Fatal Accident Claims: an analysis of the Fatal Accidents Act and the Law Reform Miscellaneous Provisions Act.
In a recently reported case, University Hospitals Plymouth NHS Trust were recently fined for failing to be open and candid with the family of a woman who tragically died whilst in it’s care.
Elsie Woodfield, who was 91, was admitted to Derriford Hospital in Plymouth in 2017 for an endoscopy. The procedure was aborted shortly after it started owing to a complication, and Mrs Woodfield died shortly afterwards. Her family were not provided with details, other than the fact that she had died as a result of the procedure.
In this sort of a scenario, the family of the deceased could make a formal complaint to the Trust to seek answers/an apology (as they did indeed do in this case), and they could also seek redress by means of compensation for the untimely death – on the basis that the death was caused by a breach of duty (negligent act or omission).
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 £15,120.00 for England & Wales);
- A dependency claim for the financial losses suffered by the dependants of the deceased, such as a loss of pension;
- A claim for the funeral expenses, if paid by the dependants.
THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1934
In addition to the FAA, the Law Reform (Miscellaneous Provisions) Act 1934 (LRMPA), preserves for the benefit of the estate of a deceased to bring about a claim – thereby removing the previous adage that ‘a claim would die with the Deceased’.
The Heads of Loss recoverable under the LRMPA, and which can be recovered by the Executors or Administrators of the Estate, are as follows:
- 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)
If you would like our advice regarding this subject matter, or indeed a claim for clinical negligence or personal injury, please do not hesitate to contact Swain and Co on 02392 483322, or email Kimmo.email@example.com