Novel heads of loss — loss of chance of inheritance

Introduction

Schedules of loss are a key document within clinical negligence claims. The purpose is to set out the financial losses suffered by a claimant due to injury and/or illness suffered as a result of alleged negligence. The main typical heads of loss include pain and suffering, and past and future losses. Some of the most common heads of loss include loss of earnings, care and assistance and travel expenses.

Schedules of loss often look different for fatal claims involving a patient who has passed away. We have recently come across a niche head of loss in the context of a fatal claim. In one claim we recently dealt with, the schedule of loss raised the question as to whether a claim can be brought for loss of inheritance under a financial dependency claim.

In this commentary, we consider whether such a claim is likely to be recoverable in law and what is the likely prospect of a court awarding this.

Background

The claim was brought by the widower on behalf of his late wife for alleged delay in diagnosis and treatment resulting in her death. Liability was admitted and settlement discussions took place between the parties.  

Claim under the FAA

Within the claimant’s schedule of loss, they included a claim for loss of chance of inheritance for a sum of nearly £100,000. The patient’s mother died five months after her daughter. The will made the patient the sole beneficiary of the estate, save for small gifts to her grandchildren, but if the patient were to pre-decease her mother, the estate would be equally distributed between the grandchildren.

As the patient died before her mother, the estate, which totalled approximately £150,000, was distributed to the grandchildren. In the absence of negligence, the claimant’s solicitor argued the patient would have inherited that amount, forming part of the joint matrimonial pot. The widower claimed the loss of inheritance as part of his dependency. The conventional 66.67% was claimed (Harris v Empress Motors). .

The claimant relied on the case of Pickett v BREL [1980] AC 136, a case dealing with lost years (predominantly), to show the passage, by implication, supported a claim for loss of inheritance. In the dissenting judgment of Lord Russell, the following is stated:

"The problem is this, was the Plaintiff at the time of judgment entitled to damages on the ground that as a result of the wrong done to him his life has been shortened and that he will not in consequence receive financial benefits which would in the ordinary course of events have come to him during those lost years… Suppose a Plaintiff injured tortiously in a motoring accident, aged 25 at trial, with a resultant life expectation then of only one year.  Suppose him to be life tenant of substantial settled funds. If the lost years are to be brought into assessment of damages, presumably allowance must be made for that part of a life interest which he would have received but will not receive. So also if he had a reversionary interest contingent upon surviving a life in being then aged 60: he will have been deprived of the probability of the funds coming to him during the lost years. Again, he might at the trial be shown to be the sole beneficiary under the will of a rich relation whose age made in probable that the testator would die during the lost years, and whose testimony at the trial was that he had no intention of altering his will: in such cases presumably an allowance in damages would require to be made for the lost, and maybe valuable, spes successionis: unless the testator was an ancestor of the Plaintiff and the Plaintiff was likely to have children surviving him. (Section 32 Wills Act 1837). I refer to these possible situations in order to suggest that the problems which exist even in the field of earnings in the lost years may, in a given case, be far more difficult of solution once there is introduced into the field of damages allowance for financial "loss" of that which death ex hypothesi forestalls. Damages are compensatory, not punitive: so that is no valid argument that a wrongdoer should not benefit by inducing early death rather than a full lifetime of pain and suffering: that must happen anyway, e.g. when an infant is killed outright." 

This was the most contentious and novel element of our claim, but this is not a head of loss where the funds have been lost as a result of the death, but simply passed to the grandchildren. The claimant relied on the above obiter dictum passage in support of loss of inheritance being a viable head of claim.

General principles and case law

There appears to be no principle in law or case law which specifically allows or prevents a loss of inheritance to be claimed as part of a loss of financial dependency claim but we consider some of the law and legal principles which may apply below that would suggest it may not be viable head of loss.

Key sections within the Fatal Accidents Act 1976 (FAA) are as follows:

• Section 3(1) — "In the action, such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death of the dependants."
• Section 1(2) sets out the basic principle that a dependency claim is usually brought by the executors on behalf of the dependants — “Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person (“the deceased”) whose death has been so caused.”
• Section 1(3) provides that dependants who can bring a fatal claim are defined as: spouses, civil partners, any person who was living as a spouse or civil partner for two years prior to death and was so living immediately before the date of death, parents and ascendants, children or descendants, persons treated as a child of the family and, finally, siblings of the deceased and children of those siblings.
• Section 2(3) states only one action can be brought on behalf of the estate and dependents.

Looking at the law, we consider it would be unattractive for the court to pay out inheritance which has simply skipped a generation.

In the case of Thompson v Arnold [2008], the High Court considered the interpretation of Read v Great Eastern Railway Co [1867-68] where it was held that a claim under the Fatal Accidents Act by dependants of a victim of a personal injury that proved fatal could not be brought where damages had been already awarded or had been agreed in respect of the victim's injury during her lifetime. The summary notes confirm that the focus of the Fatal Accidents Act is to ensure payment of damages by a defendant who would have had to pay if the death had been avoided. If payment was made during a claimant’s lifetime, then this has been addressed already.

In section 85 of the Read judgement, Blackburn J. said “The intention of the enactment was that the death of the person injured should not free the wrongdoer from an action …” which echoes the recital of Lush J agreeing, said, “The intention of the statute, is not to make the wrongdoer pay damages twice for the same wrongful act, but to enable the representatives of the person injured to recover in a case where the maxim actio personalis moritur cum persona would have applied.”

However, the difference between this reported case and our case is that the defendant had already paid out damages and was being asked to pay out the same again, whereas here the inheritance money has simply moved rather than being lost altogether. However, we consider the same principles to be analogous, in that where the money has already been paid, it would be double recovery to repay it to the dependant.

Conclusion

Whilst the claimant’s general argument appears logical, there is a balance to be struck between compensating the dependent for the loss and not paying out a sum of money which has already been passed to the grandchildren.

Case law which considers the purpose of the Fatal Accidents Act notes the importance of not allowing double recovery.

Further, we consider the loss is remote. Whilst the inheritance in the present case had crystallised by the time the claim was brought, at the date of the patient’s death the “loss” had not crystalised. It was by chance that her mother died within six months of the deceased, but in other cases the death of the testator might not happen for many years after the patient’s death. It would be arbitrary to impose a cut-off point for calculating if a loss has been suffered. The claimant (widower) would also need to show (a) that the will would not have been changed or be re-written before the testator’s death and (b) that the deceased would have received the money which would have gone into the matrimonial pot, and not been spent by the testator or gifted to others. These matters will be difficult to evidence.

In the claimant’s eyes, the loss crystalised as the deceased’s mother died before damages had been assessed, but if she were still alive, it is inconceivable that the claimant would argue that he is entitled to an award for what could only be described as, at best, a loss of chance. It is also important to recognise that we cannot say if the claimant were to benefit from the estate of one of the grandchildren in the event that they pre-deceased him, which could see him recovering twice for the same loss which would be a clear case of betterment.

We have not come across such a claim before. Restitutio in integrum underpins all claims for damages. For the reasons outlined above and considering the general principles of quantification of damages set out in statute and case law, we believe there to be merit in challenging this head of loss. Thus, in our case, the head of loss was resisted as part of settlement negotiations.