Wednesday, 8 January 2014

Negligently Causing Death

Sometimes a judicial decision will challenge all sorts of assumptions you have made when dealing with many similar cases over the years.

In Brown-v-Hamid [2013] EWHC 4067 (QB) the claimant was the widow and administratrix of Ronald Brown, deceased. He had died of pulmonary hypertension in 2012, after having commenced a clinical negligence claim which was continued after his death by his widow. Mr Justice Jeremy Baker found that the defendant's clinical negligence in failing to give Warfarin at a particular time in 2007 had accelerated the onset of more severe symptoms associated with Mr Brown's pre-existing pulmonary hypertension by about 12 months. However "although the non provision of Warfarin may have allowed the development of some further symptomatic emboli, the size of these was such that given the history of pulmonary hypertension in this case, they would have only made a relatively modest contribution to the inevitable progression of Mr Brown's condition." [36].

A bereavement award was made under the Fatal Accidents Act 1976 and awards under that Act are only made where "death is caused by any wrongful act, neglect or default...." So, the Court must have found that Mr Brown's death in 2012 was caused or materially contributed to by the defendant's negligence.

The Court made awards for loss of earnings the deceased would have enjoyed and services to replace those he would have given "but for the onset of more debilitating symptoms" [41-42]. Logically these must have been claims by the estate under the Law Reform (Miscellaneous Provisions) Act 1934, being claims which the deceased would have brought in a personal injury claim prior to his death, and which survived for the benefit of the estate.

Funeral Costs

It is of some interest, however, that the Court refused to make awards in relation to funeral expenses since "they would have had to be shortly incurred in any event and there is no evidence that they have been increased as a result of the defendant's negligence." [43]. No dependency awards were made because the awards made for loss of earnings and services (to the estate) fully compensated for the period of loss caused by the defendant's negligence [45].

We will all die. Most of us will have a funeral. Most often our loved ones will pay for the funeral. In nearly all FAA or LRA claims the costs of a funeral would have been incurred at some point in any event. Should the short period of acceleration of death justify the refusal to make an award for funeral expenses?

The FAA provides for damages where "death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action ...” 
(s.1(1) FAA). Provided this test is met, I am not clear as to the logical basis for depriving a claimant of an award she would otherwise have been entitled to, on the basis that the death has been accelerated by a short period (if indeed 12 months is a short period). All FAA claims arise because negligence has accelerated death, because death is always inevitable. The Courts do not look at whether, but for the negligence, the claimant would have lived long enough to have incurred funeral costs or to be bereaved.

On the other hand should awards be made for bereavement or funeral costs if negligence can be proved to have caused injury and shortened life by one week, one day or one hour? Is there a line to be drawn? If so where, and why should the line be different for a claim for funeral costs than for a claim for the bereavement award?

I am not at all convinced that the decision on funeral costs in this case was correct, but it may be seized upon in other cases, in particular clinical negligence claims where negligence has hastened death.

Loss of a Spouse's Unquantifiable Support

The Court also refused to make an award for general damages for the "loss of special consortium" - also known as a Regan-v-Williamson award - because there was "a distinct overlap with the award for damages for bereavement" and "damages are also to be awarded for the loss of DIY services." [46].

Whatever view is taken of such awards, they have long existed alongside the statutory bereavement award and they are, by definition, for intangible or unquantifiable losses. So, to deprive a claimant of the award on the basis that there was also a bereavement award and that there are quantifiable losses (for DIY!) seems surprising. I myself am hopeless at DIY, so presumably my loved ones can look forward to a Regan-v-Williamson award.

Happy New Year.

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