Charlotte Marie Keating v Ali Abdisalan & Anor

On a strike-out application, pleaded facts are taken at their highest. The court should not strike out where the legal issue is developing or factual findings at trial may affect the result. A cause of action passes to an estate under the Law Reform (Miscellaneous Provisions) Act 1934 only if it was vested in the deceased at death. Damages cannot compensate an estate for a loss which the deceased never suffered. A right to bereavement damages is expressly excluded from transmission to the estate. A claim for future services which had not yet been lost at death therefore cannot survive.

The claimant, as administrator of two estates, brought claims arising from a fatal road accident under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. The second defendant applied to strike out two elements of Mr Birtles’ estate claim: a common law claim for the lost opportunity to claim bereavement damages and a substantial claim for the future cost of services which Mrs Birtles would have provided. The central issues were whether either claim was vested in Mr Birtles at death and, if so, whether it survived for the benefit of his estate.

1. Strike-out approach. The court considered the pleaded case at its highest. Strike-out was appropriate only if the pleaded facts, even if true, disclosed no legally recognisable claim. The application should not ordinarily be granted where the relevant law was developing or factual findings at trial might determine the issue.
2. Bereavement damages. Mr Birtles had a right to claim the statutory bereavement award when he died. Section 1(1A) of the Law Reform (Miscellaneous Provisions) Act 1934, however, expressly provides that a right to claim under section 1A of the Fatal Accidents Act 1976 does not survive for the benefit of the estate. The lost-opportunity claim consequently had no prospect of success and was struck out.
3. Future services. No claim for the future loss of services was vested in Mr Birtles at death. He had suffered no such loss during the 12 days between the accident and his death. If any claim had existed, it would have been limited to loss actually suffered during that period. The court would not undertake a fictional assessment of loss that had never been suffered.
4. Authorities. The approach in Williamson v Thornycroft was applied: subsequent events may inform the assessment of damages, but compensation reflects actual rather than notional loss. Haxton v Philips Electronics UK Limited was distinguished because the claimant there had already suffered a measurable diminution in an existing dependency claim and remained alive. The discussion of lost-years authorities and the pending Supreme Court proceedings in CCC did not alter the conclusion.
5. The relevant parts of the claim were struck out. The court did not decide whether section 1(2)(a)(ii) of the 1934 Act would independently exclude the services claim, because the necessary precondition—a surviving cause of action—was absent.

First-instance decision on an application by the second defendant to strike out two heads of an estate claim.