Losing a loved one or family member is extremely difficult. One of the most common questions we are asked is whether a claim can be brought if someone died as a result of medical negligence or personal injury. The simple answer is yes, but the rules can be complicated depending on the nature of the case, the family dynamic and whether or not a Will was left.

In what scenario can a claim be brought?

There are commonly two scenarios in which a claim could be brought in this context:

1. If an individual was involved in a fatal accident arising from negligence
2. If a Claimant has passed away during the course of a personal injury or medical negligence claim

Bringing a Fatal Accident claim

The law is governed by two pieces of legislation:

1. The Law Reform (Miscellaneous) Provisions Act 1934
2. The Fatal Accidents Act 1976

Under the Law Reform (Miscellaneous) Provisions Act 1934, a claim is brought on behalf of the deceased’s estate. Under this legislation, there may be entitlement to the following claims:

1. General Damages: this is for pain, suffering and loss of amenities (i.e. the impact to the Claimant’s enjoyment of life). The claim will be limited to the period from when the negligence occurred to the date of death.
2. Special Damages: these are financial losses which the deceased accrued following the negligence until the date of their death. Examples include – loss of earnings; travel expenses; prescriptions; care and assistance; funeral expenses; property damage; and medical treatment.

A claim under the Fatal Accidents Act 1976 is brought on behalf of the dependents of the deceased.

The main claims under this piece of legislation include:

1. General Damages: this is as described above. It can only be claimed once, but the law allows it to be claimed under either legislation.
2. Special Damages: this is as described above and again, it can only be claimed once, under either legislation.
3. Bereavement Award: this is a notional sum awarded if the death has occurred as a result of negligence. It is a fixed sum that currently stands at £15,120. The only people who are entitled to this award are:
   a) A wife, husband or civil partner of the deceased
   b) An unmarried couple who can prove that they were living together for at least two years prior to the death
   c) In respect of a deceased unmarried child under 18, between the parents or to the mother.
   The list for the notional sum is frustratingly narrow and if there is more than one individual claiming a bereavement award, then the award is split between the parties.
4. Dependency Claim: these apply to cases where someone was dependent on the deceased for services, such as care, babysitting, gardening help or DIY. Dependency claims also extend to those who were financially dependent on the deceased – typical examples of this include when the deceased was caring for someone, or when father or mother has passed away leaving a child behind.

Who can bring a claim?

As stated earlier, if you are a Dependent then you may be able to bring a claim under the Fatal Accident Act 1976.

Anyone wishing to bring a claim under the Law Reform (Miscellaneous) Provisions Act 1934 must consider if there is a Will or not.

If there is a Will

Usually, if the deceased has left a valid Will then the individuals/corporation/firm or company appointed as the executors/executrices of their estate will be those legally entitled to bring a claim on behalf of the estate and make an application for the grant of probate. The executors/executrices, also known as a personal representative/s, will then have an obligation to distribute the estate (including any compensation received in relation to any potential claim) in accordance with the terms of the Will.

Where there is a Will that either fails to name executors, or the executors do not wish to act, it would be the responsibility of the beneficiaries in the Will who are set to inherit some or all of the estate once all debts, expenses and gifts have been settled (residuary beneficiaries) to apply for a Grant of probate. Although the Will is still valid, there is no longer an executor in existence so the residuary beneficiaries would be appointed in their place as administrators of the Will. They would then be entitled to bring a claim on behalf of the estate.

What if there is no Will?

If the deceased died intestate (i.e. without a valid Will) then there are certain individuals who would be entitled to act as a personal representative of the deceased’s estate. Entitlement is determined by a strict order set out in section 46 of the Administration of Estates Act 1945. The order of priority to act as administrator is:

1. Surviving spouse or civil partner
2. Children of the deceased or their children
3. Parents of the deceased
4. Brothers and sisters of the whole blood or their children
5. Brothers and sisters of the half blood or their children
6. Grandparents
7. Uncles and aunts of the whole blood or their children
8. Uncles and aunts of the half blood or their children
9. The Crown

The above individuals will be entitled to bring a claim on behalf of the deceased’s estate and apply for a ‘Grant of Letters of Administration’. Following intestacy, executors have an obligation to distribute the estate (including any compensation) according to the intestacy provisions as set out above.

Practicalities

There are time limits as to how long an executor/personal representative has to bring a claim and often this will be three years starting from the date of death.

If you trust, or would like a certain individual to have the authority to act on behalf of your estate to bring any potential claims following your passing then consider making a Will to ensure your preferred individuals are able to act.

How we can help

If you wish to discuss the nature of your circumstances in respect of bringing a claim resulting in death from medical negligence or personal injury, then please do not hesitate to contact us on 020 7833 4433.