Reader & Ors v Molesworths Bright Clegg Solicitors

Under section 1 of the Fatal Accidents Act 1976, a dependency cause of action arises at death if the injured person then had an existing cause of action for the wrongful act causing the death. It is separate from the deceased’s personal injury cause of action. Later settlement or discontinuance of the personal injury claim does not ordinarily extinguish the dependency claim, although settlement terms must be construed to determine what claims they cover. A solicitor’s duty of care requires a retainer and is ordinarily owed to the client, not automatically to dependants. Mitigation is relevant only after loss caused by the breach has been established.

The appeal arose from preliminary issues in a solicitor’s negligence claim following Mr Peter Reader’s death after a road accident. His solicitor had discontinued existing personal injury proceedings without instructions from a personal representative. The deceased’s widow and children claimed that this prevented dependency claims under the Fatal Accidents Act 1976 from being brought.

HH Judge Bullimore held that the dependency claims were separate and unaffected by the discontinuance. He also held, on a hypothetical basis, that no direct duty was owed to the children, and declined to determine mitigation issues. The central questions were whether the dependency claims survived, whether duties were owed to the children, and whether failure to bring fresh proceedings raised mitigation or causation issues.

1. Appeal dismissed. The dependency claims were not extinguished by the discontinuance and compromise of the deceased’s personal injury proceedings.
2. Section 1 of the Fatal Accidents Act 1976 requires the statutory question to be assessed at the moment of death: would the injured person, assuming death had not ensued, have been entitled to maintain an action and recover damages? Where an existing personal injury cause of action remained alive, a separate dependency cause of action arose at death. The personal injury cause of action was simultaneously transmitted to the estate under the Law Reform (Miscellaneous Provisions) Act 1934.
3. The two actions are legally distinct and subject to different limitation regimes. The personal injury claim is governed by sections 11 and 14 of the Limitation Act 1980; the dependency claim is governed by section 12. Earlier authorities concerned claims satisfied before death and therefore did not govern this case. A post-death settlement must be construed to determine whether it covers the existing dependency claim as well as the estate’s claim.
4. A solicitor’s duty of care depends on a retainer and is owed to the client. A retainer by the widow as administratrix could require advice about both claims and the proper progression of the dependency claim, but did not automatically create a direct duty to the children.
5. The court cautioned against deciding duty as a preliminary issue without sufficient factual findings. Mitigation only arises after loss caused by the breach is established. As the dependency claim remained intact, the claimants had suffered no pleaded loss caused by the solicitor’s conduct, so the mitigation issue was rightly left undetermined.
6. Lady Justice Smith added that a solicitor may have a professional responsibility to advise an administratrix so that a dependency claim for children is brought with proper expedition, even where no direct legal duty is owed to the children.

• Court of Appeal (Civil Division): [2007] EWCA Civ 169; appeal from the judgment of HH Judge Bullimore on preliminary issues, dismissed.
• Sheffield County Court: HH Judge Bullimore held that the dependency claim was separate from the personal injury claim and unaffected by its discontinuance. He held that no direct duty was owed to the children and declined to determine mitigation and causation issues.