What is the purpose of compensation?
The loss of a loved one is never easy, but when a death follows medical negligence, the grief can be particularly difficult to come to terms with. Families may face not only the emotional pain of losing someone close to them, but also significant financial pressures and uncertainty about the future.
While no amount of compensation can replace the person who has been lost or take away the pain of bereavement, a successful claim may provide financial support and greater security during an incredibly difficult time.
How is compensation in fatal claims calculated?
The calculation of compensation in a fatal medical negligence claim can be complex. There is no single figure that applies to every case. The compensation available will depend on the circumstances of the deceased, their family and the financial consequences of their death.
What the law relating to compensation in fatal claims?
There are two important pieces of legislation governing claims following a death in England and Wales: the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.
Claims under the Fatal Accidents Act 1976
The Fatal Accidents Act 1976 (FAA 1976) provides a statutory right to claim compensation where a person's death has been caused by the wrongful act, neglect or default of another.
Under this Act, certain relatives and dependants of the deceased can claim damages for the financial losses resulting from the death.
The Act defines who may qualify as a dependant. This can include, amongst others, a spouse or civil partner, children and certain other family members or people who were financially dependent on the deceased.
- Loss of financial dependency
One of the most significant elements of a fatal accident claim can be the loss of financial support provided by the deceased.
The calculation for loss of dependency will generally involve considering what financial contribution the deceased is likely to have made to the family had they survived.
This involves consideration of:
- the deceased's earnings and employment;
- their likely future earnings and career progression;
- their expected retirement age;
- the financial contribution they made to the household;
- the circumstances of their dependants; and
- the period for which financial support would probably have continued.
The calculation of future financial dependency can be complicated and may require evidence from a forensic accountant or other financial expert.
- Loss of services
The deceased may also have provided services to their family which now need to be replaced.
For example, they may have provided childcare, cared for another family member, managed the household or carried out other domestic tasks.
A claim may therefore include the value of services which the deceased would probably have continued to provide.
To calculate a loss of services claim, the following will be taken into account:
- the type of service provided
- the number of hours spent per day by the deceased providing the service
- for how many years the deceased is likely to have provided the service
- who is now providing the service and the cost of it, if it is being paid for.
- Funeral expenses
The Fatal Accidents Act 1976 provides that damages may be awarded where dependants have incurred funeral and associated expenses.
Evidence of the expenses incurred will normally be required when calculating this part of the claim.
- Bereavement damages
The Fatal Accidents Act 1976 also provides for a bereavement award.
Unlike financial dependency, this is not calculated according to the financial circumstances of the family. It is a statutory sum.
For deaths occurring after 1 May 2020, the statutory amount in England and Wales is £15,120.
Only a limited number of people can claim bereavement damages, namely:
- A spouse or civil partner of the deceased
- A cohabiting partner of the deceased, providing that they were living with the deceased for at least 2 years immediately before the death
- The parents of deceased child under the age of 18 (if the parents were married at the date of death) or the mother of a deceased child under the age of 18(if the parents were not married at the date of death).
Claims under the Law Reform (Miscellaneous Provisions) Act 1934
- Who can make a claim under the Law Reform (Miscellaneous Provisions) Act 1934
The Law Reform (Miscellaneous Provisions) Act 1934 enables the Estate of a deceased person to pursue a claim for compensation which the deceased would have entitled to pursue had they lived.
The claim can only be made by the Personal Representative of the Estate (either the Executor named in the deceased’s will, or the Administrator, who is entitled to apply for a Grant of Letters of Administration, if there is no will.)
- What can be claimed under the Law Reform (Miscellaneous Provisions) Act 1934
There may be a claim for:
- the deceased's pain and suffering before death;
- financial losses incurred before death; and
- funeral expenses in appropriate circumstances (although these cannot be claimed twice under both Acts).
The position is different where death was instantaneous. Where there is no period during which the deceased experienced pain or suffering following the negligent act, there may be little or no claim for the deceased's own pain and suffering.
- Who is entitled to any compensation received under the Law Reform (Miscellaneous Provisions) Act 1934
Any compensation recovered will be paid to the deceased’s Estate and will be distributed in accordance with terms of the deceased’s will or the rules of intestacy where there is no will.
What is the difference between the two types of claims?
It is important to distinguish between a claim brought for the benefit of the estate under the 1934 Act and a claim brought for the benefit of dependants under the Fatal Accidents Act 1976.
They address different losses.
The 1934 Act is concerned with the cause of action belonging to the deceased which survives for the benefit of their estate. The Fatal Accidents Act 1976 provides compensation for the losses suffered by qualifying dependants as a result of the death.
The legislation expressly preserves the rights of dependants alongside the rights of the deceased's estate.
Evidence
Evidence is central to calculating compensation in a fatal medical negligence claim.
Depending on the circumstances, this may include:
- employment and salary records;
- pension information;
- tax returns;
- bank statements;
- household expenditure;
- evidence of childcare or other services provided by the deceased;
- funeral invoices; and
- evidence about the deceased's likely future employment and earnings.
- Medical evidence in respect of the pain and suffering endured by the deceased
- Receipts in relation to expenses incurred by the deceased before their death
The more complex the financial circumstances, the more detailed the evidence required is likely to be.
Every fatal medical negligence claim is different
The compensation available following a death will depend on the individual circumstances of the deceased and those left behind.
The Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 provide the statutory framework, but calculating the value of the individual losses requires careful consideration of the evidence.
A specialist medical negligence solicitor can help identify the different elements of a claim, obtain the appropriate evidence and ensure that the losses suffered by the estate and the deceased's dependants are properly considered.
Ms Krishna Kotecha, Partner and Specialist Medical Negligence Solicitor said “The loss of a loved one following medical negligence can have a profound impact on a family, both emotionally and financially. While compensation can never replace the person who has been lost, it can provide a degree of financial security at a time when families may be facing significant uncertainty. A successful claim can help ensure that the financial consequences of the loss are properly recognised and that those left behind have the support they may be entitled to.”
