In a personal injury claim involving the loss of an adult, there are various heads of damages that can be claimed. Often the most substantial head of loss is that of financial dependency – where partners and/ or family members were reliant in part or in full on income generated by the deceased.
An assessment of work and income potential and life expectancy is key to correctly valuing a fatal accident claim that includes a dependency claim. The claimant will need to prove that they were dependent on the deceased’s income and that, but for the accident, it was very likely that the deceased would have lived and continued working and producing income.
It is not always a given that the deceased would have worked until normal retirement age or lived until average old age or even that the deceased would have maintained their pre accident level of income. The Penningtons Manches personal injury team has dealt with a number of interesting cases where the ability of the deceased to provide for their dependents has been challenged or difficult to ascertain. Examples include people with other health problems, a chequered work history or in the early stages of a career or running a business.
The time for which the dependent(s) will or would have been dependent can often also be an issue. An example is a case where the surviving spouse had HIV and was seeking asylum in the UK and benefiting from the UK’s provision of retroviral drugs but the defendant’s solicitors sought to argue that her asylum application was likely to fail. She would then have to return to her home country where HIV care was very poor and her life expectancy would be significantly shortened along with her claim for dependency. This imaginative defence failed and the claimant’s expert in HIV/AIDS was able to say that, with the right drugs, her life expectancy was normal nowadays for someone with HIV.
In another claim, a claimant’s husband had a stroke a year before he was killed in a road traffic accident. He was in his fifties and had been off work for the whole year but had been in talks with his employer about returning to work when he was killed. The significant issues to be decided at trial were whether he would have gone back to work; when he would have started again; and if he would have retired early due to his underlying poor health, thus shortening the dependency claim. Fortunately, the court preferred the cardiologist’s evidence which suggested he would have worked much longer than the defendant gave him credit for as he had given up smoking completely, was taking his medication and doing his exercises as recommended by his doctor.
Charles O'Brien, senior associate in the personal injury team, comments: “The clear message for claims involving dependency is that it is important to obtain reliable and expert evidence to support the length of dependency claimed. It will be important to look at the work and health history of the deceased and their future plans. Unless their employment and income has been and was likely to remain very stable, a significant amount of evidence gathering will be needed to ascertain likely future income. Life expectancy for the deceased but for the accident and likely length of dependency of those claiming are also issues requiring evidence. Without a thorough understanding of the deceased and their family, it is easy to under-estimate the claim that should be presented.”