Your Rights: Rights of the Bereaved: Remedies: Civil Proceedings

If the deceased’s death has resulted from some negligent act or omission, it may be possible to bring civil proceedings against the ‘responsible’ person or body. The courts have held that a duty to take reasonable care may exist where there is a close and proximate relationship between the person causing the injury and the deceased, the injury was reasonably foreseeable, and there are no public policy reasons why it should not be imposed. The type of relationships where a duty has been found to exist include those between a doctor and patient, the police and a suspect, a car driver and road user and an employer and employee. This list is not exhaustive.

If there was a breach of that duty of care that caused a fatal injury (in other words if the care fell below a reasonable standard), the deceased’s estate may be entitled to compensation. However, not all bereaved persons have a right to claim damages arising from a death.

There is a three-year time limit for the commencement of legal proceedings for personal injury caused by negligence. The time starts to run from the date of death, or earlier if the deceased was already involved in litigation arising from the injury that caused his or her death. There are certain exceptions to this strict time limit and the court has a residual discretion to permit a claim brought out of time.

The Fatal Accidents Act 1976

The Fatal Accidents Act 1976 (FAA) provides financial compensation for the bereavement arising from the death of an individual. The people who are entitled to compensation for bereavement are: husbands, wives, and the parents of a child, or mother of an illegitimate child, who was under 18 years of age and who was never married. When the Civil Partnership Bill comes into force, surviving civil partners will also be entitled to compensation. The statutory sum recoverable is a fixed amount of £10,000. If the claim is on behalf of both parents of a child, the amount is divided equally between them. The parents of a child over 18, children of a deceased parent, parents of a stillborn infant and other relatives are not entitled to recover damages for bereavement no matter how closely associated with the deceased.

A problem often encountered is in relation to the death of an unmarried person over the age of 18 years whose parents seek to bring a claim arising out of the death, as there is no provision for an award in respect of bereavement damages under the FAA.. In the absence of any claim for future financial dependency, it is unlikely that any action can be pursued, as the claim for damages will be extremely modest and unlikely to justify the cost of expensive legal action. Even where a parent may have a strong claim in negligence for the death of their adult child it is very often not worthwhile pursuing, unless there is a claim for dependency.

A person who was financially dependent upon (or dependant upon the services of) the deceased may be entitled to recover damages for the loss of that dependency. A wider category of persons than the class of relatives who are entitled to claim for bereavement damages are entitled to recover damages for their loss of dependency, including the costs they have incurred of any funeral expenses. In all cases it is necessary to prove that there was a reasonable expectation of financial benefit from the deceased. Those coming under the category of dependants for the purpose of the FAA are:

A husband or wife, or former husband or wife of the deceased.
When the Civil Partnership Bill comes into force, a civil partner or former civil partner of the deceased.
A person who was living with the deceased as husband or wife for at least two years prior to the death.
A parent or other dependant of the deceased.
A person who was treated by the deceased as his or her parent.
A child or other dependant of the deceased.
A person, who in the case of a 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.
A person who is a brother, sister, uncle, aunt niece, nephew or cousin of the deceased.

The FAA provides that relationships of half blood are treated as relationships of whole blood, stepchildren are treated as children and illegitimate children are treated as legitimate children of their mother and the putative father. Relationships arising out of adoption are also included.

The FAA does not allow other persons who may have been financially dependent upon the deceased prior to his or her death to recover damages. Amongst those relationships currently not covered by the provisions of the FFA include those where the bereaved person was living with the deceased as husband or wife for a period of less than two years and, at the time of writing, couples in a same sex relationship. It is arguable however, that the FAA should now be interpreted in light of the Convention (Article 8) to extend the rights to couples in same sex relationships that have been cohabiting for over two years in a stable relationship, whether or not they have entered into a civil partnership.

Damages for loss of dependency are calculated by working out the value of the contribution to the dependent that the deceased would have made over the years if it had not been for his or her death. This can include any non-financial contributions, such as the value of the services provided by a parent, who, for example, provided household housework and/or childcare services to the family. The value of such services must be quantified and in most cases, a report will be obtained from an expert in the provision of care services, who will help estimate the financial value of services that would otherwise have been provided freely by the deceased.

Additionally, or alternatively, damages may be claimed for the loss of the financial contribution the deceased would have made to the bereaved. An award is made in these circumstances where the deceased was spending a proportion of his or her income on the dependant person. In many instances this will be relevant where the ‘breadwinner’ in the family dies and other members of the family lose the financial contribution the deceased would have made to the family upkeep. However, a claim can be made where the deceased was making a relatively modest contribution, for example, to the upkeep of a teenage child from a previous marriage or to another person qualifying as a dependent for the purposes of the FAA.

The total value of the dependency is calculated by working out the annual value of the financial loss to the dependants. The figure reached is termed a ‘multiplicand’ and it is multiplied by a figure, which represents the number of years over which that loss will be suffered. This figure is termed a multiplier. In many cases the dependants will have had an expectation of dependency for many years into the future. A spouse may have had an expectation of dependency for the whole of the deceased’s lifetime although the value of that dependency may have changed as the deceased’s earning capacity altered with promotion, retirement and other variables. A child of the deceased may only have been supported significantly until aged 16 or 18, after which time the dependency may have significantly reduced. In calculating the multiplier, lawyers use actuarial tables (called Ogden Tables), which set out the statistical life expectancies of the general population. These tables also allow the lawyer to work out the discount that should be applied for accelerated receipt of the damages, which are paid at the time of compensation, rather than over the course of the deceased's lifetime.

If the deceased is an infant child, it is necessary to prove a real likelihood that the child would have financially supported his or her parent or other relative. In some cases, particularly where there is a cultural tradition of the child supporting the elderly parents, this may be established, but in many cases the loss is regarded as too speculative if the infant was very young at the date of his or her death. In practice, this means that many claims in respect of the loss of an infant child only have a modest financial value usually limited to the bereavement award and any funeral expenses.

The Law Reform (Miscellaneous Provisions) Act 1934

A claim may be made on behalf of the deceased’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 (LRA) for any pain and suffering the deceased suffered prior to and relating to his or her death. The LRA provides that any legal actions that the deceased might have had, or was pursuing at the time of his or her death - except for defamation - survive for the benefit of his or her estate. This means that the administrator or executor of the estate will be entitled to claim damages on the deceased's behalf where the deceased, had he or she lived, could have brought an action in respect of the matter that resulted in his or her death. Such awards will usually be made where the deceased survived for a period of time between the injury that resulted in his or her death and his or her eventual death. The value of these awards is usually modest, unless the deceased survived for a significant period between the injury and his or her death.

Compensation for nervous shock

If the bereaved witnessed the death or came across the immediate aftermath of an injury or death causing them to suffer shock leading to a psychiatric illness, they may have a claim for compensation for this injury. The legal test is very strict and requires the bereaved person to show a close tie of love and affection with the deceased. The law has in the past recognised that a parent, child, husband or wife will have such close ties of love and affection and in these circumstances there is a rebuttable presumption that there is such a close tie. In relation to other relatives, it is necessary to prove that their relationship is so close as to be comparable to that of a parental or spousal relationship. On this basis, in the past, the law has denied recovery to siblings and in one case a grandfather of the deceased. This does not mean that such relatives can never recover damages in the future, but it does mean that there is a significant onus to prove that their relationship was especially close. There is also a requirement to prove that the psychiatric injury resulted from shock, rather than witnessing a relative’s demise over a long period, or simply witnessing their actual death in circumstances that are not sudden or shocking.

Stillborn Infants

A claim for compensation arising from the death of a stillbirth infant is problematic. Any claim for loss of future financial dependency will be inevitably extremely speculative and it is unlikely that damages will be awarded in these circumstances. The fact that the infant was not born alive means that there is no entitlement to a bereavement award under the FAA or on behalf of the estate of the infant under the LRA. The court may award damages for loss of expectation of a successful pregnancy and frustration of family plans, which result from the stillbirth of an infant due to negligence. A legitimate claim may also be made for any expenses associated with the stillbirth such as the purchase of items in preparation for the birth, such as baby clothing and furniture - generally referred to as the layette. In some circumstances, the parents of the deceased may fall within the category of persons entitled to compensation for psychiatric injury due to shock. Also, where the infant’s death was due to alleged medical mismanagement of the labour, it is usually the case that the mother of the infant was owed a direct duty of care by the hospital who will in those circumstances also be liable for any psychiatric injury that she suffered in consequence of a mismanaged labour, even if otherwise she would not satisfy the strict legal test for psychiatric injury due to shock.

If contemplating legal action, it is important to obtain specialist advice and assistance. Details of specialist solicitors can be obtained from the Law Society and in the case of deaths arising from medical accidents, the charity Action for Victims of Medical Accidents may assist with advice and details of specialist lawyers.