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.