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Part 1 - Making a Claim on Behalf of a Deceased Individual

View profile for Kimmo Boote
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In the following fictitious example, a Mr Gregory Dutton died at the age of 48 from testicular cancer. His GP was found to have been clinically negligent for continuously failing to refer Mr Dutton to an oncologist, therefore resulting in his premature death. The medical evidence showed that if Mr Dutton had been referred (and treated) sooner, he would have gone on to make a full recovery.

There are two methods available to Mr Dutton’s family for claiming damages following his death. One is provided for by the Fatal Accidents Act 1976 (FAA), and the other by the Law Reform Miscellaneous Provisions Act 1934 (LRMPA).

The Fatal Accidents Act 1976

This Act allows the dependants of the deceased to bring a claim, as long as it is brought either within 3 years of the date of death, or 3 years of the dependants’ date of knowledge of there being an actionable claim.

As with all clinical negligence and personal injury cases, the claimant will have to prove that negligence caused or materially contributed to the death.

A Dependant is classified as one of the following:

  • A spouse or former spouse of the deceased.
  • A co-habitee who had lived with the deceased for at least 2 years prior to the date of death
  • A parent of the deceased
  • A child of the deceased

The FAA permits the dependants of the deceased to bring a claim for:

  • Statutory bereavement damages – the amount is £12,980 for deaths occurring after 01.04.13. Those entitled to this award are restricted to the spouse, parents of a legitimate, unmarried deceased child (under 18), or the mother of an illegitimate unmarried deceased child.  So in our fictitious example, Mrs Dutton will be eligible to claim an award.
  • Funeral expenses – if paid for by the dependants. If the funeral was paid for out of the proceeds of the Estate, then the claim for reimbursement should be made via the LRMPA (see below).
  • Loss of dependency – the claimant has to show that they were a category of dependant (see above), and also that they have suffered a financial loss, or had a reasonable expectation of financial benefit removed from them. Examples include: loss of earnings, loss of services such as DIY, loss of fringe benefits such as a company car, loss of pension, loss of anticipated gifts. When evaluating loss of earnings claims, the courts will look at the deceased earnings, the amount that they would spend on the dependants and the likely future amount that would have been spent. The amount that the deceased would have spent on themselves would then be deducted. In a case heard at court, it was found that a deduction of 25% was appropriate where the deceased had children, and 33% where there were no children and just a spouse. 

In our fictitious example, Mr Dutton, who was a PE teacher, had his future loss of earnings calculated as being £330,000. He left a wife and 2 children. It is estimated that he would have spent half that future sum on his wife and children, and 25% of the balance on himself. Therefore the net claim in this example is £112,500.  

The second part of this article will appear next week – showing how Mr Dutton’s Estate can make a claim under the LRMPA.

If you want further information about this particular topic, or wish to discuss the possibility of bringing a claim, please contact the Dutton Gregory Clinical Negligence Team on (01202) 315005, or email k.marden@duttongregory.co.uk.