Fatal Accidents Act: High Court allows recovery of deputyship fees and provides guidance on care claims

Background

The case concerned the tragic death of Michelle Griffiths, aged 53, in a road traffic accident in 2021. Liability was admitted with a 30% deduction for contributory negligence. Mrs Griffiths was the carer for her husband and two adult sons both of whom had moderate learning disabilities which were severe enough that they lacked capacity to manage their own property and finances.

Key issues

The court had to determine:

a) the nature and extent of the services Mrs Griffiths provided;

b) what services would Mrs Griffiths have continued to provide had she not died;

c) how those services were to be replaced;

d) whether professional deputyship fees were recoverable notwithstanding the established principle that FAA 1976 damages compensate only for the loss of pecuniary benefits which the deceased would have provided had they survived.

Care

The claimant, the deceased’s brother, pursued a significant claim for domestic support workers, case management and future live-in care. The defendant argued the family had managed without commercial care and the sons functioned with light-touch supervision.

Whilst the court awarded a significant sum it preferred the defendant’s expert evidence, finding the “needs first” approach of the claimant’s expert did not reflect the court’s task of identifying services the deceased would actually have provided.

The award was as follows;

Recoverability of deputyship fees under the FAA

Although the judge accepted “the professional administration of a fund” for the sons “is not in itself a benefit that” Mrs Griffiths would have provided the court held they were recoverable as part of “full compensation” for loss of services under the FAA. The rationale for this decision was as follows:

a) The sons have been deprived of their mother’s care including any additional care by reason of their special needs. This “benefit is capable of being estimated in money” and full compensation must be provided for the loss of this benefit.

b) The professional deputyship fees are a necessary corollary to allow the sons to access funds intended to finance replacement services, as distinguished from costs arising from the death itself.

c) Deputyship fees, whilst much greater than case management costs for a support worker, are not “categorically different”.

d) The claim for professional deputyship fees arises because the sons have been awarded damages in excess of £100,000 each due to not benefiting from the care and support from their mother. It is therefore difficult to dismiss the claim as arising from the mother’s death.

Deputyship fees of £414,091 in total were allowed for both sons. Permission to appeal was granted on this issue given the lack of existing authority.

Conclusion

This judgment creates a new head of damage for claimants and it is likely claimants will now routinely claim deputyship fees in any FAA schedule of loss. However, until any such appeal is determined defendants should be wary of making offers in FAA claims that include deputyship fees.

Another interesting point is the court adopted a principled approach to the recovery of deputyship fees as a corollary to the services the sons had lost from their mother. This is to ensure dependants’ long-term interests are properly protected. The court was critical of the approach of the claimant’s occupational therapy expert, who assessed the dependants’ needs in a FAA 1976 claim, rather than the services the deceased would actually have provided.

Practitioners should ensure experts base their opinions on factual evidence and if experts are willing to revise their opinions to take into account what the factual witnesses say at trial, the court is more likely to accept that expert’s evidence.