The Legal Authority to Make a Fatal Accident Claim for the death of a Family Member is currently under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.
The Fatal Accidents Act 1976 makes it possible to claim compensation for the death of a family member in respect of a wrongful death. It enable entitles certain people to make a claim for compensation in order to reflect their loss of financial dependency on the deceased. The categories of people in tilted to claim could include spouses, civil partners and children of the deceased. However, the number of Dependants is not fixed it could range further than immediate family; it could also extend to siblings and grandparents.
The Dependants are usually the deceased ‘Next of Kin’ so the fatal accident claims are usually made by the same people. Dependents are able to claim for any loss any dependency including;
Dependency loss – the loss of financial support and services from the deceased which the Dependant was subject to prior to the death of a family member.
For more guidance and information Fatal Accident claims after the death of a family member check out our Fatal Accident Claims Guide.
Bereavement Award
Under the Fatal Accidents Act 1976 a Bereavement Award is a personal injury claim made following the unlawful death of a person to the fault of another. Entitlement for a Bereavement Award is calculated on an individual case-by-case basis. To qualify for a Bereavement Award a claimant has to show they fall within a particular class of persons entitled and highlight how they have suffered or are suffering a loss.
Bereavement damages are most often paid where you may also hear the words ‘unlawful killing’ or where the death has occurred due to a criminal offence such as murder.
The Bereavement award is a one of payment of £12,980 to certain relatives of the deceased which is limited to the wife, husband or civil partner of the deceased. The exception to the strict criteria is where the deceased was a minor, in which case the deceased parents may be entitled to a bereavement award.
The amount of the Bereavement Award has increased over the last decades and historical figures for the Bereavement Award are;
£3,500 to £7,500 – 1 April 1991
£10,000 – 1 April 2002
£11,200 – 1 January 2008
£11,800 – 1 January 2012
£12,980 – 1 April 2013 to present (current rate)
This provision has been widely criticised, particularly in light of ‘the number of cohabiting couple families has increased faster than a married couple and lone-parent families, with an increase of 25.8% over the decade 2008 to 2018’ according to the Office for National Statistics. It is our firm belief that when a couple has cohabited for years and may even have started a family together it seems unjust to deny them the Bereavement Award solely on the basis that they have not entered into a legal marriage. As reported by the BBC the Law Commission previously suggested ‘cohabiting couples should be eligible for bereavement damages’.
For further guidance and information on the Bereavement Award after the Death of a Family Member check out our Bereavement Award – Guide 2020.
Dependency on Children in Fatal Accident Claims
The legal system sparks a grave injustice where children are killed in an accident where it is another’s fault. Most such cased involved fatal road accidents where the child is a passenger in a vehicle.
The law ignores children from a compensation point of view. It is as though they are worthless. A child who is tragically killed in a road accident or other equally tragic event where the death or unlawful killing was the fault of another, the compensation for dependency is usually the following:
Bereavement award.
Return to parents of funeral expenses.
Damage for personal items such as clothing.
Compensation for any pain and suffering prior to death.
Due to the child’s age there is often no financial dependency upon the child by the parents or guardian responsible for looking after him/her and thus the loss of a child is quite often valued at £NOTHING, subject to a bereavement award. It truly is remarkable that this law is still in place today.
Fatal Accident Compensation for Cohabitees
As the Law stands, cohabitees are not able to claim for a Bereavement Award under the 1976 Act. However, as cohabitation is becoming increasingly regular amongst couples in the UK. The law is gradually adapting to accommodate these alterations to the usual household dynamic and provide greater protection for cohabitees; however, there are no immediate legal rights for cohabiting couples.
When a long term partner and cohabitee passes away at the fault of a third party the Fatal Accidents Act 1976 makes it possible for cohabitees to claim for compensation if they fulfil certain criteria;
That they were living with the deceased in the same household immediately before the date of the death.
That they had been living with the deceased in the same household for at least 2 years before that date.
That they were living during the whole of that period as the husband or wife or civil partner of the deceased.
However, a person seeking to make a claim under the Fatal Accidents Act 1976 are not only required to prove that they are living with the deceased but equally the permanence and stability of the relationship with the deceased. Evidence of the stability of a relationship includes things such as shared bills, bank accounts and other household arrangements.
Equally, to the internal nature of the relationship, the external nature will also be relevant; in other words, the nature to which the relationship was presented publically as living together in a long term sustained relationship. Brief periods of absence will not break the continuity of cohabiting if it is found that the deceased and the claimant did cohabit together regularly.
Legal Challenges for Fatal Accident Compensation for Cohabitees
In the case Ms. Jakki Smith, the claimant and the deceased Mr. John Bulloch cohabited as man and wife between March 2000 and his death on 12 October 2011. Mr Bulloch died as a result of medical negligence of the first and second defendants. The defendants admitted the negligence but claimed that Ms Smith was not entitled to the Bereavement Award as the couple never officially married.
Ms. Smith’s legal team argued that in denying cohabitees from claiming the Bereavement Award, the High Court ruling dismissing her claim breached Article 8 and Article 14 of the European Convention of Human Rights. Ms. Smith argued that the legislation discriminated her as an unmarried woman. As Article 8 protects the right to respect for private and family life, home and correspondence and; Article 14 requires that all of the rights and freedoms set out in the Act must be protected and applied without discrimination; the law needs to take into consideration that cohabitation can and does give rise to intimate and long-term relationships which stand to be compensated for the grief experienced when one party dies due to the fault of a third party.
The Court of Appeals issued a section 4(2) declaration of incompatibility under the Human Rights Act 1998 to the effect that section 1A of the Fatal Accidents Act 1976 is not in accordance to the European Convention of Human Rights. This in itself does not change UK law it paved the way for parliament to amend the legislation through a joint committee to review the Fatal Accident Act 1976 with regards to cohabiting couples. On 8 May 2019, the Government laid a proposal draft Remedial Order to remedy the discrimination. However, as it stands cohabitees are not entitled to a Bereavement Award.
Claiming for Compensation For The Death of a Family Member
The law on the rights of cohabitees when one dies in an accident found to be the fault of a third party is gradually coming in line with the dynamic of modern families and the social acceptance of the legitimacy of cohabiting couples. Cohabitees may claim compensation for loss of dependency provided they are able to demonstrate that they lived in the same household as the deceased. Each case is judged with its own specific details but primarily the claimant must demonstrate that they were in an internally and externally stable relationship of sufficient permanence to be eligible. Currently, the Bereavement Award is not available for Cohabitees however, this will change but the time scale for this to be included within the law is undetermined.
Contact us to find out more about your compensation options.
When it comes to claiming a bereavement award, there are a number of different factors which will affect whether your claim is successful or not.
Here is a round-up of some of the most common elements which will determine whether your bereavement award payout is successful or not.
What Affects a Bereavement Award Claim?
To be successfully awarded a bereavement award, a court will have to consider the claimant’s relationship with the deceased. As it stands, an award can only be given to a spouse or civil partner of the deceased or, if the deceased is under the age of 18, their parents. The amount received is currently a total sum of £12,980 regardless of the specific circumstances surrounding the death.
Bereavement awards have continuously been the centre of arguments within the legal sector as many consider the payout and restricted eligibility as a symbolic sum rather than an accurate representation of the emotional and economic loss caused by the victim’s death.
There are various circumstances which make the award in its current state unfair. If the deceased is an illegitimate child under 18, then only the mother would receive a payout. If the deceased is an adult, then the parents would receive nothing. When both parents are eligible for the award, then both would only receive £6,490 no matter their pain, grief or suffering. Even worse, if a parent dies, then a son or daughter would not be eligible for a bereavement award. If a fatal accident occurred when a victim was still a child but they pass when they turn 18, then no award is payable.
There is hope and an ongoing fight to ensure that bereavement awards will eventually open up in the near future, providing people with the payouts they deserve no matter their relationship to the victim or the victim’s age at the time of death.
Our team of expert solicitors have dedicated experience in dealing with fatal accident claims including bereavement awards. Contact us today for free advice to see if you may be able to claim for a bereavement award.
Hundreds of Deaths at Gosport War Memorial Hospital
The public enquiry has led to an out cry by the relatives to call for prosecutions concerning the deaths of elderly patients at the hospital between 1988 – 2000 and no doubt in due course there will be questions following the Gosport Inquiry about compensation claims for the loss of a loved one.
The Gosport Enquiry was led by the former Bishop of Liverpool, the Rt Rev James Jones. It may be recalled that the Bishop has had extensive experience in the Inquiry that led to the tragic deaths of the 96 Liverpool supporters who died at Hillsborough following a football match.
The tragic deaths at Goport, it is reported in The Times, was initially raised by nurses about the over-use of the powerful painkillers at as far back as the early 1990’s. but those concerns were dismissed.
The practice of over-use opioids (pain killers) appears to have continued unabated. The Independent Panel, found that 456 patients had died in hospital due to:
‘..an institutionalised practice of the shortening of lives through administering opioids without medical justification”.
The Gosport Independent Panel investigation, began four years ago in 2014, and considered a voluminous about of documentation. It concluded that:
“there was a disregard for human life and a culture of shortening lives of a large number of patients” at the Hampshire hospital.’
There is also the possibility that up to 200 more patients may also have died but there were gaps in the record keeping that may have provided a more accurate assessment.
The Inquiry was of the view that it was the ‘norm’ that patients were prescribed powerful pain-killers. A clinical assistant at the hospital informed the Inquiry had said that it was the norm “for the practice of prescribing which prevailed on the wards.”
The General Medical Council ruled that Dr Barton, who is at the centre of the Inquiry, was guilty of repeated professional misconduct relating to 12 patients who died at the hospital, but she has never faced criminal charges.
Bishop Jones was of the view that the result of the inquiry was a “vindication” of the families’ “tenacious refusal to be dismissed”. It is reported that his words led to “a collective intake of breath from 150 people”, according to those present.
Gosport Inquiry – The Failure by Those Who Are In Charge to Protect The Vulnerable.
Whilst justice will turn it wheels slowly, it has, it appears it has reached the right result. It is quite right that the families affected ensure that justice prevails. Not only has the Inquiry led to mistakes being uncovered but those who are at the centre of the storm be punished for what they have done.
But in addition, lessons must be learnt about those who are in charge of the institutions that are there to protect the vulnerable. The whistle-blowing that sounded the alarm many years ago where the NHS failed to act is an important point. It is reported that nurses attempted to raise concerns with management but were ignored, owing to a culture at the hospital that meant doctors’ decisions could not be questioned, the report said, adding: “The opportunity was lost, deaths resulted.”
The Times reported that the NHS was reluctant to press ahead with its own inquiries because it feared compromising police work. Coroners inexplicably waited nearly two years to carry out inquests after the CPS had decided not to prosecute.
There were multi-party party failures where the Inquiry must lead to ensure that whilsteblowers are legally protected and full an proper investigations are undertaken.
Patients To Dye Prematurely in Hospital
Patients are likely to be dying prematurely in hospitals today, according to Professor Sir Brian Jarman, director of the Dr Foster Unit at Imperial College London.
Here there is concerns when health safety data, was analysed. There was a desire among officials “not to know” when things went wrong.
He warned that whistleblowers had been “fired, gagged and blacklisted”.
The need for legal protection for whistleblowers is paramount especially in the NHS. At school or at home when you are a child you take a dislike to anyone who ‘snitches’ you by a ‘mate’ or a sibling. But when lives are at stake, when procedures go wrong, how do you complain to those who are ‘above you,’ are senior, more qualified and respected.
That is the dilemma facing not just the NHS but other organisations. However the NHS is in a position where life and death are at stake. The former High Court Judge Dame Janet Smith (I had a multi-party 6 week hearing before her back in 1996) was on BBC 2 Newsnight and expressed the view that her Inquiry into the Shipman Inquiry into the murders appears not to have made any impact on protection and listening to whistleblowers within the NHS.
Will the Gosport Inquiry make a difference? Let’s hope so. There are patients out there now, in the NHS where I am sure, decisions taken by senior medical staff are questionable. Again the actions of the minority taint the majority, but such actions have a devastating impact when they go wrong. Who protects the vulnerable? The last resort surely should not be the lawyers.
Gosport Inquiry Compensation Claims
The last thing in families minds is compensation. As experienced fatal accident solicitors dealing with bereaved families justice and the truth of what happened to their loved one is a priority. But when the investigation has been completed (or during) it is possible to claim compensation for the loss of life, grief and dependency when a loved one passes in an untimely and unjust way caused as a result of the negligence of another. The majority of claims will be brought under The Fatal Accidents Act 1976 .
As solicitors who specialise in fatal accident compensation claims, one other avenue could still be open for families is to make a claim following the Gosport Inquiry. Proceedings may be required in a short period of time due to the fact usually the law only permits claims to be pursued within three years from the date of death. However there is a discretion by the Courts to allow for Gosport Inquiry Compensation claim to be pursued if it was unjust not to do so. One major point in the families favour would be due to the fact that it was only following the result of the Inquiry that they knew the full extent of the harm and possible negligence that resulted in the deaths of their loved ones. They could not have known earlier, for sure and thus a potential civil claim for damages could be made to over come the limitation period.
Asbestos-Related Mesothelioma, Lung Cancer & Asbestosis Claims
Welcome to our 2020 guide for victims of mesothelioma after death and other asbestos-related conditions. We will support those who have lost a loved one following asbestos exposure at work.
Mesothelioma compensation after death often arises when dealing with asbestos-related claims. Death is caused in a form of asbestos-related lung cancer that is related to the inhalation of asbestos fibres, which once diagnosed, will often result in death in just a few months. Usually, an asbestos claim after death is made on behalf of the deceased’s family members by solicitors acting on their behalf through the courts.
How to Claim Mesothelioma Compensation
At R James Hutcheon Solicitors, we have over 30 years experience in dealing with asbestos-related compensation claims and we have produced a video of the 5 most common questions asked about mesothelioma. It is worth a view.
The three main causes of death for an asbestos-related condition due to work in the United Kingdom are:
Mesothelioma
Asbestos-Related Lung Cancer
Asbestosis
The majority of mesothelioma cases affect the lungs. In cases of asbestos-related lung cancer, the fibres from asbestos become lodged in the lung tissue causing irritation and scarring over time. This irritation and scarring can then also develop into tumours. But in the case of malignant mesothelioma, the asbestos fibres scar and lead to tumours in the lining of the lungs (the mesothelium).
Research according to the Health and Safety Government Website concerning asbestos-related deaths there were about 2,500 deaths resulting from asbestos-related mesothelioma in 2015. Such deaths are recorded as the inhalation of asbestos fibres that can cause cancer such as mesothelioma, lung cancer, asbestosis and pleural thickening.
The statistics may however be more complex than that suggested when considering lung cancer, in particular, were exposure to asbestos and smoking collaborate significantly to increase the risk of lung cancer. This then translates into the fact that a lot of cases of lung cancer will result from both smoking and asbestos exposure, rather than by one of these factors.
Compensation for Mesothelioma/Asbestos Compensation Amounts After Death
The courts in the UK consider various factors before deciding on the compensation claim payout for an asbestos-related disease. The following actors are will be considered. It must be remembered that every case will be decided on its own particular facts.
The type of asbestos-related disease – mesothelioma, lung cancer, asbestosis?
The age of the deceased (or living victim). The younger the person the greater the compensation.
The length of suffering – the longer the pain and suffering the court will award more damages. In many studies of workers exposed to asbestos, asbestos-fibre inhalation is currently proven to lead to an increased risk of lung cancer. In general, therefore, longer exposure to asbestos puts an individual at higher risk of developing lung cancer. Most medical cases of asbestos-related lung disease in workers occurs at least after 15 years of first asbestos exposure.
The courts will take in to account the level of smoking the victim had consumed if lung cancer is diagnosed where there has been exposure to asbestos at work.
The average life expectancy for a mesothelioma victim is just 12 -21 months, but some may survive by up to 5 years.
Mesothelioma Compensation for Asbestos-Related Disease
As a general guide, the courts will award the compensation to the worker according to the severity of the disease. The greater the suffering the more compensation will be awarded. Most compensation is awarded to the severe forms of the disease such as mesothelioma, lung cancer and asbestosis. Mesothelioma once diagnosed is a death sentence often within months. Asbestos-related lung cancer and asbestosis often take a longer period before it is fatal. All asbestos claims including fatal compensation claims are handled by only our experienced GRADE A Solicitors with a minimum of 15 years experience in disease and asbestos-related compensation payout claims.
Compensation Payouts for Asbestos Claims After Death in the UK
Mesothelioma – Serious disability leading to premature death: up to £105,000 (Please note that some asbestos-related lung cancers and asbestosis may also be awarded compensation at this level)
Lung Cancer – Usually older person and fatal, symptoms not generally as painful as mesothelioma: up to £86,000
Asbestosis (pleural thickening of the lungs) – Disability, shortness of breath, prolonged coughing, sleep disturbance, restriction of mobility. The top-level award will be for victims where the disease is progressive, showing a significant impact on the quality of life: up to £95,000
Asbestosis and Pleural Thickening – Where breathlessness, frequent use of an inhaler, unable to tolerate smokey environment: up to £35,000
The above figures are for general guidance. In addition to the above asbestos compensation claims payouts there other heads of damages that expert asbestos solicitor can claim on behalf of the victim and their family.
Real Payout Examples by the Courts
Below is a selection of real compensation payouts for asbestos claims after death as decided by UK Courts.
Under the Damages (Scotland) Act 2011 s 4(3)(b) close family members of the deceased can claim compensation. In this case, the father of the five adult children who were making a claim received £35,000 each for the death of their father who died from mesothelioma caused by exposure to asbestos whilst working for a Ship Building Company. The damages awarded reflected the fact that their mother had died of cancer earlier and as a result were all particularly close to their father, who as a very fit man before the disease too over. There is no similar law to compensate victims in England and Wales for bereavement compensation under the Fatal Accidents Act 1976.
Knauer v Ministry of Justice [2014] £642.972.51 (46 years old)
The deceased was only 46 years old when she died of mesothelioma. She was employed as an administrator at a Dorset. The prison included many old buildings to she was required to go in the course of her job. Many of these buildings contained asbestos which resulted in her untimely death.
The general guidance for asbestos-related compensation (see above) at the time the Court was deciding on the amount to be awarded was between £51,500 and £92,500.
In determining the amount, the court reflected on the pain and suffering she had to endure before death. Mesothelioma causing both severe pain and impairment of both function and quality of life. This may be of the pleura (the lung lining) or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. There are a large number of factors which will affect the level of the award within the bracket. These include but are not limited to the duration of pain and suffering, extent and effects of invasive investigations, extent and effects of radical surgery, chemotherapy and radiotherapy, whether the mesothelioma is peritoneal or pleural, the extent to which the tumour has spread to encase the lungs and where other organs become involved causing additional pain and/or breathlessness, the level of the symptoms, domestic circumstances, age, level of activity and previous state of health.”
Asbestos compensation after death awarded was £80,000 (for the injury, pain and suffering only). The full award after death for the asbestos claim was £642,972.51, this award was mainly for the family of the deceased under the Fatal Accidents Act 1976.
Zambarda v Shipbreaking (Queenborough) Ltd. Total Award: £98,723 (75 years)
In this case, a very experienced judge decided in 2013, that the pain and suffering of a male worker due to mesothelioma were valued at £75,500 for the suffering he went through before death. He suffered slightly longer in duration compared to Kauer above, (seven months from first symptoms, six months from diagnosis), but he was a lot older, 70 when he died.
The compensation payment was broken down as follows:
Past care and assistance £4,406
Past case management £3,674
Inability to provide services to others £3,656
Miscellaneous expenses £750
Bereavement damages £11,907
Funeral expenses £3,801
Loss of dependency on Income (past and future) £70,529
Overall total compensation payment: £98,723
Wolff v John Moulds (Kilmarnock) Ltd 2012 – £104,500
In this case, it is reported that the deceased died from mesothelioma aged 67 in 2007. The awards made by the Judge in 2011 under section 1(4) of the 1976 Act were as follows:
£50,000 to the widow;
£15,000 to each of two adult daughters who lived away from home but had regular contact with the deceased;
£18,000 to the youngest daughter aged 32 who lived at home and had relied on the deceased to a much greater extent than her siblings; and
£6,500 to the granddaughter, on the basis that the bond between a grandchild and grandparent was less strong than the bond between child and parent.
McGregor v Genco (FC) Ltd [2014] £135,000
A case decided in the Manchester County Court. The asbestos victim was diagnosed with malignant mesothelioma of the pleura. A claim was brought against her former employer for damages for personal injury, alleging that she had contracted the illness due to asbestos exposure during her the course of employment.
The claimant was aged 58, she developed malignant mesothelioma of the pleura. She began suffering from symptoms of mesothelioma in May 2012 with shortness of breath and lethargy and was diagnosed in August. The prognosis was poor.
The total award for the asbestos compensation after death: £135,000
International Energy Group Ltd v Zurich Insurance plc UK Branch £250,000
A case that involved death due to exposure to asbestos causing mesothelioma where the employee inhaled asbestos fibres in course of employment over many years.
The employee retired in April 2008, but he did not enjoy a long retirement. In the same year, July 2008 he was diagnosed as suffering from mesothelioma and he died within about a year from diagnosis.
Before he died his solicitor took legal action for compensation for his asbestos-related condition. he claimed his illness was caused by its negligence and breach of statutory duty in exposing him to asbestos dust and fibres.
The claim was settled for £250,000 plus solicitors legal costs.
Passmore v Evan Cook Ltd 2012 – (£192,437)
The employee contracted mesothelioma, due to exposure to asbestos at work. He was diagnosed in February 2011 by the presence of a large right pleural effusion and pleural plaques, from exposure to asbestos during his employment. He had a life expectancy of six months, with a likely range of three to nine months, from September 2012.
The employee claimed damages for mesothelioma, which he alleged was caused by negligent exposure to asbestos in the course of his employment by the defendant. Between 1961/1962 and 1981, the claimant was employed and responsible for the supervision of the packing, removal and installation of industrial plant and equipment. In 2011, the claimant was diagnosed with mesothelioma.
The claimant’s evidence was that while employed by the defendant, he had been exposed to asbestos dust from the dismantling of pipework from factory equipment.
At court, his health had deteriorated and towards the end of the one-hour questioning he required morphine as pain control. From time to time he lost concentration. Under cross-examination, some of the claimant’s answers to questions suggested that exposure to asbestos during the relevant period of time could not be demonstrated.
Whilst the defendant submitted to the court that his evidence was unreliable, the Judge dismissed the claims and found in, fact, he was a reliable witness and established to the satisfaction of the court relevant exposure levels and working environment to prove a case. He was truthful and a careful witness and therefore liability was proven against his employers.
Asbestos compensation after death was agreed between the solicitors at £168,000.
Eric Ward, the Widower and Executor of the Estate of Valerie Ward v RWE Npower PLC and Associated Electrical Industries Ltd [2012] £113,000 (80 years old)
The Deceased first experienced symptoms in July 2007 he sadly died in April 2011, shortly after being diagnosed in March 2011. The Deceased contracted mesothelioma as a result of ‘secondary’ exposure. The Deceased washed her husband and son’s overalls, which were covered in asbestos dust and fibres because of their work at the Aberthaw Power Station. Proceedings were issued and the matter settled.
The case was ‘Fast Tracked’ due to her condition under the mesothelioma scheme. Her family were awarded compensation in the sum of £113,000.
Baker v Tate & Lyle PLC [2012] – £205,000
The Employee’s symptoms began in January 2011. At the time of the Trial, he was dying of mesothelioma as a result of exposure to asbestos with a life expectancy of 2 to 6 months. He was 65 years old at the time when at court. He was only in his teenage working years when he was exposed to the deadly dust fibres.
The judge found that under Regulation 1 of the Asbestos Industry Regulations 1931 and section 29 (1) of the Factories Act 1961 imposed a duty upon the Defendant as the occupier. The Defendant company did not come up with any evidence to suggest they supplied their employee with effective breathing apparatus and effective mechanical ventilation, so as not to expose the Claimant to asbestos.
As the Defendant failed to provide this evidence, Judgment was entered and the case settled in the sum of £205,000, with £80,000 allowed for general damages (that is for the asbestos-related condition alone, pain and suffering). The additional about of £125,000 was paid in accordance with the Fatal Accidents Act 1976, for the dependents of the deceased.
Ball v Secretary of State for Energy and Climate Change [2012] £73,980/ £58,920.38 (pain and suffering)
Malignant mesothelioma of the pleura was diagnosed.
The employee was alive when the case came to court. Often quite unusual for a mesothelioma case, as often the victim of asbestos exposure has sadly died.
Between 1967 and 1985 the claimant was exposed to asbestos dust in the course of his employment with the National Coal Board. He started to experience chest symptoms in January 2011. His condition deteriorated and he was diagnosed as suffering from malignant mesothelioma in March 2011.
In September 2011 the claimant’s estimated life expectancy as a result of the malignant mesothelioma was between one to five months.
Facts
In April 2011 a left thoracoscopy was performed to remove the pleural effusion and to relieve the claimant’s breathlessness.
The prognosis was for inevitable deterioration probably with worsening pain, increasing breathlessness, loss of appetite and weight and progressive debility.
It was likely the claimant would become completely incapacitated and in need of constant nursing care towards the end of his life.
Had it not been for the mesothelioma his life expectancy would have been 2.9 years.
Damages for pain suffering and loss of amenity were awarded at £50,000.
Here the Court awarded damages for lost years were agreed at £19,376 and care and miscellaneous expenses were agreed at a further £4,179.16.
A mineral similar to asbestos, as a cause of mesothelioma. Evidence comes almost exclusively from one region in Turkey, where erionite is used as a building material, and mesothelioma rates are extremely high. Because erionite occurs elsewhere in the world (notably parts of the US) without similarly high mesothelioma rates, it has been argued that the situation in Turkey indicates genetic susceptibility to erionite-associated mesothelioma in this population[3], however evidence for this is weak.
Mineral Wool and Silica
Occupational exposure to asbestos and other fibres or particles could modify the carcinogenicity of asbestos with regard to pleural mesothelioma (NCBI)
The most common types of asbestos fibres are:
Chrysotile (white asbestos)
Amosite (brown asbestos)
Crocidolite (blue asbestos)
Compensation for Mesothelioma and Asbestos Claims After Death
Compensation payouts for death following the inhalation of asbestos dust at work is very much after the event symptoms of the disease has a very long latent period, often over 30 years from first being exposed to the deadly dust.
Often, most asbestos victim suffers who seek legal advice are in their 60’s and 70’s. They are concerned for their loved ones as they are usually a carer for their partner who need support.
No amount of compensation will ever replace the tragic loss, but it will provide some financial support, help pay for bills and expenses and even care for loved ones left behind.
There will also be a sense of justice that someone has paid for the hurt, pain and suffering that has been endured before death.
As specialist asbestos claims after death solicitors, we will consider all claims for mesothelioma compensation after death sympathetically and expertly. In fact, all asbestos-related claims will be considered.
Please contact us now to discuss a possible claim but remember there is a limited period to make a claim which is three years from the date of death or within three years from when the worker who was exposed to the dust knew that it was related to his/her workplace.
Asbestos Causing Mesothelioma
Mesothelioma is a rare tumour in persons who have not been exposed to asbestos, occurring with an annual incidence of around one per million population, and most cases occur in persons who have been so exposed. Occasional spontaneous cases unrelated to asbestos exposure do occur, however. When there is a history of past asbestos exposure the balance of probabilities strongly favours that exposure having been responsible for mesothelioma which occurs subsequently.
Mesothelioma can occur after low-level asbestos exposure and there is no threshold dose of asbestos below which there is no risk. However, the risk that mesothelioma will occur increases in proportion to the dose of asbestos received and successive periods of exposure each augment the risk that mesothelioma will occur.
There is, on average, a long latent interval between first exposure to asbestos and the onset of clinical manifestations of mesothelioma, more than 30 years in most series, but the range of intervals is large, extending down to ten years and perhaps less in rare cases, and upwards with no upper limit. The latent interval between first exposure and the onset of clinical manifestations should not be confused with the interval between the commencement of growth of the tumour and the onset of clinical manifestations. The latter period is usually much shorter than the former because the mesothelioma does not start to grow as soon as the first fibres are inhaled but after a period of years during which repeated interactions between asbestos fibres and mesothelial cells occur, eventually resulting in the malignant transformation of a mesothelioma cell. It is at this point that the tumour starts to grow.
Mesothelioma probably begins to grow about 10 years, on average, before clinical manifestations appear. All employments involving asbestos exposure up to the point at which growth of the tumour may be presumed to have commenced, ie about 10 years on average before the onset of clinical manifestations, will have contributed to the risk that mesothelioma would develop. The mechanisms of causation are incompletely understood. Thus all exposure which contributed to the risk that mesothelioma would occur should be regarded as having contributed to the causation of the mesothelioma.
Further Reading for Mesothelioma and Asbestos Claims After Death For Families
We have several more articles on mesothelioma to help you and your family to consider choosing the right solicitor to help you through this difficult time. You must not delay, however, as this could be a bar to making a claim and be in no doubt that despite the hardship and pain you and your family are enduring., the employer’s insurers and legal advisers will take the matter to court to decide if there was a delay in taking court action.
You can see the historical figures for a bereavement award below. Interest can also be claimed in respect of a fatal accident case on the award running from the date of death.
In 2013, this year deserves a brief mention as an increase in the bereavement awarded for deaths following a fatal accident claim on or after the 1st April 2013 has been increased by 10% from £11,800 to £12,980. This was not a as result of the kindness of the Government or Insurance Companies, it was due to the “Jackson Law Reforms” which introduced new cost cutting laws that could be construed to curtail the incorrectly perceived “compensation culture.”
The increase in the bereavement award compensation due to the death of a loved one out of an accident was due the fact that the Jackson reforms made wholesale changes to the fees solicitor can charge the Defendant insurance companies if they win the case. In short, the Jackson reforms took advice from large insurance companies and decided that to compensate solicitors for the drastic cost cutting, they would make the injured victim (or their family) make up some of the shortfall. By this the Conservative Government has now allowed Solicitors to take up to 25% (called a success fee) from the bereaved families. This is totally abhorrent but personal injury solicitors in England and Wales are left with no other choice if they are to offer no win no fee advice.
After a long seven years since the last update, the UK goverment have finally implemented a change to the bereavement award amounts. From 1st May 2020, the bereavement award will provide entitled parties to £15,120. This is the first increase since April 2013 when the award was increased to £12,980.
There are only a limited class of people who can claim for bereavement compensation award in a civil claim set out under the Fatal Accidents Act 1976:
Surviving spouse
Surviving civil partner
Parents (if the child was under 18)
Unmarried couples? (living together as husband and wife/same sex couple for at least two years prior to death – see further below).
Civil Partners Act 2004 introduced a claim for a bereavement award. But what about unmarried couples? The Fatal Accidents Act 1976 Guide we have provided clearly shows that if a couple is unmarried or not in a sanctioned civil partnership, the death of a partner due to a fatal accident were not entitled to claim.
If a partner has died due to a fatal accident caused by another, providing that the surviving partner was:
married to the deceased,
in a civil partnership with the deceased,
A bereavement compensation award can be made. However, if they were not married or in a Civil Partnership at the time of the fatal accident claim, no compensation for a bereavement award is payable under the Fatal Accidents Act 1976. Please note a parent can claim for a bereavement award for a loss of a child providing that the child was under 18 years of age at the time of death. However, this article concentrates on couples who cohabit by choice or otherwise and choose not to marry or be in a Civil Partnership.
In a recent development and very much welcomed, came a challenge through the Courts where an unmarried partner tried to claim for a bereavement award despite the limited class of people who can claim under the 1976 Act.
In this case, Miss Smith had cohabited with her partner for over 10 years when her partner unfortunately died due to a medical accident. She believed the law was unfair and incompatible to other laws such as pursue the bereavement award as well as a declaration of incompatibility under the European Convention of Human Rights with regard to the right for family and private life and protection from discrimination respectively. She had the right to challenge but no compensation was payable. The law has changed and it is likely that unmarried couples may be able to claim for a bereavement award but the Fatal Accidents Act 1976 has not been changed to date but is about to be amended at the time of writing this page, see below.
It is an important attempt and example that illustrates the need for urgent reform; the case can be read in full by clicking here: Smith v Lancashire Teaching Hospitals & Others 2017 – bereavement award challenge by cohabitee/unmarried couple. But a step back in the case of same-sex couples: Stienfeld case.
Change in the Law to Qualify for a Bereavement Award
Following the Court of Appeal case in Smith, the Government is intending to change the law so that unmarried couples can also claim compensation for a bereavement compensation following a fatal accident claim if they were living together for a period of two years prior to death as ‘husband and wife.’
Below is a comprehensive guide on Cohabitation is rapidly growing in popularity amongst couples in the UK. Even though an unmarried couple may be able to bring a claim, they must satisfy the Court that they were ‘living together‘ for a period of two years prior to death.
Bereavement Compensation Award
While the law is gradually adapting to reflect these changes and provide greater protection for cohabitees, as yet there are no automatic legal rights for cohabiting couples. So what happens if you are a cohabitee and your long-term partner passes away in a tragic accident?
Where the accident is found to be the fault of a third party, the Fatal Accidents Act 1976 entitles certain categories of persons to make a claim for compensation to reflect their loss of financial dependency on the deceased. These include spouses, civil partners and children of the deceased.
That they were living with the deceased in the same household immediately before the date of the death
That they had been living with the deceased in the same household for at least 2 years before that date
That they were living during the whole of that period as the husband or wife or civil partner of the deceased.
The Relationship: Living Together, Cohabiting, What Does It Mean?
The fact that people cohabit and live together does not mean that they are a couple who have intended that the relationship was akin to a ‘husband and wife’ situation. There must be some sort of criteria, a formula if you like, that demonstrates to others and the court that they were indeed living or cohabiting together with that intention.
Several factors that can help determine if couples who are not married or in a Civil Partnership and may be useful to satisfy the court that they were cohabitants under the law. Some examples found outside of the Fatal Accidents Act 1976 are below:
The Family Law Act
Section 62(1) of the Family Law Act 1996 defines “cohabitants”, for the purpose of eligibility to apply for occupation and non-molestation orders, as two persons who are neither married to each other nor civil partners of each other but who are living together as husband and wife or as if they were civil partners.
Couples Cohabiting – Adopting Children
Couples are defined as two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.
Common Factors for Living Together to Satisfy a Claim for Bereavement Compensation.
It appears that the common factor, to be summarised in a short sentence can be typically described as ‘an enduring sexual or intimate relationship to the exclusion of all others.’ The most common formula uses the “marriage analogy”, while some more recent legislation has referred to “partners in an enduring family relationship“.
Bereavement Award and The Fatal Accidents Act 1976
The criteria in the provision of the FAA 1976 for couples ‘living together’ as husband and wife can be broken down into their component parts as below:
1. “Household”
The Courts have made clear that the relevant phrase for consideration is “household” and not “house”; thus it is not sufficient to show that a claimant was merely living under the same roof as the deceased.
The case of Gully v Dix [2004] EWCA Civ 139 involved a claimant who sought to make an application for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. While this case was decided under different legislation, the criteria to be established was largely the same; the claimant had to demonstrate that she was living in the same household as the deceased during the whole of the period of two years immediately before the date of his death. In considering this case, the judge commented that:
“they will be in the same household if they are tied by their relationship. The tie of that relationship may be manifest by various elements, not simply their living under the same roof, but the public and private acknowledgement of their mutual society, and the mutual protection and support that binds them together”
“have elements of permanence, to involve a consideration of the frequency and intimacy of contact, to contain an element of mutual support, to require some consideration of the degree of voluntary restraint upon personal freedom which each party undertakes and to involve an element of community of resources”
Thus a person seeking to make a claim for compensation under the Fatal Accidents Act 1976 would need not only to show that they were living with the deceased, but also provide evidence as to the permanence and stability of their relationship.
This may include things such as shared bills and bank accounts, as well as other household arrangements – for example cooking, laundry, reminders of appointments and so on. While some of these factors may simply be indicative of a strong friendship, the combination of all factors must point to a deep-rooted bond and an element of exclusivity.
For example in the case of Swetenham v Walkley & Bryce [2014] WTLR 845, the deceased and the claimant would attend social events as a couple, and the claimant would do the deceased’s washing while the deceased would pay for meals when they went out. They would support each other when ill. Although the defendants argued that they had merely been close and mutually supportive friends, the judge held that the couple had a mutuality of support and understanding to the extent that they would put each other before other friends.
In addition to the internal nature of the relationship, the external nature will also be relevant; in other words, the extent to which the claimant and deceased presented themselves publicly as living together in a sustained relationship. In Pounder v London Underground Ltd [1995] PIQR 217 (referred to in Kortke v Saffarinig [2005] where the claimant girlfriend of the deceased was entitled to claim under the Fatal Accidents Act 1976, the strength of her case was her ability to rely on independent witness evidence giving the strong impression that the witnesses believed the deceased to be living at the claimant’s flat.
2. Separate houses
An important principle to be drawn from the above case of Pounder is that the claimant and deceased were held to be living in the same household despite the fact that the deceased had retained his mother’s address for all official documents.
A similar situation occurred in Lindop v Agus [2009] EWHC 1795 (Ch), decided under the Inheritance (Provision for Family and Dependants) Act 1975, in that the claimant lived as the deceased’s wife in the same household while retaining a different address for official correspondence. The court held that the fact that bank statements and other documents were sent to a different address was not in itself enough to defeat her claim and there was sufficient corroboration from witness evidence to find that they had lived in the same household.
“It is clear from the authorities that in principle a person may be a member of household A, albeit he has a second house or home elsewhere at B to which he departs temporarily from time to time”
In that case, the claimant brought a claim under the Fatal Accidents Act 1976 after her partner was killed in a road traffic accident. In the years prior to the accident, the claimant and the deceased had owned and lived in separate properties in Sheffield and Doncaster, staying together at weekends.
Although the judge considered that the retention of the deceased’s house in Doncaster was not in itself a barrier to establishing the criteria for the claimant’s claim, what did invalidate her claim was the fact that the deceased himself considered himself as resident at his Doncaster address and indicated that he and the claimant had not yet reached the position of treating the Sheffield address as their mutual home.
In fact, the deceased had kept his wardrobe and possessions at his home in Doncaster, and only really began to plan a life with the claimant after she discovered that she was pregnant. However, the legislation requires that the claimant and deceased to have lived together for two years prior the date of the deceased’s death, and the pregnancy was discovered less than two years prior to his death.
These cases demonstrate that the fact that the claimant and deceased had separate houses or addresses will not automatically prevent the claimant from proving that they had lived in the same household as required by the legislation. More important are the intentions of the couple themselves and the nature of the relationship as a whole.
3. Brief Periods of Absence
It follows, then, that brief periods of absence will not break the continuity of “living together”. In the case of Pounder, the judge accepted that the deceased may have returned to his parents’ house for a week or so at a time but he was still able to find that the claimant and deceased had lived together at the claimant’s home. In addition, the judge found that although in the year before the accident in which the deceased was killed the claimant had gone to a woman’s refuge for a period of 3-4 months this did not break the period of living together. Evidence showed that the claimant had returned home regularly and stayed overnight.
In Gully v Dix [2004] EWCA Civ 139, concerning similar provisions under the Inheritance (Provision for Family and Dependants) Act 1975, the claimant had been living separately from the deceased in the three months preceding his death. This separation was in response to an incident in which the deceased had threatened to kill himself. In finding that the claimant and deceased had nevertheless been living in the same household, the court considered that regard was to be had to the “settled state of affairs during the relationship and not the immediate de facto situation prevailing before the deceased’s death”.
Thus in the same vein as the reasoning which underpins the approach taken with separate houses, the mere fact of an absence will not negate the “living together” element of the legislation. The intention of the parties will be more determinative and a court may find that a person was living in the same household as the deceased even if they were living separately at times if it can be demonstrated that there was no settled intention that the relationship was at an end; it was merely suspended.
4. Civil Partners
While the legislation previously referred to the need to demonstrate that the claimant and deceased had been living together “as husband and wife”, growing acceptance of same-sex relationships led to an amendment being made in 2004 to the effect that cohabiting same-sex couples can also bring a claim for compensation under section 1(3)(b).
There are no separate requirements for same-sex cohabitees; the same criteria that must be established by cohabitees advancing their claims as husband and wife apply. Thus a claimant must demonstrate a relationship that goes beyond casual and produce evidence to show that it was sufficiently permanent and constant, both privately and publicly.
So far this article has dealt with the ability to bring a claim for compensation flowing from the claimant’s loss of financial dependency on the deceased. This entitlement is calculated on a case-by-case basis and beyond establishing that they fall within a particular class of persons entitled to bring a claim, the claimant must also show that they have or will have suffered a loss. For example, a claimant may claim compensation where they can show that they have suffered a loss of prospective earnings or pension. The court may also take into account non-material losses, such as the loss of the deceased’s role in family life – these include things such as birthday presents for children or the fact that the deceased regularly carried out DIY or gardening around the house.
However, in addition to this entitlement, the Fatal Accidents Act 1976 also introduced the Bereavement Award, a one-off payment of £15,120 to be paid to certain relatives. Currently this award is limited to the wife or husband or civil partner of the deceased. The only exception is where the deceased was a minor, in which case his or her parents may be entitled to the Bereavement Award.
Therefore, as the law stands, cohabitees are not able to claim compensation for bereavement under the 1976 Act.
This provision has been widely criticised, particularly in light of the fact that more and more young couples are choosing cohabitation rather than the more traditional route of marriage. Where a couple has cohabited for years and may even have started a family together it seems unjust to deny them the Bereavement Award solely on the basis that they have not entered into a formal marriage. The inequity becomes even starker when you consider that a couple who have been married for just several months and have no children will be entitled to the Bereavement Award should one of them die.
In this case, the claimant, Ms Smith, and the deceased, Mr Bulloch, had cohabited for 11 years before his death in October 2011 after he had contracted an infection following a hospital procedure. The NHS Trusts admitted that they were to blame but argued that Ms Smith was not entitled to the Bereavement Award as she and Mr Bulloch had not been married.
Ms Smith argued that in denying cohabitees from claiming the Bereavement Award, the legislation breached her human rights, namely Articles 8 and 14 of the European Convention on Human Rights. Article 8 ECHR protects the right to respect for private and family life while Article 14 ECHR provides protection against discrimination. Ms Smith’s argument was that the legislation discriminated against her as an unmarried woman.
The Court of Appeal noted that the Bereavement Award was intended to reflect the grief that flows from intimacy inherent within couples who were married or in a civil partnership. In that respect there was no distinction between couples in a marriage or civil partnership, and couples who were cohabiting.
Just as the right of civil partners to claim bereavement damages had been added by the Civil Partnership Act 2004 to reflect the growing incidence of same-sex relationships and the need to protect their right under Article 8 ECHR, so too does the law need to reflect the fact that cohabitation can and does give rise to intimate and long-term relationships which stand to be compensated for the grief experienced when one party dies due to the fault of a third party.
The Court in Smith issued a section 4(2) declaration under the Human Rights Act 1998 to the effect that section 1A of the Fatal Accidents Act 1976 is incompatible with the ECHR. While this does not in itself change the law, it paves the way for Parliament to amend the legislation in order to allow cohabitees to be awarded bereavement damages.
(1) the duration of the relationship;
(2) the nature of the relationship;
(3) the degree of mutual commitment to a shared life;
(4) the nature and extent of common residence;
(5) whether the parties maintained a common household;
(6) whether or not the parties had a sexual relationship;
(7) the emotional or physical intimacy of the parties’ relationship;
(8) the extent of financial interdependence or dependence, if any;
(9) the extent to which any financial dependence was encouraged or fostered by the relationship;
(10) the ownership, use and acquisition of property;
(11) the performance of household duties;
(12) whether the parties have or care for children, either of both or one of them;
(13) the reputation and public aspects of the relationship;
(14) oral or written statements or promises made to each other, or representations made jointly to third parties, regarding their relationship;
(15) the extent to which the parties acknowledged responsibilities to each other, for example, by naming the other as eligible to receive benefits under an employee-benefit plan; and
(16) the parties’ participation in a commitment ceremony or registration as a domestic partnership.
Conclusion
The law on the rights of cohabitees when one dies in an accident found to be the fault of a third party is gradually coming in line with modern society and the social acceptance of the legitimacy of cohabiting couples. Cohabitees may claim compensation for loss of dependency provided they are able to demonstrate that they lived in the same household as the deceased. Each case will be judged on its own specific facts but the underlying principle is that claimants must show that they were in a relationship of sufficient intimacy and permanence, taking into account the relationship as a whole and how they conducted themselves both privately for themselves and publicly for the outside world to witness.
As it stands, cohabitees are not entitled to a Bereavement Award; however, this will change in the near future. In response to Smith v Lancashire Teaching Hospitals NHS Foundation Trust, the Government laid a proposed draft Remedial Order before Parliament on the 8th May 2019 designed to extend the right of bereavement damages to cohabiting couples. Just how long before this becomes law remains to be seen but it is certainly a step in the right direction.
In accordance with the Fatal Accidents Act 1976 reasonable funeral expenses can be recovered against the party at fault. Funeral expenses can also be covered on behalf of the estate claim under a fatal accident (Law Reform Miscellaneous Act 1935) but in practice most claims for funeral costs are in accordance with the 1976 Act.
This is because the dependents left behind are the ones who generally pay for the funeral cost and that expense is recoverable back to them. If the expense is paid by the deceased’s estate then it can be recoverable by the estate.
Average Costs of a Funeral
Funerals are not cheap and can put a bereaved family into debt. It is reported that the average costs of a funeral is now in the region of £4,000. Combined with the loss of income or carer which often arises following fatal accident claims means that not only do bereaved families have to cope with the emotional stress of losing a loved one but also the added burden of loss of imcome or care within the family unit.
This can lead to unnecessary stress and burden.
How can we help?
At fatal accident claims, we are experienced in dealing with the recovery of the funeral expenses following a fatal accident in addition to the other claims that can be made which can be substantial especially if the deceased had a young family.
Following the tragic loss of a loved one in fatal accident claim the law provides what bereaved families must undertake to obtain justice and lastly compensation.
However the Fatal Accidents Act is pitiful and outdated. There is not a great deal we can do as specialist solicitors in this area other than apply to law to the best of our ability and achieve the best possible result given the law at it stands.
What is the Fatal Accidents Act?
The Fatal Accidents Act is passes as law by the Government. It is not judge made law. All judges and solicitors do is apply and interpret the law in the given circumstances. The 1976 Act governs all fatal accidents in England and Wales. It does not apply to Scotland who have their own laws which provides greater justice to the bereaved families left behind.
What is a Bereavement Award?
A bereavement award is payable where the deceased was killed following an accident that as caused as a result of another persons actions or omissions. The current award is just £12,980.
The most common fatal accidents claims that solicitors encounter in England and Wales arise out of:
We are asked simply out of curiosity and as part of a tragic loss of life due to a accident. A bereavement award is commonly payable where a close family member loses the life of a loved one. The amount payable is a poultry £12,980. Primarily this is due in the following type of accidents:
There is a limited class of close family members who can claim.
Surviving spouse of the deceased, including now surviving civil partner.
Parents of child, providing child at the time of death is under 18 years.
That is about it. Surprisingly a child cannot claim any bereavement award for the loss of his or her parent(s), guardian or grandparent who may have been the primary carer at the time of the tragic death of the adult. Absolute nonsense and totally unjust.
Fatal Accidents Act 1976
The statutory provision for payment of a bereavement award is found under the Fatal Accidents Act 1976 a rather old an unjust piece of law, made by the Government.
It is for the Government to change the law but under the Conservatives, this looks remote. In fact quite the opposite.
There is nothing so emotive than to lose a loved one due to a criminal act such as murder. The devastation can only be imagined by those not affected. Even, perhaps more hurtful is if the murder is by a family member, husband or wife for instance or the murder of a child.
The unthinkable regrettably does happen but what can the family victims left behind do? This short blog looks at the compensation elements to help family members left behind cope with the financial pressures of losing a relative.
The CICA is set up by the Government to help victims of crime by making a compensation award to certain family members who have been affected by the death of a loved one.
The compensation award is similar in certain respect to a normal claim for fatal accident compensation claims in the civil courts. The CICA have a tariff of compensation awards which includes claims for murder and thus a bereavement award and dependency claim can be make.
Nobody is ever suggesting that a lump sum compensation award for a fatal injury claim on a charge for murder or manslaughter can in anyway replace the loss of a relative. But compensation for a murdered relative may help those family members left behind, particularly if there are young children or the bread winner has lost his or her life due to a crime.
The compensation may help towards child care, education and protect their future. Family members who are struggling to make ends meet will find it easier to cope with the every day life and bills that keep on coming in. The loss of a loved one due to a crime, criminal act does not stop bills.
Affected family members even if they were working at the time, may not be able to come with returning to work for a long period of time or at all. Again this can result in loss of income or if children have to be looked after, the working parent may not be able to return.
Whatever the circumstances, compensation for the murder of a relative due to a crime may be payable even if the perpetrator is known to the victim.
