Report No. 111

2.2. Some salient features of the position in England.-

Attention may be usefully drawn to a few salient features of the legislative developments in England-

(a) Where the defendant's tort has caused the death of the deceased by wrongful act, neglect or default, the Fatal Accidents Act, compels the defendant to compensate the specified dependants, for their loss of support from the deceased, provided that the deceased (if he had survived) would himself have been able to sue that defendant.

(b) The executor or administrator of the deceased brings the action, but holds the damages recovered on behalf of the dependants. Any dependant entitled under the Act may bring proceedings in his own name, if the executor or administrator has not started proceedings within six months of the death of the deceased. The moneys are not diminished by death duties or by the claims of the deceased's creditors, because they do not pass into the deceased's estate.

(c) The "dependants" entitled under the Acts are the spouse ex-spouse, children or other descendants, step-children, parents, step-parents or other ascendants, brothers, sisters, aunts or uncles and issues of aunts and uncles. Certain de-facto relations are also recognised.

(d) Any of these relationships can arise by adoption, or by marriage ("affinity") and the relationship may be illegitimate or of the half-blood, (Relatives of the "half-blood" are persons related by virtue of a common ancestor, but descended from different spouses of that ancestor).

(e) The measure of damages in such a case is the extent of the dependence of the relative, multiplied by the likely period of its time of continuance.

(f ) Benefits accruing to the relative as a result of the death of the deceased are not to be taken into account in the assessment of damages.

(g) A defendant must not be made to pay damages twice over in respect of the same wrong. Hence, when the executor sues the defendant both under the Law Reform etc. Act, 1934, and under the Fatal Accidents Act, the damages awarded under each Act are calculated with reference to those awarded under the other Act,1 so that the total award involves no duplication.

1. Rosa v. Ford, (1937) AC 826: (1937) 3 All ER 359 (HL).