Fatal Accidents – law, practice and appropriate support

24 May 2019

The issue many families have following a fatality is they do not know what they can do. If the fatality occurs in hospital the families may be advised that there is no need to get advice or to have a post mortem; in road traffic cases the police may not be able to provide the support or advice that is needed unless a specialist family liaison officer is appointed; following an accident at work the HSE may be involved and support is variable for the families of those who have been lost. Further it is typical that many a bereaved will start the Inquest process without representation.

It is important to seek advice at an early stage because the law has many inequities for the family of a deceased.

Clinical Cases

Inquests do not always happen following a death in a medical setting. Currently for example a stillbirth cannot be investigated by a Coroner, yet a neonatal death with a few minutes of life can. It is an artificial distinction. Should one life be valued greater than another?

When an Inquest is called, it is very important to be represented, albeit PALS (patient liaison service) my try to suggest otherwise. Unfortunately many of my clients have come to me after an Inquest has already opened or has concluded and no-one had previously advised them of the need or benefits of representation.

Other types of Claim

The liaison services following a death at work or in a road traffic accident vary in quality and the advice provided. Some clients will again attend an Inquest without representation because they did not know they were even entitled to be represented.

Purpose of the Inquest

This is a facts gathering process to establish who the person was, when they died, where they died and how they died. It is a learning process. Unfortunately the legal system even at this has created inequity. The State or a hospital will be state funded for their representation at an Inquest. A Corporate body will be state funded. The emergency services will be state funded. In most cases the bereaved family will not qualify for Legal Aid. They may be walking into a Coroners Court containing 5 or more lawyers for the other interested parties. If they are not represented they will be unable to access the benefits of the Inquest process and the Coroner will more likely than not favour the commissioned evidence. Being represented means that the evidence can be appropriately challenged and a balanced finding of fact can be made. It can assist with closure for the bereaved. I like many other senior solicitors will act at Inquests on a no win no fee basis, on the understanding that we will seek recovery of our fees if a claim for negligence follows thereafter.

After the Inquest

After the Inquest the next option and often the only option is to seek recompense in damages. To see the law but the family of the deceased in a position that they would have been but for the loss of the deceased.

That is however in itself too simplistic. The law of damages is a whole variable beat of interpretation. Every example would give a different outcome.

A stillborn baby does not lead to a mother getting an award of bereavement damages pursuant to the Fatal Accidents Act 1976, but a neonatal death does. The father does not generally qualify for bereavement damages in this sort of case. An award may be made to the mother for failure to carry the baby to a successful delivery.

An unmarried partner of the deceased (on the current interpretation of the law, a proposed statutory amendment should change this) does not get awarded Bereavement Damages. A widow will get bereavement damages.

The bereavement damages themselves vary according to which part of the United Kingdom the deceased died in.

An award may be made for pain and suffering in the period up to the death. The loss of life is valued according to the length of suffering, not the fact of death.

There may be a claim for a member of the family as a primary or secondary victim themselves for their own physical (typically maternal) or psychiatric injuries.

The reasonable costs of a funeral or repatriation may be recoverable.

Loss of dependency (provided you are a qualifying dependant) is recoverable. This can be loss of earnings, loss of pension and loss of support, but limited to remove that which the deceased used for her/himself.

There are a myriad of other potential losses.

Even lawyers not used to practicing in fatal accidents will often get lost in the technicalities of this area of law.

The best guidance we can give is instruct a specialist fatal accident lawyer early. They will guide you through the Inquest process and also will ensure that the obstacles placed in front of you by the Defendants and the State can be properly overcome.

Currently I am instructed in respect of fatal accidents involving a failure to spot a fracture that led to a pulmonary embolism; a death following a regulated drugs trial and following a road traffic accident. Each of these cases have caused the utmost distress for the bereaved family. Each had an Inquest. Each would not have been able to be navigated without representation. Each was funded by a no win no fee agreement. In each case the other interested parties were state funded. Each case will involve a six figure final settlement.

The Inquest and Fatal Accidents team is a cross department team led by Jerard Knott, Senior Associate Solicitor, an APIL Accredited Senior Litigator and Clinical Negligence Specialist. It also includes Andrew Bell, Director and Solicitor Advocate and Lynne Ainsworth, a Law Society Accredited Clinical Negligence Panel Member. The team has experience in all aspects of fatal accidents, having represented families of people killed in medical, workplace, industrial and road traffic accidents.

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