Recovery of expenses with fatal accident claims
The law is contained in the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.
1. Expenses incurred before death
The LRMPA allows for recovery of funeral expenses under section 1(2)(c) which provides that the decedent’s estate claim them. In addition, other expenses may also be claimed under the LRMPA. These are limited to what the decedent himself could have claimed had he lived. Section 1(1) of the LRMPA states:
Subject to the provisions of this section regarding the death of any person after the entry into force of this Act, all causes of action subsisting against him shall survive against or, as the case may be, for the benefit of his estate.
2. Definition of “funeral expenses”
“Funeral expenses” are not defined in any of the laws. The jurisprudence does not give us an exhaustive definition either. What is clear from the case law is that in claims under the Fatal Accidents Act of 1976 and the LRMPA of 1934, funeral expenses must be ‘reasonable in all the circumstances’. The test appears to be the same under both laws. Relevant circumstances will include the decedent’s social position, occupation, and racial origin (Goldstein v Salvation Army Guarantee Society [1917] 2KB 291; Hart vs. Griffiths-Jones [1948] 2 All ER 729 into 731 by Streatfield J; Gammell vs. Wilson [1982] AC 27, [1980] 2 All ER 557, CA).
Some examples of what has been considered (a) a funeral expense and (b) a reasonable or unreasonable funeral expense through case law include:
reasonable
Saint George vs. Turner [2003] CLY 936 – an exceptional case in which damages were recovered for funeral expenses in Japan in excess of £50,000, including a family Buddhist altar and accessories; funeral expenses; the cost of a Buddhist name change ceremony for the dead; payments for attendance of Buddhist monks; a tombstone and works; a memorial day reception; and an anniversary reception. A Japanese woman had been murdered by her English husband. McGregor on Damages comments on this case “This is believed to be too extreme to be defended; even murder cannot influence the level of funeral cost recovery.”
Smith v Marquesa/Bowbelle (January 27, 1993) – A reception was allowed as reasonable. ‘A claimant cannot ignore the social obligation to provide some refreshments to guests.’ Social decency must be observed and the £400 spent was recovered. See also St George v Turner (May 10, 2003, unreported). Contrast Gammell vs. Wilson [1982] CA 27, CA
Gammell v Wilson (at first instance) – a headstone or tombstone would be considered a reasonable expense. In addition, reasonable funeral expenses may include burial costs in another country if that is where the deceased is from (see also Saint George vs. Turner about)
Schneider vs. Eisovitch [1960] 2QB430 – the expenses of two relatives who traveled to France to organize the return of the body (of the brother) were reasonable. Paull J ruled that the services provided had to be necessary and as the costs would have been incurred anyway, they were reasonable.
Hart vs. Griffiths-Jones [1948] 2 All ER 729 – Embalming the body of a four-year-old was a reasonable expense.
Goldstein v Salvation Army Guarantee Society [1917] 2KB 291 – the cost of a tombstone was reasonable.
Unreasonable
Harding vs. Scott-Moncrieff [2004] EWHC 1733 (QB) – Burial expenses did not include funeral expenses, attorneys’ fees, accountants’ fees, and an appraiser’s report.
Quainoo v Brent and Harrow Area Health Authority (1982) 132 NLJ 1100 Y Gammell vs. Wilson [1982] CA 27, CA– the expenses of a wake too elaborate failed.
Gammell vs. Wilson [1982] CA 27, CA – The Court of Appeal upheld, with some hesitation, the trial judge’s award of £595 for a headstone in respect of a funeral which had taken place in 1976. One member of the court noted that “the tombstone… in this case was very close to the boundary between a tombstone and a monument”. The Court of Appeal approved the approach that “there is a distinction between a tombstone that tops, describes and marks the grave, which is part of the funeral expenses, and a memorial, which is not.” The expenses of an elaborate wake and mourning clothes were irrecoverable.
Stanton v Ewart F Youldon Ltd [1960] 1 All ER 429, [1960] 1 WLR 543 – spending on a memorial or monument was unreasonable in the circumstances, but a simple headstone would be allowed. McNairJ said:‘The legal position is that a stone on a grave can be considered as part of the funeral costs if it is a reasonable expense for the persons in the position of the deceased and for the relatives who are responsible for ordering the stone. ; but insofar as it is a mere memorial raised as a sign of love and affection, then it should not be included.in”
The claim also included £5 paid to the minister for attending the funeral, £8 for two additional limousines at the funeral and £5 for bringing the body home. These payments were also included as reasonable funeral expenses in the damages recovered.
Unfortunately, there is no definitive definition of funeral expenses or, more importantly, reasonable funeral expenses. When considering these elements in a fatal accident claim, we will try to consider the case law and the two acts as a guide, and issue a reasoned judgment based on it.