Compensation for the loss of a loved one – how are damages quantified?

When an individual successfully brings a personal injury or clinical negligence claim, they will typically be awarded a lump sum payment known as ‘damages’. The purpose of those damages is to put the injured person, as best as possible, back into the position they would have been had the accident or clinical negligence not occurred.

It goes without saying, however, that there is simply no financial remedy that can compensate for the loss of a loved one or indeed bring them back. So how are damages quantified in claims involving death?

Firstly, it should be borne in mind that only certain categories of person are entitled to bring a claim in respect of a deceased person. You might be entitled to claim, for example, if you were financially dependent on the deceased and you can prove that their death has caused you financial hardship. Alternatively, the executors or personal representatives of the deceased’s estate may have standing to bring a claim on behalf of the estate. In either scenario, legal proceedings must be issued within three years of the date of death or within three years of the date of knowledge of whoever is bringing the claim.

Claims under the Law Reform (Miscellaneous Provisions) Act 1934

The claim is brought on behalf of the deceased’s estate by the executors or administrators. Executors derive their power from the terms of the deceased’s will and if the deceased died intestate (i.e. without leaving a valid will) then administrators will derive power by obtaining letters of administration.

Claims can be made under this Act for general damages, special damages between the date of the accident/negligence and the date of death and any funeral expenses paid for by the deceased’s estate.

‘General damages’ can be described as a monetary payment intended to compensate the deceased for any pain, suffering or loss of amenity or enjoyment of life prior to their death; so long as that pain and suffering is not regarded as part of their death (i.e. not experienced just moments before). Awards for general damages are not generally high and they will be received on behalf of the estate, unless the deceased lived long enough to recover judgment on their own account.

‘Special damages’ will include any financial loss incurred by the deceased between the date of their accident or the date of the clinical negligence and their death. This head of loss may include loss of earnings up to the date of death, private treatment costs, care costs (including commercial care or gratuitous care provided by family members), travel costs and so on.

A claim may also be made for reasonable funeral expenses, provided they were paid for by the estate of the deceased. Past cases would suggest that costs incurred for headstones, memorial services and probate fees have all been allowed however this has varied from case to case.

Claims under the Fatal Accidents Act 1976 (‘FAA’)

Claims can be brought by the executors or administrators of the deceased’s estate. However, if they do not bring a claim within six months of the date of death, or if there are no executors or administrators, then the claim can be brought by any (or all) of the financial dependents of the deceased. Those dependents might include a spouse, cohabitee of at least two years, parent, child, grandchild, sibling, uncle or aunt of the deceased. The law will also consider claims made by step-children, or any persons treated as a parent of the deceased.

Claims can be made under this Act for reasonable funeral expenses if they were paid for by the dependents, claims for financial dependency, claims for services dependency and statutory bereavement damages.

In order to bring a claim for financial dependency, the Claimant must show that they fall into one of the categories of eligible persons (see above) and that they were, or were likely to be, in some way financially dependent on the deceased. This may be through loss of the deceased’s direct income, loss of any fringe benefits such as a company car, loss of any anticipated gifts or loss of the deceased’s pension.

Bereaved family members are also entitled to claim for the loss of any gratuitous services provided by the deceased. This may include things such as DIY, gardening, the provision of general help around the house or the provision of care which might need to be paid for on a commercial basis going forward. More recently, Claimants have also been successful in claiming additional damages for the loss of a mother’s services which take into account the extended hours, increased commitment and provision of love which are all traditionally provided by mothers. This will usually be a fairly modest lump figure.

Finally, under the FAA, one may make a claim for ‘bereavement damages’. This is a further lump sum award fixed by the amount prescribed under the Act at the date of death, currently at £12,980. There is much controversy surrounding the provision of bereavement damages, largely because only a very restricted class of persons are entitled to make the claim. Currently, you can only claim if the deceased person was your spouse or civil partner, or if they were your child under the age of eighteen and unmarried at the date of their death. If the child was illegitimate, only their mother is entitled to claim the damages. Children are not entitled to claim in respect of their deceased parents.

There are calls by the Association of Personal Injury Lawyers (‘APIL’) to reform the law in respect of bereavement damages. APIL are campaigning to widen the category of eligible Claimants, as well as to increase the sum payable by the negligent party. Each member of our Personal Injury and Clinical Negligence team here at Barlow Robbins is an active member of APIL and we too, fully support the campaign.

Whilst this article has provided a synopsis on the law of damages in respect of fatal accidents, it must be emphasised that it is a hugely complex area which requires specialist input from the outset. Our team of personal injury solicitors and clinical negligence solicitors at Barlow Robbins has vast experience in supporting bereaved families at the most challenging time in their lives and ensuring they receive what they are entitled to.