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Remedial order to update the Fatal Accidents Act – the implications in elderly deaths

Posted: 29/10/2019

The Fatal Accidents Act 1976 (FAA) allows relatives of a person killed through negligence to obtain damages. This includes a claim for dependants such as children or a spouse to claim for a loss of services or income that the deceased person provided. It also includes the ability for the family (as opposed to the estate) to recover the cost of the funeral expenses of the deceased.

In addition, the Act allows specified family members to claim a bereavement award, set at a statutory level of £12,980. (This is acknowledged to be a nominal sum and not in any way likely to reflect adequate compensation for the loss of a loved one.) The class of potential claimants is limited, and includes married partners, civil partners, and parents of a child. Specifically, as addressed in this article, the Act currently excludes unmarried cohabiting partners.

This was the subject of a case in 2017 brought by Jakki Smith, after John Bulloch, her partner of 16 years died due to clinical negligence. Ms Smith was, under the terms of the FAA, not entitled to a bereavement award against Lancashire Teaching Hospitals because they were not married.

Her case was appealed under Articles 14 and 8 of the European Convention on Human Rights (the prohibition of discrimination and the right to private and family life) and Ms Smith was successful – the Court of Appeal found that the FAA was incompatible with the ECHR. Unfortunately for her, this did not mean that she would be successful in her claim, but a declaration of incompatibility compels the UK government to address the discrepancy for future cases.

The update to the FAA was therefore considered and a remedial order drafted at the Select Committee stage. Importantly, the Select Committee also made recommendations that included expanding the class of beneficiaries to include siblings or parents of adult children. The committee considered that the restriction of classes appeared unjustified and discriminatory. Would the sibling of a deceased person, it asked, be any less distressed by the loss of a brother or sister, than a spouse would be?

This recommendation opens up the potential that a bereavement award may be more widely available, if the government adopts these changes. While the overall increase in the cost of these awards to insurers and NHSR is likely to be minimal, it does present a possible opportunity for families to seek legal recourse where they are currently unable to.

Specifically, at present when an elderly person dies as a result of an accident or clinical negligence, the value of the claim is often very modest.

If that person does not leave behind a spouse, and is not providing services or financial assistance to a dependent, the claim may be limited to funeral costs only, and in some cases little or no award is made for general damages (‘pain, suffering and loss of amenity’).

Because of strict rules governing the proportionality of legal costs, these cases are often impossible for claimant solicitors to take on as they may not recover their costs acting under a conditional fee agreement, and clearly it is undesirable for a bereaved family to fund a very low value claim on a private basis with the same risk. Therefore a number of cases, despite valid concerns over patients’ treatment, are not investigated. This is patently an issue preventing access to justice.

A change in the FAA to include parents of adult children, and particularly siblings as recipients of a bereavement award would put in place a baseline for damages in a number of cases involving elderly deaths. That baseline would be £12,980 at present levels although this is also the subject of review by the government. Assuming the award remained at around the same level or greater, this would then potentially overcome the proportionality issue in a number of cases.

Philippa Luscombe, partner in Penningtons Manches Cooper’s clinical negligence team, commented: “Currently these are only recommendations by the Select Committee, and we will have to wait to see what policy the government adopts. However, any widening of the class of recipients has to be welcomed as it can only help to improve access to justice for bereaved families. While the courts are rightly keen that parties do not incur vast fees on low value claims, it cannot be just that negligent deaths of the elderly are not investigated purely on monetary grounds, and this will help greatly to right that imbalance.”

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