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.
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.
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.
My Unmarried Partner Dies – But Still Married, Can I Claim?
This can be a heartbreaking situation following a fatal accident claim. Where a couple are not married but are living together there is no automatic right for the surviving partner to bring an action for the unlawful death following a fatal accident. This is governed by the Fatal Accidents Act 1976 which states that if there are co-habities, then the survivor can only claim as a dependant of the loss of their loved one if they were living together as ‘husband and wife’ for a period of 2 years immediately prior to death. The law has subsequently been updated to included same sex co-habities.
The law was challenged under Section 4 of the Human Rights Act 1988 in a case called in a case called Swift v Secretary of State 2013 to overturn the offending section 1(3)(b) of the Fatal Accidents Act 1976 (as amended) as incompatible and thus should be overturned.
Fatal Accidents Act 1976
Under the Fatal Accidents Act, 1976, only 3 groups of people are entitled to make a fatal accident compensation claim following the death of an individual. They are:
dependants of the deceased,
close relatives of the deceased,
Dependency claims are usually ‘financial dependents’ of the deceased under the Fatal Accidents Act 1976, husbands, wives or civil partners, parents or ascendants, children or other descendants and brothers, sisters, aunts and uncles.
But for co-habitees, the law has been strictly applied and the Human Rights Act does not help. In the above case of Ms Swift she had been living with her partner for just 6 months prior to his untimely death where he was fatally injured at work. She was pregnant at the time of death. Despite the fact she was having his child she could not be classed as a dependent of her partner because she did not live with him for a period of 2 years prior to death as ‘husband and wife.’ Her appeal was dismissed and as said before even the Human Right Act would not help her. The same will apply to a Civil Partnership.
What if the Deceased Co-Habitee Was Also Married?
In this was the case, the estranged wife will also be able to claim as a dependent and also claim a bereavement awardas she will come under list of limited people who can claim.
However if the Co-habitee had been living with his or her partner for more than 2 years prior to death as ‘husband and wife’ then the co-habitiee may also claim for a dependency award along side the ‘married partner.’ This is because there can be more than one dependant who can claim at the same time.
So if there are also children to the relationship of the deceased, each child may also be able to claim for a dependency award in addition to the partner(s) of the deceased.
If there is a conflict between dependents as to who can claim for a death following an accident they dependents may require separate legal advice from specialist fatal accident claim solicitors.
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  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  and Aths v Ms  EWCA Civ 972 and criticised in Corbett v Braking HA .
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.
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.
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.
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In Part 1fatal 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]
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 ofKnauer 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.
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.
It may be hard to comprehend but it was not until 1846 that the law recognised that close family members could make a claim if a loved one had died due to the negligence of another person.
That the Fatal Accidents Act 1976, is law passed by the Government that is outdated and unfair to the bereaved families and to the Deceased.
It is hard to comprehend that the value of life in England and Wales can be worth absolutely £NOTHING if killed in a road accident or at work.
It’s time the law is changed to stop the injustice. Please sign our Government online E-Petition to change the law for Bereavement awards and the Fatal Accidents Act 1976 to help innocent victims.
Fatal Accidents Act 1976 & Bereavement Award
The Fatal Accidents Act 1846 was passed and over a period of time there are now two main statutes that govern fatal accident claims.
Under the Fatal Accidents Act 1976, compensation claim is for the benefit of the dependents of the deceased and those who are entitled to a bereavement award. Those limited amount of family members that can claim has been extended to include a Civil Partnership of the deceased. Further the definition of a “wife or husband” has been expanded to include any person (not being a child of the deceased) if that child was treated by the deceased as a child of the family.
What can be claimed under the Fatal Accidents Act 1976?
The Law Reform (Miscellaneous Provisions) Act 1934
Here the law is for the benefit of the Deceased’s estate. That is, what the deceased could have claimed had he or she had not unfortunately died.
Did the Deceased Leave A Will?
The deceased’s “estate” is the value of what the Deceased owned at the time of death including taking into account any debts. As fatal accident solicitors we are often asked who can represent the estate of the deceased? Usually this is the same person(s) under the Fatal Accidents Act 1976. The first thing fatal accident solicitors will ask is whether the deceased left a will, if so, then the person(s) named in the Will have authority to look after the affairs of the deceased, that person(s) is/are called the “Executor” (if male) or “Executrix” (if female). Once this has been established, the fatal accident claim solicitors will then apply to the local Probate Court with the necessary documents including the Will to confirm officially that the person(s) named in the Will have authority to instruct the fatal accident solicitors to pursue the fatal compensation claim.
Deceased Left No Will – Died Intestate
If there is no Will, the deceased is said to have died “intestate” which means there is a strict line of close family members who have authority to claim. Thus, in most cases, if the husband is killed, then the wife will be next entitled; if there is no wife then the children will be next entitled and so on. Once it is established who is entitled to claim on behalf of the deceased, the documents will be lodged at the Probate Court so that the necessary legal documents can be obtained to authorise instruction of the fatal claim solicitors to pursue the action. This person is called the administrator.
It must be remembered that an executor or executrix named in a will has authority to instruct a fatal accident lawyer immediately upon the death of the deceased. However without a Will, the person entitled is called the administrator and has no authority to sue until a grant of administration by the court has been obtained.
What can be claimed under the 1934 Act?
• Compensation for pain, suffering and loss: suffered by the Deceased before death. Thus if the death was instantaneous, surprisingly there is no compensation payable. An insult to bereaved families to think that such a fatal blow to the deceased to kill him or her instantly deserved no compensation at all is frankly a joke in our respectful view. Likewise, if prior to death the deceased was in a “coma” there may be no compensation as the deceased did not experience any “pain or suffering”. Difficult to take in but that is the law for now.
“An insult to bereaved families to think that such a fatal blow to the deceased to kill him or her instantly deserved no compensation at all is frankly a unjust, in our respectful view.”
It is Cheap to Kill
Unfortunately as alluded to above, the Fatal Accident Act 1976 and the 1934 Act (which is law made by the Government not Judges) does not provide for any compensation for the unlawful taking of a life. Thus the life of a child, husband, wife, brother, sister, partner, grandad, ‘nanny’ in England and Wales is ‘worthless.’
How can that be? The Fatal Accidents Act 1976 is:
But if it can be established that before death a loved one suffered from pain and mental anguish, the Courts may award some pitiful compensation for the suffering. Here, the fatal accident claim solicitor will have to discuss with the bereaved family if they want to claim compensation, that a medical expert will be needed to review the hospital records of their loved one to prove the hurt and pain. The greater the suffering the greater compensation. But this is not a discussion by the solicitor and bereaved family that can be taken lightly, it is a very sensitive area.
If child loses a parent(s), no bereavement award is paid, it is not right, not just and cruel
In a Coroner’s Court where experts may be called to confirm the cause of death, the Coroner may leave out the amount of pain and suffering the deceased endured before death so as not to unnecessarily distress the surviving family members. But the family has a right to know if they wish to to make an enqury. Once again to make a claim for compensation under the Fatal Accidents Act 1976 the family have to be forced to hear how their loved one suffered before death. An unnecessary torture for the bereaved family.
Below are some examples of ‘pre-death‘ pain and suffering where fatal accident compensation has been awarded or not as the case may be.
Crushed to Death – Court Valuation £NOTHING
In a disappointing case to say the least, a Hillsborough disaster case called Hicks v Chief Constable of South Yorkshire Police 1992, the trial judge was of the view that because, according to experts, being crushed to death only took a matter of seconds (lost of consciousness followed by dying shortly afterwards) there was no evidence of injury prior to the fatal crushing injury and no pre-death pain and suffering. As a result no award of fatal injury compensation. Indeed, the barrister representing the parents of Sarah and Victoria Hicks had the Claimant’s evidence rejected by the Court. The Judge referred to the barrister’s submission before in the lower court in these terms:
The Highest Court in England and Wales rejected that there could have been this build up of pressure causing increased breathlessness over a period of time. The Judge decided to award nothing.
This is what one top judge said about why no compensation is payable:
Lord Templeman whilst appreciating that the being crushed to death was no doubt terrifying for those that died on that fateful day was persuaded not to order payment of any compensation:
‘…fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of act…’
In layman’s terms, under the 1934 Act and the Fatal Accidents Actc 1976, the fear of impending death and death itself does not give rise to any compensation for the loss of life. The Goverment makes the law and as such there is no power by the Courts in England and Wales make an award. If death is instantaneous or almost instantaneous as in the tragic fatal crushings at Hillsborough, no compensation is payable (that is even if liability or blame could have been established).
In order for there to by any compensation ‘fear alone’ is not enough. The victim has to experience pain and suffering before death. For the bereaved families who will have to hear this evidence, to be worthwhile to claim compensation it probably has to me more than a few days and weeks. This is because the Court’s valuation for the fatal injury (which is unjust in any event) will be further reduced by solicitors costs and court fees. Both the Courts and the Government have ruled recently that such costs must now be deducted from bereaved families and not paid by the insurance company. Where is the Justice? Look at more examples below where compensation for pre-death pain and suffering is not worth much, in our respectful view.
A Parent(s) will receive a bereavement award if a child is unlawfully killed if under 18 years but £NOTHING if the child is over 18 years. Why? It is unjust, does not make any sense. The law needs to be changed. Do it now and sign our Bereavement E-Petition
£3,500 Late Diagnosis of Cancer
Where there is pre-death pain and suffering, the compensation under the Fatal Accidents Act 1976 is an insult. Thus in the case of Kadir v Mistry a case decided in 2014 the NHS failed to spot early stomach cancer in a young woman with four young children. Regrettably she died a few months after diagnosis. Her solicitors in this medical negligence case had to obtain evidence of her ‘mental anguish‘ and torment about how she felt about discovering the misdiagnosis. The award of compensation? A misley £3,500.
Due to cut backs by the Conservative Gonverment in April 2013, today, the bereaved family may lose 25% of the compensation to the fatal injury solicitors. In addition, in a recent case called Mosson v Spousal 2015, the costs of obtaining “Probate” that is the legal work to proved that the family member(s) has authority to act on behalf of the Deceased to claim compensation, will have to further pay out of any award of compensation for the deceased (remember the pain and unimaginable mental anguish before death) the costs of the court fees and probate document. Therefore, the fatal accident solicitor will have to think carefully with the family to decide whether it is worth putting the family though all of this anguish for the paltry sums on offer for the fatal injury compensation by the Courts in England and Wales.
Another insulting example to bereaved families following the loss a loved one following an unlawful killing due to a fatal accident or criminal activity. In the case of Brown v Hamid, decided by the Courts in 2013, where a medical specialist failed to diagnose ‘pulmonary hypertension’ correctly which resulted in the deceased dying 12 months quicker. Life curtained by 12 months worth £8,500. Again take out fatal injury solicitors costs and probate court fees you are not left with much at all.
Losses/expenses as a result of the death payable to the estate. This will include cost of care, medical expenses, aid & appliances used to help care for the deceased between the fatal accident and death.
Funeral expenses (if paid by the Deceased’s estate)
The Fatal Accidents Act 1976
Therefore the main difference between the Fatal Accidents At 1976 and the 1934 Act is the former applies for the benefit of the close family members ‘dependants’ that does not form part of the deceased estate. Thus under the Fatal Accidents Act 1976, only the dependents can claim for the bereavement award and dependency. But under the Fatal Accidents Act 1976 Act and the 1934 Act, both have provision to recover funeral expenses. If there is a duplication of recoverability, only one claim can be made however.
The Fatal Accidents Act 1976 has been described as an ‘oddity’ and the fatal injury solicitor refer to a quote below that has been recently reported in the case of Mosson v Spousal at paragraph 76 of the Judgement.
Please contact us if you have any questions either if you are a dependant, close family member or even a friend who is worried about the bereaved family and want to help. We will always be here to help you under our No Win, No Fee, Solicitorr Service.
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