Settlement before death deprives dependents

Thompson v Arnold [2007] All ER (D) 38 (Aug)

A dependent is precluded from pursuing a claim for dependency under the Fatal Accidents Act 1976 where the deceased has settled his or her outstanding claim for damages against the defendant during his or her lifetime. Section 1(1) of the Act permits the dependent to maintain an action for damages under the Act only if the deceased would (if death had not ensued) had been entitled to maintain an action and recover damages in respect of it from the tortfeasor. In the present case, Mrs Thompson, when she had only a short time left to live, commenced her claim for clinical negligence against her doctor who had incorrectly diagnosed a lump in her breast as benign,. She claimed loss of earnings up to her expected date of death, but did not include a claim for earnings during the lost years. She accepted £120,000 in full and final settlement of her claim, which was embodied in a court order. As a result, Mrs Thompson’s husband and her two daughters were unable to bring a claim against the defendant as dependents under the Act. The judge said that in order to protect her dependents, Mrs Thompson should have sought an interim payment of equal value to a lifetime award with an adjournment, so that the remainder could be dealt with after her death.