This post looks at the claims that can be made on behalf of the estate of a deceased person for losses and injuries prior to their death.
The two distinct claims
There are two potential claims following the death of a person:
(1) A claim under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the estate of the deceased.
(2) A Claim under the Fatal Accidents Act 1976 on behalf of the dependants of the deceased.
The two claims are quite distinct and there should be no overlap. (The Fatal Accidents Act, however allows the dependants to claim the funeral expenses under the Act, if the dependants have paid the expenses, (s.3.(5))
The Law Reform Act claim
To bring this claim a claimant must take out a grant of probate or letters of administration. The failure to do this is fatal to a claimant’s claim, see the discussion at http://www.zenithchambers.co.uk/cms/document/GE___FATAL_ACCIDENTS_AND_FATAL_ERRORS.pdf
The claims that can be brought
There are three main elements:
1. Losses of the deceased person prior to death.
2. Pain and suffering prior to death.
3. Funeral expenses.
Losses of the deceased person prior to death
This can include
- Loss of earnings prior to death.
- Care provided prior to death.
- Other expenses prior to death.
|In Drake –v- Starkey  EWHC 2004 (QB) an award was made for the voluntary services provided by a hospice to the deceased person prior to his death.|
Pain and suffering prior to death
If the death was instantaneous, or almost instantaneous, there is no award, so no award under this head was made for victims of the Hillsborough disaster crushed in the crowd, Hicks –v- Chief Constable of South Yorkshire  1 All ER 690 http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1991/9.html&query=hicks+and+chief+and+constable+and+south+and+yorkshire&method=boolean
Quantification of the loss
There are now Judicial College Guidelines which give broad bands.
|Fatal accident claims sometimes include an element for pain, suffering and loss of amenity for the period between injury and death. In some circumstances the awards may be high, for example those relating to asbestos exposure or misdiagnosis of cancer. Others follow extensive periods of disability before death supervenes. In such cases reference should be made to the awards for the underlying injuries or condition, suitably adjusted to reflect the fact (if it be the case) that the claimant knows that death is approaching, and the period of suffering.Yet there are many cases in which a serious injury is followed relatively quickly by death. Factors that inform the level of general damages include the nature and extent of the injury, the claimant’s awareness of his impending death, the extent or pain and suffering or, in cases where the claimant is unconscious for all or part of the period, loss of amenity.|
|(A) Full AwarenessSevere burns and lung damage followed by full awareness for a short period and then fluctuating levels of consciousness for between four and five weeks, coupled with intrusive treatment||£15,000 to £17,000|
|(B) Followed by UnconsciousnessSevere burns and lung damage causing excruciating pain but followed by unconsciousness after 3 hours and death two weeks later; or very severe chest and extensive orthopaedic injuries from which recovery was being made, but complications supervened||£7,500 to £10,000|
|(C) Immediate Unconsciousness/Death after Six WeeksImmediate unconsciousness after injury, and death occurring after six weeks||£6,000|
|(D) Immediate Unconsciousness/Death within One WeekImmediate unconsciousness, or unconsciousness following very shortly after injury, and death occurring within a week|
Awards in disease cases
As stated in the Guidelines awards for pain and suffering prior due to disease can be far higher.
- The most recent case where pain and suffering is considered is Patricia Melanie Nicholas (Executrix of Doris Timbrell) –v- Ministry of Defence  EWHC 2351 where £40,000 was awarded (the deceased did not die as a result of the asbestos).
The judge considered the variations of awards in mesothelioma cases, reviewed the history of the guidelines in detail and explained the important factors in determining damages.
“40. I am concerned at the emphasis which successive editions of the JSB Guidelines have placed on the primacy of duration of symptoms when determining the appropriate award of damages for PSLA in a mesothelioma case. The commentary states that the duration of symptoms “account for variations within the bracket”. Now that the courts have dealt with many hundreds of mesothelioma claims, it is evident that there are a large number of factors other than duration of symptoms that will (or should) affect the level of award made in an individual case.
- I share the view expressed by Senior Master Whitaker in Smith that one of the factors to be taken into account is the extent and effects of the invasive investigations that a claimant/deceased has had to undergo. Senior Master Whitaker also mentioned radical surgery, which can be unpleasant and painful. To that I would add also the chemotherapy and radiotherapy that may be administered in an attempt to prolong life and often produce distressing and debilitating side effects. Another factor is the type (or, in some cases, such as Smith, the types) of mesothelioma from which the claimant/deceased suffered i.e. whether it was peritoneal or pleural. There are also cases, as described by Dr Rudd (see paragraph 14 of this judgment) where the tumour spreads to encase the lungs and where other organs become involved as a result of the spreading of the tumour or metastasis, causing additional pain and/or breathlessness.
- The level of symptoms must be a key factor. If the symptoms (in particular pain) are not or cannot be effectively controlled, that is an important consideration. As Senior Master Whitaker observed in Smith, it must be borne in mind that, typically, the worst symptoms of pain occur in the last weeks and days before death and that the symptoms immediately preceding death can be particularly severe. I consider that it is relevant to bear in mind also that, even if a deceased’s death has in the event been relatively peaceful, he or she will have been fearful since being told of the diagnosis of mesothelioma that a painful and distressing end lies in store. Obviously, the duration of the symptomatology is also a factor, although not of itself determinative of the level of award.
- The level of award will also be affected by matters such as the domestic circumstances and previous state of health and level of activity of the claimant/deceased. A young fit man, with a wife and dependent children, an active life and what would (but for his mesothelioma) have been a long life expectancy will suffer a very considerable loss of amenity as a result of his illness and the knowledge that he will die prematurely. He is also likely to suffer heightened distress and anxiety at the prospect of leaving his family to cope. By contrast, an older claimant/deceased may not have had those particular anxieties and may, because of his/her age, health and situation, experience less of a restriction of his/her activities as a result of the onset of illness. It seems to me that these considerations should also be taken into account. It is important to remember, however, that a person of any age who is informed that his or her life will be cut short by the effect of a harmful substance to which he or she has been wrongfully exposed is likely to suffer a good deal of distress.
- The list of factors to which I have referred is not of course intended to be exhaustive. I merely wish to illustrate the point that the assessment of damages in mesothelioma cases is far more complex than the emphasis in the JSB Guidelines on “duration of symptoms” would suggest. Of course, most judges are well aware of this and, as illustrated by many of the cases to which I have referred, routinely take into account a wide range of other factors. However, the current terms of the commentary contained in the JSB Guidelines tend to encourage the “pigeon holing” of claims by reference to duration of symptoms alone. There is a real risk that cases may be settled or awards made without those involved taking sufficient account of other important factors.
- I am also concerned at the significant reduction of the lower level of the bracket of awards contained in the latest edition of the JSB Guidelines. The figure of £35,000 is well below all the awards I have referred to, save for those in Gallagher and Cameron (and Cameron would be worth £40,000 today). In the cases of Storey and Dunn, the awards made were below the lower end of the bracket in the edition of the JSB Guidelines then in force, but still significantly in excess of £35,000. It is difficult to understand the basis for that figure.
- The effect of the lowering of the bottom end of the bracket is to reduce the mid-point of the bracket from £67,000 (current value about £74,200) in the ninth (2008) edition of the JSB Guidelines to £59,735 (current value £63,000) in the tenth (2010) edition. This will tend to depress the level of damages awarded in an “average” case of mesothelioma where there is no unusual feature that would take the case out of the “norm”. Such an outcome would not, it seems to me, be consistent with the pattern of awards by judges made in the past.”