The Gazette 1986

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 Council 10 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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