#10460 - Fatal Accidents - Personal Injury and Clinical Negligence

FATAL ACCIDENTS

INQUESTS

Inquest procedure

• Opens at death

• Under s. 8(1) Coroners Act 1988, an inquest is required where there is a

  • Violent/unnatural death

  • Sudden death with unknown cause

  • Death in prison

  • Death in such place/circumstances as to require an inquest in pursuance of an Act

• Evidence is mostly oral

• Pathologist usually starts – up to coroner

• Own representative asks him questions last

• R. 22 Inquest Rules – no self-incrimination

• Coroner summation of evidence, determination and reports to prevent future deaths

Aim/purpose of inquest

• Strictly limited to establishing:

  • The identity of the deceased

  • How, when and where the deceased died

  • The particulars required by the Registrations Act to be registered concerning death

• Inquests are NOT to establish responsibility, blame or liability for the death

• Value to litigants

  • Documents

  • Witnesses

  • Lawyers attend and can follow up on evidence emerging

  • Lawyers should attend inquests on behalf of their clients

• Value of inquests

  • Spotlight of public concern

  • Families get closure

Coroner

• He is usually a qualified doctor AND barrister, although this is not a requirement

• The coroner is responsible for the inquest procedure and decides:

  • Post-mortem

    • Coroner will usually direct when a post-mortem takes place

    • The post-mortem report is vital evidence and immediate request should be made to the coroner for a copy

  • Documents

    • Coroner chooses which documents go before the court (no right to disclosure like in civil litigation)

  • Witnesses

    • Decides who will appear

    • Witnesses NOT obliged to answer questions which would incriminate them

    • If they do answer, they will waive this privilege

  • Evidence

    • What documents will be needed

• Sometimes coroner is joined by a jury (if the death occurred in prison/police custody)

Criminal prosecutions

• Where an accident results in a fatality, a criminal prosecution of those thought to be responsible will often follow

• If such a prosecution occurs, the claimant’s solicitor should attend court to obtain details of the circumstances of the accident and take notes of the evidence

Verdicts

• Industrial disease

• Want of attention at birth

• Accident/misadventure

• Unlawful killing

• Open verdict (i.e. insufficient evidence to reach a conclusion)

• Suicide

• Natural causes

• Neglect

Steps to take after the inquest

• Obtain transcript

• Letter of claim to council

• Obtain police accident report/plan/photos

• Interview witnesses and prepare statements

• Obtain documents from council

  • Works notes

  • Risk assessment

  • Requests for equipment e.g. road signs

  • Instructions as to placing of signage

• Consider accident reconstruction expert

• Calculate damages

Questions that may be asked of witnesses to a fatality

• Would you be able to confirm the exact location of the accident?

• Could you confirm the condition of the road surface/area that caused the accident?

• Do you think the (road) signs were reasonably brought to the attention of the drivers/people using the location?

• How are the reinstatements likely to affect the passage of motor vehicles?

• Given your experience, where do you believe the signs should have been placed?

• Based on your expert opinion, what is the likely cause of the accident?

• Based on damage, in your expert opinion how fast do you think vehicle was travelling?

• Do you remember seeing any warning signs?

• Did you see the brake lights come on? If so, how far away were you?

• Was the driver’s airbag inflated? Had it already been?

• Could you clarify the speed you believe the driver was travelling at?

• What gave you the impression that [THE DECEASED] was dead?

• How many signs did you see? Where were the signs?

• What would you estimate the speed of the car damaged?

• Can you confirm the driver was wearing his seatbelt?

• How many signs did you see?

• Can you confirm the speed the car was driving at?

• Would you describe [THE DECEASED] as a responsible driver?

• Has [THE DECEASED] been involved in previous accidents? If so, what?

CLAIM FOR COMPENSATION BY DEPENDANTS

Fatal Accidents Act 1976

• Created new cause of action – allows dependants to sue for the death of a person on whom they were dependant

• Claim usually commenced by deceased’s personal representatives

  • Can ONLY claim for pecuniary loss

  • Claimants must be able to show that, had the deceased been alive, he could have brought a claim in tort

• There are 3 possible claims under the act

• A claim under the FAA 1976 is exempt from the benefits recovery scheme operated by the CRU

1. Loss of dependency

• To claim, a person must satisfy 2 conditions:

  • Must fall within the class of ‘dependants’ in s. 1(2)

1. wife/husband or former wife/husband – (aa) civil partner/former civil partner of the deceased

2. any person

   1. was living with the deceased in the same household immediately before the date of the death AND

   2. had been living with the deceased in the same household for at least 2 years before that date AND

   3. was living during the whole of that period as husband/wife or civil partner of the deceased

3. any parent or other ascendant of the deceased

4. any person who was treated by the deceased as his parent

5. any child or other descendant of the deceased

6. any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage – (fa) – any person (NOT being a child of the deceased), who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership

7. any person who is/is issue of, a brother, sister, uncle or aunt of deceased

   • Stepchildren, adopted children, illegitimate children all treated as children

   • Must be a reasonable likelihood that the claimant has or will suffer financial loss as a result of the death

     • The loss must stem from a personal relationship and NOT a business one

     • E.g. person was a wage earner or home maker – need evidence

• Only 1 claim will be brought in respect of all dependants therefore it is important to indentify all prospective dependants

• Multiplicand

  • Taken from date of death

  • Net annual loss = deceased’s earning power) is reduced to take into account how much the deceased would have spent on himself – Harris v Empress Motors [1983]

    • 25% married with dependant children

    • 33% with no dependant children

    • But each case must be judged on its own facts

• Multiplier

  • Based on how long dependency would have continued – e.g. until the deceased retired, children turn 18 etc.

  • If there is evidence that the couple would have divorced, this CAN be taken into account

  • The wife’s remarriage prospects are NOT to be taken into account – s. 3(3)

  • Can claimed beyond retirement (i.e. up to death) for:

    • Home improvements

    • Housework

    • Childcare

    • Gardening

  • Use Ogden Tables

• In a case involving wife and children, take 2 separate multiplicands:

  • Take the age of the youngest child and work out how long the dependency will last

    • Multiply this multiplier by the [multiplicand which is reduced by 25%]

  • Then calculate the remaining period of just the wife’s dependency

    • Multiply this by the [multiplicand which is reduced by 33%]

  • Add the 2 figures together to get the total damages

• The calculation

  • Pre-trial losses

    • Calculate the actual number of years’ loss from the date of death to trial as the multiplier and apply to the multiplicand(s)

    • The resulting figure will be special damages and will attract interest

  • Future losses

    • Deduct the number of pre-trial years from the overall multiplier (the Ogden figure) and apply the balance of the multiplier to the multiplicand(s)

• Apportionment

  • Where is more than 1 dependant, the court will apportion damages between them

  • Where the claim is for a surviving spouse and child, the court will usually assess dependency of the widow alone, and then apportion a small amount to the child

  • BUT all cases are judged on their own facts and this may not always be appropriate (e.g. if the spouse cannot be trusted to provide for the child)

• Money NOT to be taken into account:

  • Inheritance from the deceased’s will

  • Insurance payments

  • Benefits

• Contributory negligence

  • S. 5

  • If the deceased’s own damages would have been reduced because of contributory negligence, under the FAA they would also be reduced

2. Damages for bereavement

• Limited class

• s. 1A – the only people who can claim for this are:

  • The wife/husband/civil partner of the deceased

  • Mother of illegitimate minor (at the date of death)

  • Married parents of a minor

• The amount is currently 12,980

• Only 1 award will be made, so the parents must split the money

• Children and cohabitees do NOT qualify

3. Funeral expenses

• s. 3(5)

• Reasonable funeral expenses can be recovered IF paid for by the dependants and not already claimed as part of a Law Reform claim

CLAIM FOR COMPENSATION BY THE ESTATE

Law Reform (Miscellaneous Provisions) Act 1934

• Can be brought by the claimant’s personal representatives on behalf of his estate - those losses which the claimant would have claimed for the injury if he was still alive

• Allowed a cause of action to survive the death of both the claimant and the defendant EXCEPT

  • Claims in defamation

  • Claims for bereavement damages (see FAA 1976)

• Deceased claimant can claim for non-pecuniary and pecuniary loss BUT

  • Under s. 1(2)(a) – there can be NO CLAIM for loss of income for any period after the claimant’s death

    • And remember pain and suffering is subjective, so if immediate death, no claim

  • S. 1(2)(c) – insurance payments, lump sum pension payments etc. will not be...