Following the tragic loss of a loved one, legal support can guide the family through what is an emotionally and financially traumatic experience.
The sudden and devastating death leaves a void which cannot be filled by compensation but making a bereavement claim can help to ease the financial burden for dependants of the deceased.
Associate Solicitor Philip Austick provides insight into how a fatality claim differs from a standard personal injury claim, including who is eligible to make such a claim, the types of compensation which can be claimed for and the law which guides the claims process.
In a personal injury claim, a person can seek compensation for their own injury and those losses they have already incurred or will incur in the future; the rules as to how this is done and how much someone is entitled to are largely governed by decisions made in past cases by Judges, this is known as the precedent system.
Fatal accident claims are somewhat different and exist for the benefit of any dependant of the deceased or for their legal estate – these claims are governed entirely by statutes which have been passed by Parliament.
When someone is killed in a road traffic accident or dies prior to their claim reaching its conclusion, any claim, which could arise if there was an element of fault against another party, survives for the benefit of their estate.
Investigations surrounding liability in a fatal accident claim can be difficult, especially in a case where the victim died at the scene.
A copy of the police collision investigation report is vital to enquiries.
In a case where there are criminal charges, the outcome of the prosecution is important because if it results in a conviction it may be relied upon as part of the claim to show fault against that person.
Where there is no prosecution, a coroner’s inquest is key, because the coroner will run an investigation which enables them to determine the cause of death.
The inquest is an inquisitorial hearing, which means the coroner isn’t there to determine fault for the accident, but to try and establish the circumstances leading up to the death.
Once liability enquiries are complete and it is determined who is liable, a claim for compensation may be made.
With a fatal accident claim there are two main causes of action and each is governed by its own Act of Parliament, which sets out what can be claimed for and who can make such a claim.
The Fatal Accidents Act 1976
The Fatal Accidents Act 1976 allows a dependant, or dependents of the deceased to recover compensation which reflects any losses arising from the person’s death.
These losses are considered both financially or for services, from the date of their death up to the stage where they otherwise would have ceased to provide for the dependant or dependents.
Who is considered a dependant under the Act?
- A wife or husband
- A former wife or former husband
- A civil partner
- A former civil partner
- Someone who was living with the deceased in the same household for at least 2-years immediately preceding the death, in a relationship akin to that of a husband or wife
- Any person who was treated by the deceased as a parent
- Any child or other descendant, such as stepchildren from a marriage or civil partnership
- Any other family member who can show they were dependant on the deceased at the time of death
A financial dependency claim often includes compensation which reflects the loss of financial support the deceased would have provided, a loss typically suffered by the surviving spouse, partner or any children.
The court will allow the compensation to be apportioned between those affected for the period they are likely to be in education, including higher education.
The loss is based on the projected income of the deceased, including any additional benefits they would have been entitled to as part of their work up to retirement and a pension thereafter.
A percentage of the money the deceased would have earned, which they otherwise would have spent exclusively on themselves, is not included in the compensation.
Where the deceased provided services, compensation is assessed on the period of time they could have continued had it not been for their death and the cost of paying for such services in the future.
What types of services can be claimed for?
- Home decorating
- Domestic services
- Maintenance of the home
- Caring for sick or disabled family members
- Dog walking for the life of the dog.
Any money which arises from a person’s death, such as a life insurance policy, are disregarded when assessing the compensation for dependency.
In addition, the prospects of remarrying or entering into another civil partnership are also disregarded even if the spouse has remarried or entered into a further partnership.
The compensation for bereavement damages is set by Parliament and where any claim arises on or after the 1st May 2020, the award recoverable for bereavement damages is £15,120.00, for all claims prior to that date, the award remains at £12,980.00.
The Law Reform (Miscellaneous Provisions) Act 1934
The Law Reform (Miscellaneous Provisions) Act 1934 allows a claim to be made by the deceased’s estate for losses which the deceased would otherwise have been able to recover themselves had the injuries not proven fatal.
It also allows for the continuance of a claim which the deceased may have already brought themselves but not concluded prior to their death.
The Act essentially permits the benefits of the claim that the deceased was bringing to survive for the benefit of their estate.
Very often, compensation included in this Act include compensation for pain, suffering and loss of amenity, just as in any other personal injury claim.
Though the damages are limited up to the date if death but are assessed in the same way as a conventional personal injury claim.
The Act also allows the estate to recover the financial losses which the deceased would otherwise have been permitted to recover themselves including any loss of income up to the date of death, loss of personal effects and other items of loss including any treatment costs or the value of any services given to him prior to death such as care or nursing services.
Funeral costs are often recoverable by the estate, subject to the cost being deemed reasonable and also subject to the costs of the funeral having been incurred by the estate in the first instance.
What can be claimed for under this Act is largely determined by what losses the deceased would otherwise have been able to recover themselves.
Whereas damages recoverable under the Fatal Accidents Act 1976 are awarded specifically to the dependents and the limited number of persons entitled to seek compensation for bereavement damages, the damages under the Law Reform (Miscellaneous Provisions) Act 1934 are awarded to the estate and from there to the deceased’s beneficiaries according to the deceased’s will or under the rules of intestacy.
How long do I have to make a fatality claim?
As with any personal injury claim, the time limit for bring a claim arising from a fatal injury is 3 years.
If the deceased was in the process of dealing with their personal injury compensation claim when they passed, the 3-year deadline would begin again from the date of their death. This allows the family to continue with their claim.
Fatal Accidents are normally representative, which mean an appointed personal representative of the deceased typically makes the claim on behalf of the dependents and the estate.
For this purpose, a Grant of Probate is required, which confirms a person’s authority to deal with the deceased person’s assets.
This is usually the executor of the deceased, appointed under a will.
Where there is no will or executor, Letters of Administration need to be obtained to appoint an administrator of the estate and give them authority to represent the estate in any claim.