A difficult and emotive area of assessing damages is where a family member dies as a result of negligent treatment. Rachel Gilgun, an associate in our health litigation team, provides a brief review of the relevant law in this area.

The following damages could potentially be claimed following a death:

  • Damages under The Law Reform (Miscellaneous Provisions) Act 1934 claimed on behalf of the deceased’s estate. These damages are generally based on the losses which the deceased could have claimed but for the death. Claims can include the following:
    • Pain, suffering and loss of amenity suffered by the deceased between the date of negligence and death. The claimant must show that there was suffering by the deceased.
    • Any financial losses incurred by the deceased between date of negligence and death e.g.: loss of earnings, care, additional clothing costs.
    • Reasonable funeral expenses (if incurred by the estate).
  • Damages under The Fatal Accidents Act 1976 on behalf of any dependents of the deceased.  The following could be claimed:
    • Bereavement award.  The award can only be claimed by the spouse, parents of a legitimate unmarried deceased minor or the mother of an illegitimate unmarried deceased minor.  The award under this head of loss is set by the legislation as follows:
      • From 1 April 2002 - £10,000
      • From 1 January 2008 - £11,800
      • From 1 April 2013 – £12,980
    • A claim for dependency for loss of income and/or loss of services of the deceased.  The persons who can claim dependency under the legislation is wider than the bereavement award and includes those who have been living ‘as man and wife’ in the same household for more than two years before the death.
    • Reasonable funeral expenses (if paid for by the dependent).
  • Any psychiatric injury sustained by a family member as a result of the death, provided that they are able to satisfy the criteria for a secondary victim as follows:
    • Close ties of love and affection with the deceased.
    • Must have been present at the incident or its immediate aftermath (proximity in time and space).
    • The psychiatric illness must have been caused by the direct perception of the accident or its immediate aftermath, and not upon hearing about it from someone else (own unaided senses).
    • Must also establish that the mechanism by which they suffered psychiatric illness can be described as ‘nervous shock’, i.e. ‘the sudden appreciation by sight or sound of a horrifying event’.
    • Must have suffered from a recognisable psychiatric illness.  A grief reaction alone is insufficient.

An example of a low value claim would be where an independent adult child (aged 18 or over) dies as a result of negligent treatment. The parents would only be entitled to any funeral expenses, damages for any pain suffering and loss of amenity on behalf of the deceased and any financial losses. The damages may only amount to a few thousand pounds as the parents would not be entitled to the bereavement award and it is very unlikely that there would be a dependency claim.

An example of a higher value claim would be a wife and mother who dies leaving behind her young children and husband. The deceased’s husband would be entitled to claim as per the example above, but additionally he would be entitled to the bereavement award and a dependency claim to compensate him (and the children) for the loss of dependency upon her salary and/or any services which she provided such as domestic chores and looking after the children. Damages in this type of claim could be a six figure sum, depending upon the circumstances.

Assessing damages in fatal cases is not always easy or straightforward and the range of awards can vary tremendously. What is important however is to be aware of the law that governs these cases so that when reviewing them an approximated assessment of damages can be made.