Category Archives: Compensation Links

Compensation For The Death of a Family Member

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;

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 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 2019.

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:

  1. Beareavement award.
  2. Return to parents of funeral expenses.
  3. Damage for personal items such as clothing.
  4. 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 awant.  It truely 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, 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

The Law on Fatal Accident Claims after the death as the result of a third party may be set to change in relation to cohabitees after a recent ruling in the Smith v (1) Lancashire Teaching Hospitals NHS Foundation Trust (2) Lancashire Care NHS Foundation Trust and (3) The Secretary of State for Justice [2017] EWCA Civ 1916.

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.

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 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.

More Compensation for Fatal Accident Claims

In a shock move by the Lord Chancellor it was recently announced that the ‘discount rate’ that is applied to serious and fatal accident claims is to be decreased from 2.5% to 0.75%. The end result is that for further awards of compensation (that is money that is used to compensation victims for fatal accidents and serious non-fatal accidents) for a term in the future or a life time award will obtain more money.

 

Insurers argue the increase in compensation award for serious injuries and fatalities will cost the industry £6 Billion.

Fatal Accidents Claims - The Law

How the Discount Rate Works to Calculate Future Awards

In simple terms, when an award for compensation is made, it is designed to put the injured victim (or in a fatality) the victim’s estate and dependents back into the same financial position as they would have been had the accident not taken place.  No more and no less.

Where, for instance in a life changing injuries or serious injuries case the employee can no longer work, it would mean that the injured victim would lose out on his/her wages for years to come up to the usual retirement age.  See how this is calculated below:

Fatal accident claims compensation example:

To take a simple example, a man sustained serious non-fatal accident claims: say he was earning £20,000 net per year in wages and had 10  years working life left but the accident has put a stop to him ever working again.

What the court will do is not say that he would the worker will be entitled to 10 years x £20,000 and provide a lump sum award for his future of £200,000.  The court and the non-fatal accident claim solicitors will have to ‘discount’ the £200,000 to reflect that if the worker was to receive compensation he would have had to work 10  years, but he is getting it immediately.

Thus if the worker invested £200,000 today, over a period of 10 years it is likely that £200,000 would be worth more due to interest and investment returns.  Remember the worker cannot be ‘over -compensated.’  So a discount is applied depending on the age and how long the future award will last which has been applied by the courts for many years at 2.5%.  So rather than received £200,000, the worker may only get say £185,000, a discount of £15,000.

But the assumption made by the court were back in the day where the UK Banks and investments had much better returned than they do today.  This means the since the financial crash in in 2007 in particular the discount applied to future lump sum awards in non-fatal accident claims and fatal injuries where too much and therefore under-compensating the victim.

The new suggested discount rate has been reduced to reflect the reduced returns on investments and interest rates to as to re-balance the compensation award for victims of fatal accident claims.

 

Fraud to Justify Large Motor Insurance Premiums

Motorists once again are taken for ‘fools’ in the belief that the motor insurance companies are going to pass down the money saved by the so called ‘compensation culture’ in road traffic accident claims.

For many years the legal industry has been lobbying the Conservative Government in particular with the result that solicitors dealing with whiplash injury claims, personal injury and fatal accident compensation claims have had the costs for dealing with victims slashed to unprecedented levels.

But have the insurance companies passed on these significant savings to the motorists?  It is doubtful.  I personally have not seen my premiums come down at all.

Abolish Whiplash Injury Compensation and Access to Justice

The Government influenced by the motor insurance injury are now proposing next year to deny victims of road traffic accidents the right to any compensation and restrict access to justice by making it no longer financially viable to instruct a personal injury solicitor all in the need to ‘crack down on fraud’ in motor accident claims.

However the evidence does not stack up.  It appears that a leading motorist solicitor Tom Jones is reported in The Times by saying that the costs of claims fell last year and was 30% lower than in 2010.

The motor industry is booming with healthy profits and cash reserves.

What About Fatal Road Accident Compensation?

If the savage Conservative cuts goes ahead as planned, claims involving death in road traffic accidents will not be affected.  However, says our Principal Solicitor, Ronnie Hutcheon.

“The English legal system with there is an unlawful killing at work or on our roads is so unjust to the victim and the family members left behind.  Harshly put, it is cheaper to kill than to injury.  The Fatal Accidents Act 1976 needs a drastic overhaull to compensate fairly the bereaved families.  Insurance companies are getting away with compensation murder.

 

Fatal Car Accidents and Family Members

Losing a loved one in a fatal motor accident claim is heart-breaking enough but can you imagine the hurt when the fatal motor accident could be down to a family member or friend?

Dad/Mother/Uncle Driving The Car

The most common example is where parent or other family member is driving a car and a fatal road accident collision occurs. If the parent or family member who is driving the car was at fully at fault in particular, it would mean that in order for the deceased family passenger to claim fatal accident compensation it will have to be directed the driver.

Thus in family situations the deceased passenger in the vehicle will have to claim fatal accident compensation against the driver thus:

  • Deceased spouse v Driving Spouce at fault
  • Deceased child v Driving Parent. Uncle, Aunt etc at fault
  • Deceased Parent v Driving Adult Child 17 years plus

The close family connection makes the fatal car accident claim even more difficult (emotionally) as one would expect.  However one has to deal with the case in hand and nothing can be changed.  Nobody can turn back the clock.

Who Pays The Fatal Car Accident Compensation?

Whilst it is in name only that a claim is to be made it must be remembered that the compensation  for a fatal motor accident is paid by the insurance company.  If there is no insurance company there is a scheme available that will compensate the estate of the deceased and the dependents of the deceased if any.

Legal Support and Advice

As fatal accident solicitor we will help you every step of the way to assist you and hold your hand through the most difficult time in your life and your family members.  The legal implications to make a claim can be far-reaching and complex so please contact us for the advice that you need.

 

 

 

Not All Accident Solicitors Are the Same

Not All Accident Solicitors Are the Same

Not all fatal accident solicitors are the same.  It this most difficult time for family members who are looking for legal advice in such an emotional and traumatic time, it is important that you do obtain advice from as specialist in this area.

Fatal accident claims can involve a very complex area of the law where there are pitfalls for the unweary and inexperience solicitor who may be very good dealing with simple whiplash injury road traffic accident claims or accidents at work but not equipped with fatal injury compensation claims.  Applying the law to fatal accident claims is not routine, the demands and complexity are uniquely demanding and simply nothing short of experience and expertise should be considered in such a difficult time for the family.

Fatal Acciident Compensation Law

One Example of an Inexperienced Solicitor Getting It Wrong

In this matter, a firm of fatal accident solicitors  acted for a family whose adult child was tragically killed in a road traffic accident.  The deceased was living away from his parents and recently left university and was in a full-time job.

The fatal accident solicitors instructed by the family pursued the claim against the other driver that killed the adult child.  The police via the Crown Prosecution Service  (CPS) successfully pursue the charges of causing death by dangerous driving.

Following the conviction the family as requested by the fatal accident claim solicitors requests that they send the receipts in of the funeral expenses to stat they can be reimbursed with the cost of the funeral and headstone which is a claim that can be made under the Fatal Accidents Act 1976.

The fatal accident solicitor only made a cursory enquiry asking simply did their adult child provide an financial support for them at the time of death.  The answer was ‘no.’

The insurance company for the other driver made an offer to compensate the family for the funeral expenses in ‘full and final settlement’ of the fatal accident claim.  That was it.  The family became a little concerned and questioned their rights.  After seeking advice from us, it quickly became apparent that the fatal accident solicitor simply did not go into any detail about what a ‘dependency claim’ involves and what can be claimed.

Fatal Accident Dependency Claim

It turns out that the parents and the deceased had in mind shortly before the tragic death that their adult child was intending to come back to live with the parents due to job relocation and more-over to look after one of them as they had fallen ill.  That the provision of care to one parent and that the adult child would financially support his family was simply over-looked by the fatal accident solicitor.  No proper and full investigations were ever made.

Had it not been for that telephone call to us, the fatal accident solicitors the family would have settled the claim for compensation for the loss of funeral expenses.  The total value of the Dependency claim is significant and whilst no amount of fatal accident compensation can ever be considered as justice, it does provide some financial security, closure and piece of mind.

Fatal Accident Solicitors – Advice & Support

We are here to help you every step of the way.  The first legal step is to call us.  We will be sympathetic and with over 20 years of dealing with families left devastated by the loss of a loved one appreciate your concerns and demands for justice.  We work under a No Win, No Fee Solicitor service so you have no worries in getting in touch.

Make sure you instruct the right fatal accident solicitor,  otherwise you may  not obtain  the justice that you deserve and the right amount of compensation of piece of mind  and  a sense of closure.  The above link is a cautionary tale of what can easily go wrong if the family instruct the wrong fatal accident solicitor.

Fatal Car Injury - Contact Us

 

Knowledge of Loss of Life = £0

The Courts are ‘chipping away’ at the injustice of compensation awards following a fatal accident claim where a person or shall we put it in a more personal way, your Spouse, Partner, Child, Mother, Father, Brother or Sister is unlawfully killed at work or in a road traffic accident for instance.

The case of Kaidir v Mistry decided in 2014 by the Court of Appeal, the second senior court in England and Wales, no less.  In this tragic case a the Claimant’s case was founded on the negligent late diagnosis of stomach cancer.  She was only 32 years of age with 4 young children.  The cancer was terminal and even if spotted in time, it would not have prevented her from dying.

Fatal accident claims - sitting on hill

Spotted Cancer In Time – She Would Have Lived for About 2 Years Longer

The evidence in the case was that had the correct treatment been underway at the right time, she would have underwent extensive intrusive treatment, in other words pain and suffering.

Therefore the fatal accident claim solicitors in this case tried to claim compensation for her and her family for her suffering due to the late diagnosis.  However the Defendant insurance company solicitors argued successfully that she would have experienced pain and suffering in any event due to her terminal cancer.

The Court of Appeal agreed with the Defendant Insurance legal advisers.  It will take into account any pain and suffering she was would have suffered without the Defendant’s negligence. The pain and suffering was no different in a fatal accident claim than where a person sustained injury that is not life-threatening, the Judges rejecting a “conceptually different’ argument put forward by the deceased Claimant solicitors.

So What Can Be Claimed – Life is Worth £Nothing In England & Wales?

Well here, Court of Appeal has stated that the Government has prevented any compensation to the unlawful killing to the deceased if the deceased did not die immediately but at a later time, say weeks or months later.

Here if the deceased was aware that the fatal injury would curtain his or her life, not matter how upset that may be, NO FATAL INJURY COMPENSATION is payable thanks to Government Law found under the Administration of Justice Act 1982 (the 1982 Act)

‘THE LAW IS UNJUST, UNFAIR

AND MUST BE CHANGED.

The Act does have an exemption as referred to by Lord Justice Laws, where he said:-

“if the injured person’s expectation of life has been reduced by the injuries, the court, in assessing damages in respect of pain and suffering caused by the injuries, shall take account of any suffering caused or likely to be caused to him by awareness that his expectation of life has been so reduced.”

In this case the Court, as the fatal accident solicitors have said earlier in this Article, the Court’s are ‘chipping away’ at a unfair legal precedent that stops bereaved families being compensated fairly.  Here the Judge advised that the claimant did suffer by her awareness that her life was cut horribly short.  She had four young children.  The Defendant insurance company tried to stop an award but they lost.

The Judge found that for her ‘mental anguish’ of knowing her life was cut short in her prime at the age of only 32 years and with 4 young children awarded what is considered an nominal amount but a step forward.  The Courts awarded the grand sum of £3,500.  Yes just:

“THREE THOUSAND FIVE HUNDRED POUNDS”

Such a petty amount anyone who is aware their life will be cut short by some 40 years or more.  Compare this to Celebrities who have been awarded six figure sums for ‘hurt feelings.’  It is unjust.  Please help change the law so that a bereavement award can compensation families who have lost a loved one.

The Fatal Accidents Act 1976 does not help and neither does the The Law Reform (Miscellaneous Provisions) Act 1934

Contact the Fatal Accident Claims Solicitors

Please if your family or you know someone who needs advice or assistance please contact the fatal accident compensation solicitors for specialist advise and help under our no win no fee solicitors service.

 

Why Did The Courts Got It Wrong Over Many Years? (Part 3)

Why Did The Courts Got It Wrong Over Many Years?

The Ogden Tables were used to compensate future awards of compensation for fatal accident dependents and victims of life changing injuries.  The Ogden Tables use what are called ‘multipliers’ that is a calculation to apply a fixed lump sum award the claimant would received today and ‘discount’ the compensation lump sum due to the fact that the claimant would get the money now rather than piece meal over what can be many years into the future.

In fatal accident claims, however, the Courts in the 1970’s (see case of Cookson v Knowles [1979] in particular where Lord Fraser stated:

‘In a personal injury case, if the injured person has survived until the date of trial, that is a known fact…But in a fatal accident case, the multiplier must be selected once and for all as at the date of death because everything that might have happened to the deceased after that date remains uncertain…’

Thus to calculate the future compensation for dependants from the date of death rather than the date of trial (which happens as a matter of routine in life changing injury claims) has the effect of under-compensating the dependants of the deceased.  Why?  This is because the Odgen Tables used to calculate the future awards were designed to calculate the ‘multiplier’ from the date of trial not the date of death.

So if there is a long delay between the date of death and date of trial or settlement this will lead to injustice and under-compensation to the dependents.  This has been a known fact for many years but the Courts have done nothing about it until the decision in Knauer v MOJ 2016.  The mis-use by the Courts of the Ogden Tables was considered in White v ESAB Group (UK) Ltd [2012] and Aths v Ms [2002] EWCA Civ 972 and criticised in Corbett v Braking HA [1991].

Just one good fatal accident decision in many years has taken place where the Supreme Court in the case of Knauer v MOJ 2016 decided to change the law so that the multiplier must run from the date of trial, not the date of death.  This can add thousands of pounds for bereaved families who have been under-compensated and let down the the Government and the Judiciary.

[Author Ronnie Hutcheon – Principal Solicitor in the Firm of R James Hutcheon Solicitors]

But the Courts thought they were bound by the past judgement and thus the law could not be changed without the Government changing the law.

Even the Law Commission Report entitled Claims for Wrongful Death suggested to the Government that the law should be changed (among other issues) so that compensation for fatal accident claims for future awards should be used the same way as lift changing injury claim, that is The Ogden Tables for future awards for compensation should be from the date of trial not the date of death.

Fatal Injury Law Commission Report – [Click to View]

Common sense has played a part here with practical know how of the change in times but lest not forget the injustice to victims in the past whose fatal accident claims have been vastly under compensated by the slow changing pace of the Judiciary and the constant strength and lobbing of Government by insurance companies who  continue to influence the Government.  The losers are the victims.  Help us change the law and sign our Government E-Petition on bereavement awards.

Further reading

Fatal Accident Compensation – Calculate Future Awards (Part 1)

Fatal Accident Compensation – Calculate Future Awards (Part 2)

Fatal Accident Compensation – Calculate Future Awards (Part 3)

There are time limits that apply to make a fatal accident claim so please do not leave it late. If you are reading this website to help a family member or friend who has not yet obtain advice you can contact us to discuss options.  Whatever the circumstances, contact us.

Click on our CONTACT US to call or email us via our Online Form.

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Fatal Accident Compensation – Calculate Future Awards (Part 2)

In Part 1 fatal accident solicitors considered the general complex issues of how calculating future awards for lump sum compensation for a fatal accident or fatal disease can be complex.  Needless to say, once again, as fatal accident solicitors specialising in this area in addition to serious life changing injury claims, the future calculation for compensation leaves the victims, in our view under compensated.

Why?  It is all down to how the large discount is applied to future lump sum compensation awards for a fatal accident or serious life changing injuries.  The discount applied applies on the award of the compensation so as not to ‘over compensate’ the dependents or victim of a life changing injury claim.  Thus to use an similar example, if the dependents or personal injury victim sustaining serious injury claim is valued at say £100,000 over a period of 10 years, if that amount was put into stocks and shares over a period of 10 years, there is a chance that the investment will grow over time and thus the net value would be more than the £100,000.  This is unfair and has been attacked as the returns may not be significant or at all as there is a chance there could be heavy losses.

‘Victims and families whose loved one have been killed in a fatal accident or sustained a serious life changing injury have been under compensated for years…’ 

[Author Ronnie Hutcheon, Principal Solicitor of R James Hutcheon Solicitors]

Fatal Injury Bereavement Award

Thus the dependents compensation for a fatal accident or the victim of a serious life changing injury claim are being under-compensated and have been over many years.  Further the Conservative Government has also since April 2013 not only reduced solicitor costs if they win a compensation claim for fatal accident or injury but now solicitors are forced to take up to 25% of the victim’s compensation award.  Thus to say that the aim of compensation is to put the claimant victim in the same financial position but for the death or accident is a misnomer.

Uee of the Ogden Table To Compensate Fatal Accident Claimants

The Ogden Tables are used by fatal accident solicitor and personal injury solicitor who specialise in life changing injuries where the future awards of compensation have to be considered.  Here we will discuss only fatal accident compensation claims due to the recent important case of Knauer v MOJ by the Supreme Court in 2016 increased compenstion following the unalwful killing of a person in an accident by just using the Ogden Tables in the way they were intended.  Had the Courts used the Tables correctly it would have stopped thousands of bereaved families whose fatal accident compensation claims were settled by their Solicitor or the Courts over many years.

How Solicitors Calculate Future Compensation After Death (Part 1)

Generally it is relatively easy to calculate the compensation awards to dependants of the deceased prior to trial or settlement of the claim.  This is because what has happened in the past can be evaluated with precision.  There is no assumptions or what ifs?

Some complex calculations for fatal accident compensation which arise when the claims comes to be settled can give rise to uncertainty.

Some examples where uncertainly will arise and difficult questions have to be determined by the Courts and the solicitors acting in the compensation claim for a fatal accident:

  • The deceased had recently started his own business (so there is no past record on how well the business would have done).
  • The deceased was only 16 years old so there is little work experience or examination results to establish a clear future career path.
  • The deceased was destined to be a sporting great…but for the fatal accident.

There are many other examples where a future calculation for possible fatal accident compensation awards can give rise to difficult assessments and calculations.  The fatal accident compensation solicitor will have to consider all the evidence and present the best possible case to the Courts.  Once this evidence has been produced the Solicitors dealing with the fatal injury claim will then use what is called ‘The Ogden Tables‘ to consider the future calculation of compensation awarded.

Calculation of Future Fatal Accident Compensation – Ogden Tables

The Ogden Tables are designed not by solicitors as such but by accountants or actuaries who use various data such as age, discounts rates, life tables etc to establish how much a lump sum compensation award for a fatal accident would be worth if the dependent a received all the money ‘today’ at once rather than over a period of years had the deceased lived.  This is important as the dependants of the deceased should not be ‘over-compensated’ and importantly ‘under-compensated.’

So if, say, the dependants of the deceased had a future award of compensation for a fatal accident of a loved one assessed at £100,000 and that amount is the equivalent of say 10 years future award.  If the dependant received £100,000 today rather than over a period of 10 years, the law of compensation (the Defendant insurance company) would be up in arms as the dependants would have been over-compensated.  Why?  Fatal accident solicitors call this ‘accelerated payment’ the dependants have received all the money in advance in one lump sum rather than over the 10 year period.  Therefore that £100,000 could be invested in stock and shares or put in a bank account gaining interest and any investment returns would result in an additional award to the dependants which is prohibited i.e. the dependants have been over-compensated.

Therefore what the courts will do is apply a discount to the compensation so that the dependants are not over-compensated.  Therefore rather than receive £100,000 today, the compensation will be reduced by a complex calculation so that the award may be £95,000 or £90,000 and so on.  The longer the award in years terms into the future, the greater the compensation discount.

The actual scheme and philosophy of making dependants of the deceased who receive compensation for a fatal accident claim has been under attack by many fatal accident solicitors and personal injury practitioners well before the stock-market crash of 2007.  This is because the dependants or the injured victim is forced to invest the compensation in stock and shares or if the dependants or injured victim are more risk adverse, to keep the compensation in a bank account.

However, as all savers are aware, the interest on bank accounts are quite pitiful and in some cases we here are of negative benefit. The compensation award is there for a purpose and should not be put at risk in stocks and shares. Further the discount applied to the future awards are still very high meaning that in real terms the compensation for fatal accident claims and personal injury claims are consistently over many years under valued.  The fault of the to Government once again slow to react help victims but quick to protect insurance companies.

See Also:

Fatal Accident Compensation – Calculate Future Awards (Part 1)

Fatal Accident Compensation – Calculate Future Awards (Part 2)

Fatal Accident Compensation – Calculate Future Awards (Part 3)

Fatal Injury & Funeral Expenses

In this fatal injury claim, (under The Fatal Accidents Act 1976) where funeral expenses (amongst other losses) were considered following the death at work due to exposure to asbestos dust, the employee unfortunately contracting the disease ‘malignant mesothelioma.’

The High Court in London in the case of Mosson considered the arguments by both the claimant and defendant solicitors on what funeral expenses can be recovered following a fatal injury and in this case a death caused at work.

Fatal Accidents Claims - The Law

Cost of Probate

Probate is the legal procedure required to prove who is the person(s) responsible for formally dealing with the affairs of the deceased.  Usually, in practice this is the deceased next of kin, i.e. wife, husband, parter, etc.  If the deceased leaves a will, the person responsible will be named in the will, again this is usually the next of kin.  If no will has been made, the rules of ‘intestacy’ apply, and again it is the ‘next of kin.’

When the person responsible for the deceased affairs has been established the fatal injury solicitor will then send the relevant forms to the Probate Court to obtain the official court approval for that responsible person to instruct the fatal accident solicitors and deal with all the financial affairs of the deceased including make a claim.   There will be a cost involved in obtaining probate and a court fee – called Probate fees.

In the Mosson case probate fees where considered and argued by solicitors in court to establish if the Widow can recover these costs against the insurance company or if she out of her late husband’s estate had to pay them.  Now most people will say it is only fair that the company that killed her husband at work should pay these costs but insurance companies don’t want to pay out any compensation if they can get away with it, notwithstanding the tragic death and suffering all the family had to ensure.

Here the Judge in the case said that the probate fees are NOT RECOVERABLE because no such provision was catered for in the 1934 Law Reform (Miscellaneous Provisions) Act that concerned items that can be recovered following a fatal accident.

Funeral Clothing, Wake & Memorial Bench

Here following an earlier decision in the cases of Knauer v Ministry of Justice [2014] EWHC 2553 (QB) and Gammell v Wilson [1982] AC 27.  The Court’s decision are on the basis that all funeral expenses had to be ‘reasonable in all the circumstances’ and thus not ‘reasonable’ to purchase a memorial bench or for one off clothing for a funeral.  The latter in particular followed the case of Gammell.  The latter Court case distinguished between funeral clothing purchases and a ‘grave marker’ which we all know it to be a “headstone’ which a reasonable expense under the ‘funeral expenses’ head of claim providing the cost, again meets the reasonable test.

Loss of ‘Love and Affection’ Intangible Services

Over quite recent times in fatal injury claims, solicitors have been arguing that whilst the family can be compensated for the loss of DIY and gardening services that the deceased may have provided to the family and now have to rely upon outside contractors, there is also quite a nominal loss for the inconvenience of the family now having to instruct outside contractors to do the work.

The family will have to make arrangements and work around the contractor whereas if the say, husband or wife provided such services they can undertake the work at their own pace and convenience.

The law calls this head of loss under (not a funeral expense but I have put this here for completeness due to the importance of this claim) ‘loss of intangible benefits.”  The judge had considered this loss and in other cases, a sum of £3,000 was make.

However the judge in this case considered that no such compensation could be paid as this was covered under the ‘bereavement damages award.’

This is once again another ‘hard case’ against bereaved families.  As fatal accident solicitor we wish to change the law on bereavement awards and for more information please see our webpage, bereavement awards – change the law.

Need Advice on Fatal Injury Compensation Claims?

Please contact the fatal injury compensation solicitor for expert advice and assistance in this difficult time for the family left behind.  As can be seen from this short blog, insurance companies will argue over the smallest of items that can be claimed so you need a fatal injury solicitor to help you every step of the way from the compensation and expenses to all the legal requirement.