Fatal Accidents Act dependency claims: expansion at the margins?

Three recent contributions illustrate a common theme in Fatal Accidents Act (“FAA”) litigation: the High Court decisions in Roberts v Ford Motor Company Ltd [2026] EWHC 1787 (KB) and Burgess v Sikorski v Hertsmere Borough Council [2026] EWHC 1245 (the link is to an analysis of the case by John-Paul Swoboda KC), together with Helen Wolstenholme's article Fatal Accidents: Counting the Cost.

The recent decisions suggest a judicial willingness to examine, and in some cases modestly extend, the conceptual limits of dependency claims under the FAA in circumstances where doing so may be necessary to achieve full compensation for dependants. 

What constitutes a compensable dependency?

At the heart of every FAA dependency claim lies section 3(1), which permits recovery of such damages “as are proportioned to the injury resulting from the death to the dependants”. As Swoboda KC notes, the somewhat antiquated statutory language (dating back to the original FAA of 1846) is deceptively broad and appears, at least on a straightforward reading, to allow recovery for a range of losses resulting from the death, subject to significant judicial limits developed through case law.

An area of current debate concerns the scope of compensable dependency. Traditionally, claims focused on financial support and domestic services that would, but for the death, have been provided by the deceased to his or her dependants. Recent litigation has tested whether more nuanced forms of economic loss may also be recoverable. 

The guiding principle is that the dependency is assessed at the date of death. The Court of Appeal authorities reviewed by the judge in Burgess, particularly Welsh Ambulance Services NHS Trust v Williams [2008] EWCA Civ 81 and Steve Hill Ltd v Witham [2021] EWCA Civ 1312, emphasise that the FAA award compensates for the loss of what the deceased would have provided had they lived, rather than evaluating how dependants subsequently manage their affairs. Accordingly, post-death arrangements are generally irrelevant, except where they affect the existence or continuation of the dependency. 

Burgess and the expanding scope of services dependency

Against that background, Burgess is potentially significant. The claim arose from the death of a woman whose adult sons lacked capacity and were heavily dependent upon her care and support. The court awarded more than £1.5 million, much of it for services dependency. Particularly noteworthy was the decision to value past services on a gratuitous basis while assessing future services by reference to commercial replacement costs, a distinction which Swoboda KC questions in his article. The judgment also held that deputyship costs required to manage damages awarded to the incapacitous dependants were recoverable.

The deputyship issue raises an important question about the scope of dependency loss. Deputyship services – professional fees charged for managing the award made to the adult sons - were not services the deceased would have provided herself, nor were they a direct replacement for lost financial support. Yet the court considered the costs were a necessary consequence of replacing the support lost through her death and therefore recoverable.

The decision arguably tests the boundary between recoverable dependency losses and consequential losses flowing from the death. Unsurprisingly, permission to appeal was sought. Helen Wolstenholme’s article indicates it has already been granted. 

These developments sit alongside a broader trend identified in commentaries on FAA claims. Recent authorities suggest an increasing focus on the complexities of family support arrangements (by way of care and other services) rather than on simple wage replacement. The challenge for courts is to distinguish between the value of services lost and losses that merely arise because the death has occurred.

Roberts and the modern approach to dependency loss

If Burgess raises questions about the type of losses that may be recovered, the significance of Roberts lies in its contribution to the debate about the assessment of dependency losses. Together with Burgess, it reflects continuing judicial scrutiny of how these losses are to be valued.

The claim arose following Mr Roberts' death from mesothelioma at the age of 74 and was pursued by his elderly widow. One of the key questions was whether her services dependency claim ended when she entered residential care, given that she no longer received at home the care that her husband would, but for his death, have continued to provide. The authorities appear to provide little direct guidance on the issue. 

The judge found, after careful analysis of the leading cases (Williams and Witham, cited above), that the move to the care home did not end the dependency and hence made an award based on agreed expert evidence of Mrs Roberts’ life expectancy. Although this decision may be specific to the facts, it tends to suggest that services dependency claims may survive changes in the mechanism through which the service is delivered provided that the underlying need that the deceased met continues to exist.

Measured and incremental change?

The emerging picture is therefore one of careful judicial scrutiny rather than doctrinal change, with decisions such as Burgess and Roberts raising important questions about what losses can properly be characterised as consequences of lost dependency.

Courts continue to adhere to the fundamental principle that FAA damages compensate for the loss of pecuniary benefits from the deceased. 

However, they are increasingly prepared to examine the practical realities of modern family relationships and the cost of replacing lost support. The unresolved question is whether this process represents a faithful application of section 3(1)'s broad language or a gradual extension of dependency claims beyond their traditional boundaries.

Implications for Insurers

For compensators and insurers, the decisions in Burgess and Roberts reinforce the need for a broader and earlier evaluation of dependency claims. Historically, reserves in FAA cases were often driven by loss of income and relatively conventional services claims.

These recent authorities suggest that claimants are increasingly willing to pursue substantial claims based on lost care, domestic support, and ancillary costs associated with replacing the deceased's contribution to family life. The reasoning in Burgess, particularly in relation to deputyship fees and the commercial valuation of future services, may encourage claimants to frame losses more expansively and to rely on expert evidence to demonstrate replacement costs.

Insurers should therefore scrutinise the factual basis of alleged dependencies at an early stage, obtain detailed evidence of the services actually provided by the deceased, and carefully distinguish between losses representing the value of lost services and losses merely arising after the death.

Looking ahead

Neither Burgess nor Roberts fundamentally alters the law. Together, however, they point to a judicial willingness to look beyond traditional dependency models and to assess the real economic value of the support that families lose following a death.

The ongoing uncertainty surrounding the scope of recoverable dependency losses also means that reserve-setting and settlement strategies should take account of the possibility of further appellate clarification, particularly as it now appears that the Court of Appeal is likely, in due course, to consider the issues arising in Burgess. Its eventual decision is likely to provide important guidance on how far the law is prepared to travel in seeking to achieve full compensation for dependants in FAA cases.

Whether the Court of Appeal ultimately endorses or restricts the reasoning in Burgess, the case is likely to become an important authority on the limits of dependency recovery. Together with Roberts, it demonstrates that FAA litigation continues to evolve as courts seek to reconcile nineteenth-century statutory language with the realities of modern family life.

Roberts v Ford Motor Company Ltd

Burgess v Sikorski v Hertsmere Borough Council

Fatal Accidents: Counting the Cost