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Part 2 - Making a claim on behalf of a deceased individual

View profile for Kimmo Boote
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Click here to read Part 1 of this article.

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 failing to timeously 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 Law Reform Miscellaneous Provisions Act 1934 (LRMPA)

Section 1 of this Act allows the Deceased’s Estate to bring a claim for damages.

Again the claim must be brought either within 3 years of the date of death, and as with all clinical negligence and personal injury cases, the Estate will have to prove that negligence caused or materially contributed to the death.

The personal representatives of the Estate will bring the claim, and any damages recovered are then distributed as per the Will, or if the Deceased died intestate, in accordance with the intestacy rules.

The LRMPA permits the Estate to bring a claim for:-

  • Damages for pain, suffering and loss of amenity suffered by the deceased between the date of injury and their death. For example, the 13th edition of the Judicial College Guidelines (JCG) recommends an award of between £15,950 and £18,100 where an individual suffers severe burns and lung damage for a short period, then fluctuating levels of consciousness for between 4 and 5 weeks, coupled with intrusive treatment.
  • Damages to compensate the deceased’s awareness that their life expectancy had been reduced. The JCG recommends an award of £3,550 where an individual experienced fear of impending death/reduction in life expectancy.
  • Funeral expenses (as long as not being claimed for under the FAA 1976) – with such expenses being deemed reasonable, and paid for out of the proceeds of the Estate.
  • Value of services rendered by third parties, for example nursing care given by a relative to the deceased.

In our fictitious example, Mr Dutton’s Estate were awarded damages for the mental anguish suffered by Mr Dutton, as well as damages for the physical pain, suffering, and loss of amenity. The funeral expenses were reimbursed, and damages were paid for the gratuitous care provided by Mrs Dutton to her husband.   

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