The Gazette 1986

137 / 330

GAZETTE JULY/AUGUST 19
date; and (iii) who was living during the whole of that
period as the husband or wife of the deceased."9 The
right to sue is also extended by that statute to a "former
wife or husband of the deceased" which is defined to
include a person whose marriage to the deceased has
been annulled or declared void as well as a person whose
marriage to the deceased has been dissolved. Any
ascendant or descendant of the deceased is also allowed
to sue. Paradoxically, while the statute extends recovery
to the de facto dependency of the unmarried man and
woman living as husband and wife, it does not enact a
general provision according the right to sue to a
dependant to whom the deceased was in loco parentis
but who was otherwise not related to the deceased. This
is all the more surprising having regard to the fact that
recovery is allowed " to any person who was treated by
the deceased as his parent". The exclusion would,
moreover, seem to have been deliberate since recovery is
specifically allowed to "any person (not being a child of
the deceased) who, in the case of any marriage to which
the deceased was at any time a party, was treated by the
deceased as a child of the family in relation to that
marriage."
The extension of the category of competent claimants
by the Act of 1982 is to be welcomed. Apart, however,
from the case of the claimant to whom the deceased was
in loco parentis but who was not treated by the deceased
as a child of the family in the case of any marriage to
which the deceased was a party, there are other cases of
de facto dependency originating in a family-type
relationship between the deceased and the claimant
where it is considered that justice requires that recovery
be allowed. One may instance, for example, the case of
two elderly ladies who, through friendship, have
become dependent on each other although not kinsfolk.
To extend liability to embrace such a dependency may
avoid real hardship and injustice. Reasoning by analogy
with the test adopted by Lord Wilberforce in Anns -v-
Merton London Borough Council10 as to the novel
situations in which a duty of care in the tort of
negligence would be recognised, one may argue that
prima facie one who sustains injury resulting from
death which was reasonably foreseeable as a
consequence of the wrong of the defendant is entitled to
sue in respect of that damage, unless countervailing
policy considerations dictate that the defendant shall
enjoy an immunity from such prima facie liability. To
limit recovery in respect of economic loss resulting from
tortiously occasioned death to persons who enjoyed a
family-type relationship with the deceased and to loss
originating in such relationship" is understandable.
Theirs is a special dependency and usually it is
unrealistic to expect them to insure against the loss of
their bread-winner precisely because the relationship is
primarily familial rather than an economic-business
relationship. The same considerations, moreover, which
have dictated the recognition of liability in the case
where there is a loss of dependency originating in the
family relationship by next-of-kin equally argues for
the recognition of liability where the relationship
between the deceased and the claimant, while not one of
kindred, is primarily a family-type relationship in
respect of loss of financial expectations originating in
such relationship. A general statutory provision giving
effect to this criterion of recovery might be devised
utilising the requirement that the claimant should have
resided in the same household as the deceased for a
period prior to the death and that during that period the
deceased should have treated the claimant as a member
of the family of the deceased. Such a general provision
would not, however, eliminate the desirability of
enumerating specific relationships which give an
entitlement to sue, for where such a specified
relationship exists title to sue is (rightly) established
without the necessity of adducing proof of the
requirements of the general provision.
The number of relationships which are not recognised
by Part IV of the Act of 1961 as giving an entitlement to
sue demonstrates the urgent need for reform of the
statute in this area, including as they do the following,
namely: (i) a person who, outside matrimony, has lived
with the deceased as man and wife; (ii) a person whose
marriage to the deceased has been dissolved or annulled;
(iii) all relations by affinity other than stepparents and
stepchildren; (iv) uncles and aunts and issue of brothers,
sisters, uncles and aunts; (v) ascendants and
descendants of the deceased beyond the second degree
of consanguinity; (vi) a person who lived in the same
household as the deceased immediately prior to his
death for a substantial period of time and whom the
deceased during that period treated as a member of the
family of the deceased.
It is worth considering in the context of a claim under
Part IV of the Civil Liability Act, 1961 the position at
the moment of an unmarried woman who has lived with
the deceased as man and wife prior to his tortiously
occasioned death. If there are no children of the union
then there is no avenue whereby the court may take
some account of the woman's predicament. In the case
of the unmarried mother, however, some allowance can
be made for the mother's loss of dependency in an
action brought by or on behalf of the dependent
children of the deceased, as occurred in K. -v- J.M.P.
Co. Ltd.12. There, the father of three illegitimate
children had lived with their mother for seven years
until his death in 1971 during which time the children
had been born of the union. The parents had never
married and the plaintiffs, therefore, were confined to
the three illegitimate children of the union, the mother
not being entitled to sue at English Law at that time
although, as Stephenson, L.J., remarked, she had "lost
just as much by their father's death as if she had been
his widow."13 The father had been a generous man,
providing all the necessaries of life for the mother and
the children together with toys, long holidays in Ireland
(from where he had emigrated) and trips to relations in
Leeds. Liability was admitted and the defendants had
accepted that the children's pecuniary loss resulting
from their father's death included the children's share
of the housekeeping and holiday food, the cost of their
own air fares and outings, the whole cost of their clothes
and toys and the whole cost of rent, television and
washing-machine, instalments payment of which had
been made by the deceased. The trial judge, Forbes J.,
however, had accepted the claim made on behalf of the
children on the basis that "during the lifetime of the
father he provided for them to be looked after in the
house, and accompanied on holidays and outings by
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