1. Fatal claims generally
Entitlement to bring a claim following a person’s death derives from statute, and needs to be considered in a different way to standard personal injury/clinical negligence claims. Although there is some overlap quantification depends largely upon the statutory provisions, and the case law interpreting those provisions.
There are two types of fatal accident claim: (1) the Estate’s Claim and (2) the Claim by the Dependants of the Deceased.
THE ESTATE’S CLAIM UNDER THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934
The Estate effectively stands in the shoes of the deceased and can only claim (subject to the exception of funeral expenses) for the losses that the deceased could have claimed if he or she had survived. Therefore all causes of action (apart from defamation) survive the death of any person for the benefit of his or her estate.
The claim can only be brought by executors or administrators for the beneficiaries of the Estate.
The main types of claim are:
- Pain, suffering and loss of amenity (from the date of injury to the date of death)
- Special damages (from the date of injury up to the date of death). These will include Loss or earnings, medical expenses and treatment, damage to clothing and property, Care (professional or gratuitous) and travel expenses.
- Funeral Expenses (if paid for by the estate)
FATAL ACCIDENTS ACT 1976
The FAA 1976 creates a separate cause of action for the dependants (and the separate category of persons entitled to the award of bereavement damages) but it is based on the pre-condition that the deceased, had he or she lived, must have been entitled to maintain an action in respect of the wrongful act of the Defendant, i.e. that the Deceased would have had a claim had he/she survived.
It is important to note that:
- If the deceased had no cause of action then the estate and the dependants have no cause of action;
- Any defence that could have been used against the deceased can be used against the estate and the dependants;
- If the deceased was contributorily negligent then the damages of the estate and the dependants are reduced accordingly.
In terms of FAA claims, there are 3 possible heads of damages, namely:
- An award of bereavement damages (In respect of deaths after 5th March 2013, the award is currently fixed at £12,980.00 for England & Wales);
- A dependency claim for the financial losses suffered by the dependants of the deceased;
- A claim for the funeral expenses, if paid by the dependants.
2. Multiplier on fatal claims
Knauer v MOJ [2016]
This case changed the way in which financial dependency claims are calculated in fatal accident claims, bringing them in line with the method adopted for non-fatal claims.
In short the future multiplier is now taken from the date of trial, rather than the date of death.
Past losses are calculated simply by multiplying the annual loss by the number of years that have passed between death and trial.
Whilst the decision of the Supreme Court was no doubt disappointing for defendants initially it was not unexpected.
Under the new approach, Claimants bringing dependency claims under the Fatal Accidents Act 1976 will now have damages assessed in two parts:
- damages covering the period from the date of death to the date of trial
- a lump sum award in respect of future loss, discounted for accelerated receipt, using an appropriate multiplier selected as at the date of trial
Previously the approach was to set the multiplier for future losses from the date of death (as per the House of Lords decision in Cookson v Knowles [1979] AC 556, a case decided before the Ogden tables). This resulted in the claim for past losses (losses between death and trial) being discounted so the claimant was treated as though the loss was a future loss rather than a past lost. They received the money after the loss had been incurred but the lump sum was being discounted as if the loss would be incurred in the future. This represented something of a windfall for defendants and resulted in the underpayment of damages in fatal accident cases.
The Knauer approach arguably provides a more complete compensation/restitution for the Claimant. However, the approach to calculating fatal accident damages is still not entirely logical, e.g. Section 3(3) Fatal Accidents Act 1976 requires the Court to disregard not only the prospect of remarriage, but the actual fact of remarriage, of a Claimant when calculating dependency. Also, Section 4 requires the Court to disregard any benefits which will or may accrue to any person as a result of the death – for instance, life insurance payouts do not count against the damages.
The practical effect of Knauer, is that fatal accident Claimants can now rely on the Ogden tables and the actuarially recommended approach. How much of an impact the -0.75 Discount Rate has on the impact will need to be considered carefully, and much of the benefit to Claimants of the change has now been off-set.
3. Funeral expenses, probate costs and “loss of love and affection”
Mosson v Spousal (London) [2016]
The case was brought by the widow of Mr Mosson, who was exposed to asbestos during the course of his employment in the 1960s and 1970s. Liability was admitted, with contributory negligence arguments relating to a period of self-employment.
The case is of note in relation to a number of relatively modest items.
Some funeral expenses were in dispute, namely the cost of a wake, clothing purchased for the funeral and a memorial bench. These were not awarded.
The case rejected claims for clothing and a memorial bench
In relation to the memorial bench, there is a long-standing distinction between tombstones or grave markers (allowed as funeral expenses), and memorials (which are not). It may be said that this distinction is somewhat arbitrary, but it was reaffirmed in this case.
Case rejected a claim for the costs of probate
This decision was correct. Claims for expenses incurred by the estate following death are being advanced but they are misconceived – funeral expenses are the sole exception to the general rule that expenses of the estate consequent on death are not recoverable (s1(2)(c) of the Law Reform (Miscellaneous Provisions) Act 1934), The Act states that damages “shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included”. Thus the costs of probate or the costs of administering the deceased’s estate are not recoverable in claim brought by the estate.
The Judge rejected the claim for “loss of intangible benefits”, more commonly termed claim for “loss of love and affection”.
Such claims were first brought in 1970s, in relation to claims by children and taking the form of an increase to the award for services dependency. This developed into a separate award. The practice has developed so awards both to children and spouses have become conventional and are described as claims for “loss of love and affection”.
This head of claim cannot be said to fall within the notion of a dependency, which is the basis on which the Court is assessing the financial value of the money and services provided by the deceased. It is easier to an argument relating to a child’s loss of the intangible contribution of a natural parent but in the case of an adult it is arguably becoming a general damages award for a surviving spouse, which is arguably the role of the bereavement award.
In rejecting the claim (which had pointed to supposed advantages in the deceased husband providing services to his wife rather than contractors) the Judge noted out that DIY has both advantages and disadvantages, including relative competence. At the moment defendants should not concede any claim of this type, especially when made by a surviving spouse.
4. Cohabitee and bereavement award
Smith v Lancashire Teaching Hospitals [2016]
The Fatal Accidents Act 1976 requires a tortfeasor who is liable for death to pay dependency and bereavement damages to people who fall within certain categories of relationship with the deceased.
Dependency damages can be claimed by a spouse, civil partner or a co-habitee who has lived with the deceased as a spouse or civil partner for at least two years as at the date of death (“2 year + cohabitee”).
However, bereavement damages are not payable to 2 year + cohabitees.
It was argued that this was a breach of the European Convention of Human Rights (specifically, Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination)).
That argument was rejected by Edis J, who found that the complaint did not achieve the level of serious impact required to put it within the ambit of Article 8. Furthermore, the absence of a right to compensation for her grief was said to be only tenuously linked to respect for her family life.
5. Loss of earnings claims by surviving spouse
Rupasinghe v West Hertfordshire Hospitals NHS Trust [2016]
Damages under the Fatal Accidents Act 1976 are to reflect the claimant’s loss of dependency on the deceased. The Act looks only at losses which flow from what the deceased did when alive, or was likely to have done had he/she survived (either by the making of a financial contribution or by providing childcare or similar services).
In this case, the widow of the deceased claimed that she had been forced to give up a remunerative career as a doctor in the UK and return to Sri Lanka after her husband’s death, in order to receive support from her family.
She accepted that a free-standing claim for loss of earnings would fail under the Act. Therefore she sought to argue that this item formed part of the services dependency claim. It was a novel argument, but ultimately failed.
The judge found that the move to Sri Lanka was a reasonable one (it enabled Dr Rupasinghe to be with her family), but the judge rejected the claimant’s claim for her own loss of earnings and pension.
Straightforward loss of earnings claims by a surviving spouse have been rejected previously. The Act is only concerned with losses which flow from what the Deceased did when alive: either by the making of a financial contribution to the household, or by providing childcare and similar services (which can be accorded a financial value).
Ordinarily, the court approaches the quantification of a services dependency claim by considering the cost of replacing the services formerly provided by the Deceased, e.g. looking to the cost of commercial care in the form of nannies, au pairs, child-minders etc.
However, in some appropriate situations, the courts have valued the services formerly provided by the deceased with reference to the earnings foregone by the claimant in order to now provide those services.
Here it was argued that this was not a claim for loss of earnings in the strict sense; it was a claim for loss of services but using the surviving partner’s earnings as a proxy or surrogate measure for the value of the services. The Court held that the argument was not to value the loss of the Deceased’s services, or the lost earnings as a result of the surviving spouse providing the services, but rather was an argument that the Claimant lost her career because of her husband’s untimely death. Whilst this was the case factually, it was held that this was not attributable to any need to replace a service that the Deceased had formerly been providing and therefore was a claim for loss of earnings and failed.
6. Quantum cases –
KP v (1) RS (2) JV (2017)
59-year-old woman, received £5,500 (£2k PSLA) relating to a substandard crown of poor fit in 2015. She suffered pain and had to undergo an extraction and replacement of her tooth.
CLARK v ABERTAWE BRO MORGANNWG UNIVERSITY LOCAL HEALTH BOARD (2017)
PSLA of £45k agreed for 48yr old who suffered fibromyalgia and depression.
Claimant suffered fibromyalgia following a hysterectomy in June 2011. After the procedure the Claimant bled heavily and lost around 3 litres of blood. Further surgery was required. She recovered slowly from the procedure.
A clinical negligence claim was brought and settled out of Court. It was contended that she experienced constant, unremitting, pain and as a result was tearful, exhausted and depressed. She relied on the constant care and help provided by others. As a result of the accident, she was left unable to work and had to rely on receiving benefits.
LP v WORCESTERSHIRE ACUTE HOSPITALS NHS TRUST (2017)
PSLA of £2k in claim where the claimant (33-year-old woman), for the injuries sustained after surgical extraction at LL8 in May 2015. She suffered a post-operative infection and associated pain and discomfort. She was left with permanent scarring on her neck which caused her to be self-conscious.
JB v GREAT WESTERN HOSPITALS NHS FOUNDATION TRUST (2016)
PSLA of £10k relating to a case where the claimant, a 78-year-old man, woke during keyhole surgery and saw surgeons stapling the site of the surgery.
He experienced an adjustment disorder with anxiety and a depressed mood, nightmares and his sleep was disturbed.
AB (BY HER LITIGATION FRIEND, CD) v NORTH WEST AMBULANCE SERVICE NHS TRUST (2016)
PSLA of around £210k a 34-year-old woman received a lump sum of £2,686,000 with periodical payments of £120,000.00 per annum after she suffered irreversible brain damage following a cardiac arrest. The claimant had mobility problems, cognitive impairment and required 24-hour care and assistance.
The Ambulance service was alleged to have failed to prioritise the call and as a result of the delay in Claimant receiving Paramedic medical treatment, high flow oxygen and defibrillation shocks, she suffered the irreversible brain damage. Ultimately breach and causation was admitted.
XY v GLOUCESTERSHIRE HOSPITALS NHS FOUNDATION TRUST (2016)
PSLA of £200k on claim brought by 54yr old who received a lump sum of £1,100,000 plus periodical payments of £240,000 for the rest of her life for the injuries sustained following a delay in diagnosis of viral encephalitis in June 2009.
Admissions of breach were made, but causation remained in issue at the time of settlement. The Claimant required 24-hour care and was incapable of employment, life expectancy was reduced by around four years to age 85.
MICHAEL CONNELLY v CARDIFF AND VALE UNIVERSITY HEALTH BOARD (2016)
PSLA of around £75k on claim brought by 52-year-old man, who received total damages £400,000 for the ileostomy, loss of anal function and related conditions he suffered after undergoing an extended right hemicolectomy in July 2011.
Liability was admitted and medical evidence indicated that, on the balance of probabilities, if he had undergone different surgery to remove suspected bowel cancer he would have retained anal function.