and had contributed to the support of the plaintiff before death, provided that there was reasonable expectation of future pecuniary advantage to the plaintiff had the deceased lived. Brown & Tugman v Douglas anors [2013] JMSC Civ 205 held that a mere contribution by the deceased is not maintenance. Davies v Taylor - Claim under Fatal Accidents Act by a wife, who had deserted the deceased husband. Husband had begun divorce proceedings against her. Held that she had no claim because she could show nothing more than a speculative possibility of a reconciliation, and hence a pecuniary gain, had the husband lived. Section 4(1) (a) of the Act provides that any action brought in pursuance of the provisions of this Act shall be brought by and in the name of the Personal Representative. Section 4(1) (b) of the Act provides that where there is no Personal Representative or where no action is commenced within 6 months of the date of death of the deceased person the claim may be commenced by or in the name of all or any of the near relations of the deceased person. The object of the Fatal Accidents Act is to provide a right of action to dependents of a deceased person against the person liable in law for his death and the object of the Law Reform (Miscellaneous Provision) Act is to provide a right of action to the personal representatives of a deceased person for the benefit of the deceased’s estate in circumstances wherein, the deceased had died due to the unlawful actions of another. Different principles of law are applicable to the assessment of damages due. A claim for “Lost Years” also known as Loss of Expectation of Life cannot properly be maintained under the Fatal Accident Act. A claim for funeral expenses can be recovered under the Fatal Accident Act if it were incurred by the near relations. One cannot recover as a near relation of the deceased for funeral expenses, unless that near relation is otherwise entitled to recover damages under the FAA. If the funeral expenses were paid for by the estate of the deceased then the claim would need to be through the LR(MP)A. Under the FAA the court will award damages to each of the near relations of the deceased person as the court thinks appropriate based on the actual or reasonably expected financial loss to the dependent. Under the LR(MP)A the judgment sum is for the estate and should be distributed according to the rules of Intestacy or directions in a Will. The Fatal Accident Act provides a limitation period of 3 years from the date of death. The FAA further provides for an application to extend time where the interest of justice requires it. In applying for an extension of time, the application must show that there is a good reason or explanation for the delay together with evidence the Court can rely on to exercise its discretion, this evidence should be relevant and admissible. Factors the court may consider in exercising its discretion to extend time are: ◦ Reason for the delay ◦ The plaintiff’s ignorance of his legal rights ◦ Extent to which the claimant acted promptly ◦ Cogency of evidence ◦ Likely prospect of success ◦ Consideration of the prejudice to the defendant in putting forward his defence ◦ The inability of the defendants to meet a judgment is not a legitimate reason for preventing a blameless plaintiff from pursuing a civil claim. Under the LRMPA there are two schools of thought as it relates to the limitation period: 1. The action must be commenced within 6 years from the date of death. 2. The action is for the benefit of the estate and time starts to run from the date of the grant of administration. Under the FAA the calculation of a multiplicand is a question of pure fact and to be determined by the evidence. A pre trial financial loss is to be calculated from date of death to date of trial. A post trial loss is to be determined Interest on the pre trial loss should be awarded from date of death to date of trial For the purpose of calculating the future loss the multiplicand should be the figure estimated to be loss as at date of trial. No interest should be awarded on future loss. Under the LR(MP)A damages are calculated as follows: ◦ ascertain from credible evidence the net income of the deceased at the date of death; ◦ where a relatively long period has elapsed between date of death and trial, the deceased’s net income at date of trial must be estimated by reference to the net income being earned at the date of trial by persons in corresponding position to that held by deceased at the time of his death or by persons in a position to which the deceased might reasonably have attained. The average of the net income of the deceased for the pre-trial period. Calculate the total expenditure used by deceased on himself exclusively Add a portion of the joint living expense to the sum used exclusively Calculate the total of the expenses as a percentage of the net income received at date of death. Reduce the average net income by the percentage calculated above to arrive at multiplicand. Multiply by number of years (multiplier) between date of death and trial to arrive at pre trial loss. For the post trial loss reduce the current net salary by the percentage of expenses as at date of death to calculate multiplicand. Reduce the loss years by the number of pre trial years (multiplier. Multiply the Post trial multiplicand by the number of years left after trial for the Post Trial loss Add the pre trial and post trial amount to arrive at loss of income for the estate. Refer to the case of Vinston Miller (Administrator of the Estate of Weston Miller, the deceased) v Caribbean Producers Jamaica Ltd & Kirk Hillary 2012 HCV 00345, pages 6 – 11.