Legal Support For Bereaved Families

Nicholas Leahy

What legal support is available for bereaved families?

The loss of a loved one is an extremely distressing time for the family, made even more distressing if there are concerns that the death was caused by substandard medical treatment. Whilst the immediate concerns will be registering the death and making arrangements for the funeral, it is important to investigate any potential claim for clinical negligence at the earliest opportunity. The three-year time limit for commencing court proceedings relating to deaths caused by clinical negligence begins to run from the deceased’s date of death.

Following a death caused by clinical negligence, there may be an internal investigation by the hospital trust and/or the local coroner may open an inquest to investigate who the deceased was, when, where and how they died. More information about inquests can be found here.

Once any internal investigation and/or inquest has been concluded, a clinical negligence claim can be investigated. Fatal accident claims can be very complicated and can often take many months or even years to conclude, depending on the individual circumstances. In this blog, I will explain the basics of a fatal accident claim in the context of clinical negligence.

Legislation relating to fatal accidents claims

Two main pieces of legislation set out the law on claims relating to fatal accidents, namely the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. There are important differences between the two pieces of legislation and it is important that you instruct a solicitor who has experience of advising clients in fatal accident claims.

Law Reform (Miscellaneous Provisions) Act 1934

This Act provides for the continuation of a cause of action which the deceased was entitled to in the instant before they died (e.g. a claim for negligence), for the benefit of their estate. It does not create any separate cause of action for the dependants of the deceased and is merely a continuation of the deceased’s existing rights in the instant before their death.

The damages which are awarded under this Act are damages to which the deceased would have been entitled to claim in the instant before they died. This includes:

• Pain, suffering and loss of amenity – from the time of the injury until death;
• Loss of income – from the time of the injury until death; and
• Funeral expenses – provided they are reasonable and were incurred by the Estate; and;
• Services rendered by third parties – for example nursing care from a relative.

Any damages which are claimed under this Act pass to the deceased’s estate. From there, they pass to the deceased’s beneficiaries according to the deceased’s will, if there is one, or the rules of intestacy if not.

Fatal Accidents Act 1976

This Act creates a separate cause of action for the dependants of the deceased’s estate, and for a narrow group who are entitled to bereavement damages. The cause of action though is based on the pre-condition that the deceased, had they lived, would have been able to successfully sue the Defendant. As such, if the deceased would have had no cause of action then the estate and dependants have no cause of action, and similarly, any defence which could have been used against the deceased can be used against the estate and the dependants.

The damages which can be claimed under this Act fall under the following heads, namely:

1. A dependency claim for financial losses suffered by the deceased’s dependants;

2. Bereavement support payment (The current level of the statutory Bereavement Support Payments in England and Wales is £15,120)

3. Funeral expenses, if paid for by the dependants.

4. Loss of consortium (or “intangible benefits”) – this is the loss of personal attention and affection provided for example by a parent, or a spouse.

The meaning of dependant is defined in the statute itself, and includes the wife/husband or former wife/husband of the deceased; civil partner/former civil partner of the deceased; anyone who was living with the deceased in the same household immediately before the date of death and had been for at least 2 years before that date, and was living for the whole of that period as the husband/wife/civil partner of the deceased; parents and other ascendants of the deceased; any person treated by the deceased as their parent; children and other descendants of the deceased, as well as other categories of dependant which can be found at s1(3) of the Act.

In order to bring a successful claim, each dependant must also show that there is a reasonable likelihood that they will suffer financial loss as a result of the deceased’s death, or that they already have done.

Dependency claims can become very complicated and it is important that you instruct a solicitor who understands and has experience of dealing with claims of this nature.

Contact Osbornes Law to make a fatal negligence claim

The Clinical Negligence team at Osbornes have many years of experience in assisting families with clinical negligence claims following the death of a close family member. We appreciate the complexities of such claims and we take good care to ensure that the litigation process is as stress-free as possible for you and your family.

To speak with one of our solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811