Where a personal injury claim brought by a claimant before his death was discontinued after his death, a dependency claim under the Fatal Accidents Act 1976 was not thereby extinguished. If at the moment of his death, an injured claimant had an existing cause of action arising from the wrongful act which caused his injuries and if he died as the result of the same wrongful act, a second cause of action for the benefit of his dependants came into being at that moment. Also at the moment of death, the existing cause of action was transmitted to his estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. Different limitation periods govern each action. The personal injury action is governed by ss11 and 14 Limitation Act 1980. The dependency claim is governed by s12 Limitation Act, which provides that the claim must be brought within three years of the date of the death.

Comment: following the claimant’s suicide, brought on by depression caused by a motor accident, the solicitor with conduct of his personal injury claim discontinued the action without instructions from his widow. Furthermore, he failed to advise her of the possibility of a claim for damages for bereavement or loss of support for the children. Although he did not owe the children a duty of care, Smith LJ noted in her judgment that any solicitor who is consulted by a person who is responsible for bringing a dependency claim on behalf of children has a professional responsibility to advise the administratrix in such a way as will seek to ensure that the claim for the benefit of the dependants is brought with proper expedition.