1. The law that Determines Who Can Claim
There are two main sources of law that govern fatal accident claims:
- Fatal Accidents Act 1976 – a claim by Dependants
- Law Reform (Miscellaneous Provisions) Act 1934 – a claim for the benefit of the deceased’s estate.
From the above statement, there are mainly two questions raised by clients:
- 1. What is a dependant?
- 2. What does estate mean>
Taking each question in turn.
What is a dependant?
This can be very wide. But in most fatal accident compensation claims brought by solicitors on behalf of the dependants, are usually the deceased’s “next of kin,” that is, close family such as widow/widower, children of the deceased, grandparents, brother/sister.
“Dependants are fixed at the date of death but a dependant can be a matter of fiction and entitled to claim”
Due to a recent change in the law, under s. 83 of the Civil Partnership Act 2004 a dependant now includes a “Civil Partner” of the Deceased.
In addition to the above, if a partner was living with the Deceased (similar to a husband and wife relationship) for at least 2 years prior to death, the living partner can also become a dependant under the Fatal Accidents Act 1976.
Dependants are fixed at the date of death but a dependant can be a matter of fiction and entitled to claim. Therefore a dependant can be an unborn child at the date of death. It can also be a child that has not yet been born. Thus if there is evidence that the deceased would have intended to start a family then a possible claim can be made on behalf of that “fictitious” child.
What does estate mean?
In lay-person’s terms, the “estate” are the assets and liabilities of the Deceased accrued at death and may continue after death. This can include the value of any house, money in the bank, shares, bonds, investments, life insurance policies less any liabilities that the Deceased owed at the time of death such as bank loans, mortgages etc.
Thus any compensation for a fatal accident claim due to the Deceased will therefore form part of the Deceased’s estate like an asset.
In most claims, the person(s) entitled to the deceased’s estate are usually the dependants, but not always. Therefore a fatal accident claim may give rise to one person being entitled to all the compensation, an obvious example is the widow who can claim as a dependant and also as the person entitled under her late husband’s estate.
What can be claimed, following a fatal accident?
The following is a summary of the compensation that can be claimed following a fatal accident:
- Pain and suffering of the deceased (if any at the time)
- Funeral expenses
- Statutory bereavement award currently £12,980
- Losses incurred between fatal accident and death
- Loss of earnings
- Medical expenses
- Claims for any care provided by dependants
- Travel expenses
- Loss of pension entitlements
- Damage to clothing and property
- All other reasonable losses and expenses.
Some points of note
The court will not award any compensation to the estate if death was instantaneous (technically, there is no pain and suffering). This is difficult to explain to grieving dependants as clearly there must have been some pain and suffering that had caused death.
“The law that deals with fatal accident compensation, clearly gets in the way of justice in our respectful view.”
Similarly if the Deceased was in coma before death there is no claim for pain and suffering. In the tragic case of Hicks (one of the Hillsborough Cases) the medical evidence brought to court was that both girls died of traumatic asphyxia in the crush and would have fallen unconscious within seconds and died within minutes. The claim for compensation was rejected.
It is with regret that the law governing fatal accident compensation claims do not tend to favour dependant claimants and are often harsh. The law that deals with fatal accident compensation, clearly gets in the way of justice in our respectful view.