When does a dependency claim under the Fatal Accidents Act 1976 end?
In Roberts v Ford Motor Company Ltd, HHJ Tindal (sitting as a High Court Judge) grappled with a question not previously addressed head-on by the authorities: does a dependant’s admission to a care home, following the tortious death of the family member who had cared for her, end her services dependency claim for care under the Fatal Accidents Act 1976 (“FAA“)? The court considered that it did not. The decision offers valuable clarification of the approach to the curtailment of a services dependency claim articulated by Davies LJ in Steve Hill Ltd v Witham [2022] PIQR P2 (CA). It will be of considerable interest to practitioners handling FAA claims where the deceased was a family carer.
The facts
Dennis Roberts was exposed to asbestos while working at the Defendant’s Halewood factory on Merseyside between 1968 and 1984 [9]. As a result of his exposure to asbestos, Dennis developed mesothelioma. He was diagnosed on 16 September 2025 [16]. He died on 13 October 2025, aged 74 [32]. Liability was admitted [3].
For some years before his death, Dennis had been the primary carer for his wife Eileen, who suffered from severe COPD, bipolar disorder, osteoporosis and near-total loss of vision [11-12]. The Court found that Dennis provided a level of care commensurate with a live-in carer [14]. But-for Dennis’ mesothelioma, he would have outlived Eileen and remained her primary live-in carer. She would have remained at home until her death [25].
Between Dennis’ diagnosis and his death, Eileen’s two sons provided intermittent additional support to care for her. That notwithstanding, Dennis remained Eileen’s live-in carer, albeit in a “waxing and waning” fashion given his mesothelioma, right up to his death [26, 33-34].
After Dennis died, Eileen’s health deteriorated [27]. Despite her sons’ considerable efforts, it proved impossible to sustain her care at home. She was admitted to a care home in January 2026 [1]. She moved to a different nursing home in April 2026. She will likely remain there for the rest of her life, with a life expectancy to around December 2027 [24].
The issues
Most heads of loss were agreed. Three remained live: (i) an estate claim for replacement services provided to Eileen by David and Paul in the three months before Dennis’s death; (ii) Eileen’s past FAA services dependency from Dennis’s death to trial; and (iii) her future services dependency to the end of her life.
Given the court’s finding of fact that Dennis cared for Eileen until his death, the replacement services claim (pursued by his estate under s.1 Law Reform (Miscellaneous Provisions) Act 1934) was limited to the additional support provided by Eileen’s sons.
The services dependency claim was pursued under FAA ss.1, 2, 3 and 4. To assess it, the Judge distilled the following three questions [5]:
- Is the dependency valued at the date of Dennis’ death in October 2025, or an earlier time?
- Whether the services dependency claims should be valued at the commercial or gratuitous care rate?
- Whether the services dependency claim was cut off in January 2026 when Eileen was admitted to a care home, given that she can no longer receive the care at home that Dennis provided?
The Judge assessed the caselaw and extracted five general principles [36-43]:
- The guiding principle under s.3(1) FAA is quantifying the dependants’ loss, based upon their reasonable expectation of pecuniary benefit from continuance of the life of the deceased, which depends on the facts of the particular case [37].
- Whilst cases have drawn a distinction between the methods of quantifying financial dependency and services dependency, there is overlap [38]. Courts seek to avoid double recovery and non-dependency losses [38].
- Financial and services dependencies are fixed at the point of death and are not generally affected by events afterwards, unless those events affect the continuance of the dependency [39-40].
- It is irrelevant to a dependency claim quantified as a replacement for the deceased’s services that in fact the dependant has so far not replaced them [41].
- The usual approach to calculating service dependency awards, including for care, is normally to calculate the cost of a replacement for the services on a commercial basis and then decide whether that should be discounted if provided gratuitously (often by 25% to approximate to tax and national insurance not incurred) [42].
Date of dependency
The court determined that dependency in this case was fixed at the date of death [44]. It suffices for a dependant to prove at the time of death, she had a “reasonable expectation of pecuniary advantage from the continuance of his life”, even if not receiving income or services at the time of death [45]. In any event, Dennis remained Eileen’s carer throughout his final illness.
Basis of valuation
On rate, the Court preferred the Defendant’s position that gratuitous rates applied [46-47]. An undiscounted commercial rate is generally reserved for cases where the carer has given up paid work to provide care. Here, Dennis was retired and Eileen’s sons had not sacrificed earnings before his death. A 25% discount would apply to both the replacement services claim and the dependency claim.
Curtailment of the care dependency claim following admission to a care home?
The Judge accepted that Witham showed that if the premise for a dependency claim ceases to exist after the death, that will have the effect of curtailing the dependency [49]. However, the Judge determined that Eileen was entitled to a care dependency claim notwithstanding her admission to the care home for five reasons:
- s.3(1) FAA permits damages for “the injury resulting from the death to the dependants” (emphasis added) [51]. It was necessary to consider whether the curtailing event “breaks the chain of causation of dependency from the death, rather than resulting from it” (italics in HHJ’s Tindal’s judgment). Here, the court reflected the statutory wording in setting out that “[i]t is part of Eileen’s injury resulting from his death that she will now be in a care home until she dies”. Given that Eileen had not suffered an injury per se, “injury” here is used coterminously with ‘loss’.
- There is continuity of the underlying need. Even if other events can in principle curtail a dependency by removing the premise on which it is based, the judge refused to accept that a dependant meeting their same care needs in a different way after the death curtails a care dependency [52]. The need for Eileen’s care underpinning her dependency on Dennis remained.
- Eileen’s need for care had in fact increased: in Dennis’ absence it was no longer practicable or possible for her family to care for her at home [53].
- There was no true choice: Eileen plainly did not want to live in a care home [54].
- As a fall-back position, the Judge determined that even if the care home placement could be characterised as ending the need, it constituted a “benefit” accruing as a result of the death which s.4 FAA requires to be disregarded in any event.
Accordingly, both the past and future services dependency claims survived Eileen’s admission to residential care, to be assessed to the end of her agreed life expectancy in December 2027, at gratuitous care rates.
Comment
Roberts is a welcome and carefully reasoned addition to the law on FAA services dependency. It confirms that curtailment of dependency is likely to be engaged only where a post-death event removes the underlying premise of the dependency and is not itself a consequence of the tort. Defendants seeking to rely on a claimant’s changed care arrangements will need to show that the need for the deceased’s services has actually disappeared, not merely that it is being met in a different way.
