Injuries resulting in death – is there a claim?

The loss of a loved one causes unimaginable pain and grief and nothing could ever compensate for that. However, in certain circumstances if the death was caused by a third party through their act or omission, whether through a road traffic collision or an operation that was performed negligently, there may be a cause for bringing a civil action for compensation. 

At a recent webinar, my colleague Katherine Browne and I discussed how such claims can be brought. There are three statutes under which a claim can be brought following injuries resulting in death:- 

1. Law Reform (Miscellaneous Provisions) Act 1934 (“LR(MP)A 1934”) 
2. Fatal Accidents Act 1976 (“FAA 1976”) 
3. Human Rights Act 1998 

Do you have a claim? 

As a starting point and as with any personal injury or clinical negligence, it is important to establish whether you meet the criteria for bringing a successful claim including:- 

1. Liability/breach of duty – is there a cause of action?
2. Causation – Did that third party’s act or omission result in death?
3. Limitation – Is the claim being brought within time?

Who can bring a claim and what can you claim? 

LR (MP) Act 1934 

Under LR (MP) Act 1934, the claim is brought for the benefit of the estate within three years from the date of death or knowledge. It is brought by the executor/executrix (where there is a will) or administrator/administratrix (where the deceased died intestate) of the estate. 

This allows the deceased’s estate to recover some of the losses that the deceased was entitled to claim before they died. These will include:- 

1. General damages – pain, suffering and loss of amenity (“PSLA”) for the deceased.  
2. Special damages – financial losses suffered. 

PSLA is usually assessed by reference to the Judicial College Guidelines (“JC Guidelines”) and reported case law. Unfortunately, these are very modest and people are often, understandably, shocked to learn that very little compensation is awarded when a person loses their life due to a third party’s act or omission. For example, in the JC Guidelines, the top bracket is £12,540 to £23,810. This covers the situation where the injured person had full awareness of what happened to them for a short period and then fluctuating levels of consciousness for between four and five weeks, followed by death within a couple of weeks up to 3 months. 

In situations where there was immediate unconsciousness and death occurred within a week, the bracket for compensation is £1,370 to £2,790. 

In the past, no damages were awarded to victims who had immediate unconsciousness. This was the sad outcome in the case of Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65. No damages were awarded for two victims of the Hillsborough disaster who lost consciousness within a few seconds and died within 5 minutes. 

There have been some changes over the years and in Chouza v Martins and others [2021] EWHC 1669 (QB) £500 compensation was awarded where the deceased had an awareness of an impending collision for between 1 – 5 seconds but died instantly at the point of collision.  

Special damages (meaning specifically quantifiable losses), will be limited to any financial losses incurred by the deceased between the date of the accident and the date of death i.e.  

• Loss of earnings  
• Care and assistance provided by friends and family  
• Travel expenses of the family to the hospital  
• Private medical costs  
• Personal property – clothing/jewellery 

Financial expenses are also recoverable if paid by the deceased’s estate. 

FAA 1976 

Compensation claims under FAA 1976 are brought on behalf of the dependants of the deceased by the executor/executrix or administrator/administratrix of the estate. 

In certain circumstances, the claim may be brought by the dependants under s.2(2) or s.2(3). Such claims usually need to be brought within three years from the date of death or knowledge for an adult claimant and by the 21st birthday of a minor.  

What amounts of compensation can be claimed? 

1. Bereavement award (s.1A) is currently set at £15,120 for deaths post 1 May 2020 (s1A(3)). 
2. Claims by dependants (s.1(2)) for loss of financial dependency and dependency on deceased services (help around the house, child-minding, DIY and decorating to name but a few). 

Bereavement award can only be claimed by limited category of people s.1A :- 

• Deceased’s husband, wife or civil partner (will include those in the process of divorce) or 
• Parents of child younger than 18 if parents were married in equal shares or 
• Mother of child younger than 18 if parents were not married 
• Fatal Accidents Act 1976 (Remedial) Order 2020 expanded the list to include cohabiting partner of deceased if they were:- 
• Living with deceased immediately before death, for at least 2 years, as if they were husband and wife/civil partners.  

S.1(3) sets out who qualifies as a “dependant”. A successful dependency claim includes proving whether the “dependant” had a “reasonable expectation” of continuous financial benefit if the deceased had not died.  

You can have a claim where there is a claim under the LR(MP)A 1934 for the estate and the FFA 1976 for the dependants. 

Human Rights Act 1998 

In situations where there is no claim allowed under the LR(MP)A 1934 for the estate and or the FFA 1976 for the dependants, it may be possible to bring a claim for compensation under the Human Rights Act 1998 under Article 2: right to life. However, such claims can only be made if the defendant is a public authority. The claimant would need to prove they are a “victim” (Art.24 of ECHR) directly affected by the act or omission that is the subject of the complaint. Such claims must be brought within a year of the incident resulting in death. 

In the case of Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, compensation was awarded to both parents for £5,000 each following their daughter’s suicide resulting from negligent psychiatric treatment. The court considered the availability of alternative remedies before making the award. Here the deceased was an adult, and no compensation was available for bereavement damages under FAA 1976. 

Each case is fact sensitive and as with every other case, it is important to seek help from an experienced legal team to investigate matters carefully.