SMQ Legal’s civil team headed by Suezanne specialise in various claims that can be brought in civil litigation, under the Human Rights Act, as well as personal injury. If you require information about such a claim, please contact the Oxford office for a free appointment. One of our interns explores the types of claims that can be made following the death of a loved one …
Civil Claims can be brought following inquests under several grounds. A claimant may bring a claim for breaches of Articles 2,3 or 8 of the European Convention of Human Rights; this is under the Human Rights Act 1998. A claim may be brought in the law of negligence, under the Law Reform (Miscellaneous Provisions) Act 1934. A dependency may bring a claim under the Fatal Accidents Act 1976 and finally a claim may be brought for psychiatric injury by a secondary victim.
Bringing a Claim
Section 7 (1) of the Human Rights Act 1998 outlines that a person who claims that a public body has acted in a manner which would be deemed unlawful by section 6 (1) of the act; then they will be able to bring proceedings against that public authority and rely on the convention rights. An estate of an individual can bring the same claim under Law Reform (Miscellaneous Provisions) Act 1934; there is a significant overlap between these separate claims.
Article 2 of the European Convention on Human Rights
For a claim to be successful here it must fall within a set of ‘well-defined circumstances’ and must be ruled that article 2 does directly apply. Article 2 outlines that ‘every individual has the right to a life which shall be protected by law.’ This is in relation to deaths within a community setting, as deaths in prisons or other detention facilities are covered by the Mental Health Act 1993. The key case in this area is the case of Rabone v Pennine Care NHS Foundation Trust  2 AC 72. The court here established four step criteria which is used to establish if a claim can be successful. For a claim to succeed there must be:
- The existence of a real and immediate risk to the individual’s life- being necessary but not sufficient contribution for the exercise of a duty
- An assumption of responsibility by the state for the individual’s welfare and safety (including exercise of control)
- The presence of a vulnerability of the individual concerned
- The nature of the risk being an exceptional risk, beyond an ‘ordinary’ risk of the kind that individuals in the relevant category should be reasonably be expected to take
The court in this case ruled a risk of suicide between 5% and 20% to be deemed as an exceptional risk.
The Strasbourg case of Osman v UK  29 EHRR 245 laid out that a breach of an article 2 ECHR duty where “authorities knew or ought to have known at the time of the existence of a real and immediate risk to life of an identified individual… and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk” Therefore the knowledge of a substernal risk and the failure to take adequate steps to safeguard against that risk are vital to establishing a claim under Article 2. As previously stated, the court in Rabone ruled that a real risk was judged to be a risk deemed as between 5 and 20%; an immediate risk is one which is ‘present and continuing.’ Another key Strasbourg case which discusses the presence of a known risk is Fernandes de Oliveria v Portugal  ECHR 106. This case was in relation to the operational duty of care for patients detained in involuntary psychiatric centres; the court held that the court held that they do have in principle have an operation duty of care for psychiatric patients who are involuntarily detained as a protection from suicide this was due to their specific vulnerability to that risk. The court laid out five step criteria in relation to when a public authority should be aware of a known risk. This is when there are:
1) A history of mental health problems
2) Gravity of the mental health condition
3) Previous attempts to take part in self harm or suicide
4) Presentation of suicidal thoughts or threats
5) Signs of mental or physical distress
The need for a causation element for a claim under Article 2 is comparatively lower than the level required for liability in Civil Law; this is because there is no presence of the ‘but-for’ test as a causation element. The case of Opuz v Turkey  50 EHRR 28 established that an article 2 violation can be established by matters which had a ‘real prospect’ or ‘substantial chance’ of altering the outcome measures which are ‘judged reasonably, might have expected to avoid the risk.’ The claimant only must show a substantial chance of an outcome for a claim to succeed.
Claims made by an Estate under the Law Reform (Miscellaneous Provisions) Act 1934
Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 outlines that an estate may bring a claim to recover damages for several tortious actions, namely negligence or assault. This enables an estate to recover damages sustained by the deceased; as well as seek damages for pain, suffering and loss of amenity on their behalf. The courts here consider special damages when granting awards in this area, such as loss of earnings and medical expenses. The causation element follows a stricter ‘but-for’ approach due to the claim being brought in the tort of negligence and not as an infringement of Article 2. However, claimants cannot seek damages for an exemplary damages or projected loss of earnings as section 2 of the Act prohibits this.
Dependency Claims under the Fatal Accidents Act 1976
If a dependant brings a claim for any losses as result of a death it is covered by section 1 of the Fatal Accidents Act 1976. Section 1 outlines that a course of action may be brought for any ‘wrongful act, neglect or default’ which would have led to a course of action for damages anyway, even if the death had not occurred. The right to a course of action is for anybody who fully depended on the deceased and is again outlined in the Fatal Accidents Act at section 1 (2). It can be difficult to establish a clear course of action for a dependant as all elements of a tort must be present. Therefore, for example, for the tort of negligence all elements must satisfied; thus, there must be a clear breach of a duty of care and the tests of ‘but-for’ and legal causation must be satisfied.
A claimant can claim for loss of future earnings as a result of the dependant’s death, however there must be substantive evidence to show this. Furthermore, pecuniary damages can include loss of a parent’s daily support and care, as outlined in the case of Regan v Williamson  1 WLR 305, along with a ‘bereavement award.’
Quantum is the amount of money awarded in damages to a successful claimant, and they can be varied for post- inquest civil claims. The leading domestic authorities in this area are the Court of Appeals decision in Van Colle v Chief Constable of the Hertfordshire Police  EWCA Civ 325 and the Supreme Court’s decision in Rabone v Pennine Care NHS Trust  UKSC 2;  2 AC 72. In the case of Van Colle the court awarded damages of £10,000 to the deceased’s estate and then £7,500 to each surviving parent; this decision was based on four decisions made by the European Court of Human Rights which lay out how to award damages in cases with little to no evidence about the underlying evidence of pecuniary or non-pecuniary loss. Therefore, the courts have a range of ways in which they can decide what is deemed a fair amount for a successful claimant.
In response to the Hillsborough Disaster of 1989; the House of Lords in Alcock v Chief Constable for South Yorkshire Police  1 AC 310 established that a secondary victim can only bring a claim if they have a ‘close tie of love and affection with the victim’ and ‘were in close proximity to the event and directly perceived the incident,’ and finally ‘the claimants illness was caused by a sudden and shocking event.’ This was reaffirmed by the Court of Appeal in Liverpool Women’s Hospital NHS Foundation Trust v Ronayne  EWCA Civ 588. As a result of this claims brought by loved ones for psychiatric illness, in relation to deaths of prisoners and other detained persons, fail due to the proximity of the event. Furthermore, if the death is heard for a third party and not directly witnessed it is not ruled to be a ‘sudden and shocking event,’ therefore a claim in the tort of negligence does not usually succeed.
However, a secondary victim may be successful with a claim with a claim for pecuniary loss made under the Human Rights Act 1998. Cases from the European Court of Human Rights, such as Yukos v Russia and Breyler v Italy, establish that if an applicant can prove a direct causal link between the violation and the losses suffered then a claim may be successful. The case of Smith and Grady v United Kingdom was heard because of a dismissal of two LGBT+ soldiers from the British army on a discriminatory basis. The claimants sought damages for loss of earnings, the difference between their civilian and service income and loss of pension rights. The court outlined that a precise calculation of pecuniary losses was not possible because of ‘inherently uncertain character of the damages resulting from the violations.’ For a claim to be successful there must be a substantive breach and not a procedural breach of Article 2 of the European of Convention of Human Rights.
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