Category Archives: Mesothelioma

Who Is Entitled?

Who Is Entitled to a Bereavement Award?

Firstly a claim for a bereavement award is in addition to other claims that may be made under the Fatal Accidents Act 1976.

Claimaing a bereavement award under the Fatal Accidents Act 1976

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.

Contact An Expert Today

Unmarried? Can I Claim Bereavement Compensation?

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.’

The full proposals to change the law can be found here Fatal Accident claims and Cohabitees on bereavement compensation claims.

See further our report on the Government Changes to Bereavement Compensation Award

Fatal Accident Claims and Cohabitees

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.

Section 1(3)(b) of the 1976 Act allows cohabitees to make a claim for compensation subject to 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.

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”

In another case Churchill v Roach [2002] EWHC 3230 (Ch), the judge in defining “living in the same household” said that it seems to

“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.

Thus in the case of Kotke v Saffarini [2005] EWCA Civ 221, the judge commented that

“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.

Bereavement Award £15,120 – Updated 2020

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.

However, the law may be set to change after the recent ruling in 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 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.

Checklist of Living Together as a Couple

From what has been read and considered a useful check list to determine if the survivor of a couple were living together as ‘husband and wife’ can be found in the Law Commissions report on defining unmarried couples & Family Life:

Factors to include the following:

(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.

Fight for Dignified Death

Whilst we are experts in fatal accident claims there are moments when the law affect other aspects of our lives. The right to die, has been brought into the court once again when a campaigner who is terminally ill requires the court to determined when he can die with ‘dignity’ rather than being ‘entombed’ by his illness.

The High Court will determine the fate of Noel Conway, 67 years of age, a retired lecturer who is suffering from the debilitating motor neuron disease.

It is reported that he has less than one year to live and Mr Conway would like to control his end of life wishes.  When he has less than 6 months to live and has mental capacity to make the decision, he wishes to bring about a ‘peaceful’ death with professional help from doctors.

No medical professional can intentionally accelerate death otherwise, under the Suicide Act 1961, a doctor (or family member/friend) may face up to 14 years imprisonment.

Fatal Accident Claims

Mr Conway requires a declaration that the Suicide Act is incompatible with the Article 8 of the European Convention of Human Rights which relates to respect for private and family life and Article 14, which protects against discrimination.

However the right to die has to be balanced the possibility of family members putting pressure on the patient to end their life.  It is a difficult case.  The Justice Secretary is opposing the case and the trial continues.

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

 

Fatal Accident At Work – Crush Injuries

A fatal accident at work occurred to an engineer who is said to have been crushed to death as reported in the Irish News.

It is said that the tragedy occurred when the employee was caught up in machinery.  The Health and Safety Executive are to carry out appropriate investigations into the tragic death at work.

Anyone who seek help and advice regarding a fatal accident at work may seek the help and advice from specialist solicitors, who will be able to help with making a fatal accident compensation claim.

The tragedy is compounded by the fact that following a death at work, it is often the ‘bread winner’ that has lost his or her life. The consequences are only too apparent by the fact the death was sudden and unexpected.  Thus there is almost always and immediate loss of income to the family.  The bills, unfortunately do not stop once a death has occurred in the family.

The mortgage, rent, council tax, utility bill,s car bills, finance, loans and more still have to be paid.  Combined with having to find an immediate expense of about £7,000 for the cost of a funeral.

The loss and grieving is hard enough but to then be worried about finances can make the stress un-necessary.  As fatal work accident claims solicitors, we can help take action against the employers if there is a possibility they may be at fault.  All employers by law must have insurance to pay out for such eventualities.

If the death at work compensation claim is met by an admission by the employers insurance company that the fatal accident at work claim was as a result of the employer’s negligence or fault, then the solicitors helping the family can obtain an interim payment to help with the funeral expense within a matter of weeks and deal with the rest of the compensation claim when all the evidence in support of the dependents are obtained.

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.

LIVE CHAT WITH NO WIN NO FEE SOLICITOR?

If you see our LIVE CHAT icon usually at the top for bottom of the website of your browser, please click on the button and you will engaged one of our NO WIN NO FEE SOLICITORS to exchange chat live and help you with any questions.

[contact-form][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Telephone’ type=’text’/][contact-field label=’Accident Details’ type=’textarea’ required=’1’/][/contact-form]

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.

Insult To Widow – Malignant Mesothelioma only £85,000

In a recent case there were arguments about how painful a man suffered from mesothelioma (a disease where there is no cure – contracted by asbestos exposure).

These unsavoury arguments are a further insult to bereaved families to gain some comfort of compensation to the unlawful killing of a loved one.

No amount of compensation for fatal injury can ever be enough.  We all get it but to make widow come to court to explain the pain and suffering and for then Solicitors and Barristers to argue over what such suffering is worth is unjust.  There must be a better way to stop insurance companies arguing over such trivial amounts of compensation when one considers what the deceased has been though and the suffering from the families.

We tend to live in an age where privacy for celebrities are paramount (in some cases justified) and to award such important celebrities they are often ordered six figure sums to compensate them for “hurt feelings.”  Fatal accident solicitors are not saying that such compensation figures are wrong, but the law is unjust when you compare such money awards to claims involving fatal accidents.

Long Suffering Death Worth £85,000 to Widow

The law is an insult to victims and loved ones left behind when it comes to compensating those who need it most to carry on with their life. We all know money will never be enough following the death of a loved one, but the award by the Court which should reflect what is just and mirror our caring society is barbaric.

In this recent case, the Mr Thomas Mosson died, after a prolonged illness, of malignant mesothelioma contracted during the course of his employment.  Anyone who knows about death following exposure to asbestos dust will understand that it is a very painful and progressive death.  In this case the following was said about the disease and how he suffered:

    1. The chemotherapy was particularly unpleasant causing the deceased nausea, vomiting, fatigue, peripheral neuropathy and tinnitus. His condition steadily declined and he died on 19 January 2014. But for this illness it is said that he would have lived for a further 12 years.

    2. Mr Steinberg, for the claimant, puts the effect of this illness in graphic terms in his skeleton argument. He says:

“This was a devastating illness – Mr Mosson suffered terribly – made exceptional by the unusually long period of suffering (i.e. 26 months).”

See full case Mosson v Spousal (London) Ltd

It is hard to believe in this so called “compensation culture” that Mr Thomas’ widow was only awarded £85,000.  She suffered and her family suffered, seeing this once proud man decay and depreciate before her eyes and suffer beyond imagination.  Just £85,000 how on earth is this justified?

Yes no amount of money can ever compensation, we get it, but to offer this amount is an insult and unjust.  But it is happening every day in England and Wales.  Large insurance companies are strong enough to lobby the Government and have deep pockets to defend and challenge fatal accident claims by some of the best Counsel and Magic Circle Solicitors in the business.

Justice is not on a a level playing field, no equality of arms (if there ever was one). The Government had now introduced fixed fees to Claimant’s solicitors and due to the cost cutting exercise, forcing the Claimant Solicitor to take up to 25% of the Compensation awarded to Widows and other members of the family who have lost a loved one.

So to add more insult to injury to the bereaved families, after winning the case, if settled after the cost cutting Conservative Government*, the Claimant solicitors will then have to bill the Widow and for services rendered:-

Here £84,000 – 25% (Solicitors Fees) = £21,250: 

Widow Receives Only £63,750*

*If the case was brought after April 2013 when the Conservative Government attacked Claimant Solicitors Costs and thus were forced to charged injured clients 25% of their compensation.  Please note by instructing R James Hutcheon Solicitors, our charging fees are currently capped at 12.5% not 25%.

 

Fatal Accidents Act 1976

Fatal Accidents Act 1976

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

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.


 

Fatal road accident

What can be claimed under the Fatal Accidents Act 1976?

There are 3 main heads of claim.

•    Bereavement award currently only £12.980.

•    Dependency claims paid to close family members.

•    Funeral expenses if paid by the dependants.

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.

#BrokenHeart
#BrokenHeart

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:

  • Unjust
  • Unfair
  • Outdated

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.

Child dependency fatal accidents

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:

‘…There was a gradual build up of pressure on the bodies of the two girls causing increasing breathlessness, discomfort and pain from which they suffered for some 20 minutes before the final crushing injury which produced unconsciousness. This should have led, he submitted, to the conclusion that they sustained injuries which caused considerable pain and suffering while they were still conscious and which should attract a substantial award of damages…’

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.

shutterstock_306532232

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.

£8,500 Fatal Accident Compensation – 12 Months Suffering

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.

Fatal Accidents Act 1976, a claim may be made by a limited number of relatives for their bereavement suffered due to the death. The award is described in this way in the third edition of Personal Injury Schedules edited by William Latimer-Sayer and Langstaff J:

“A bereavement award is an oddity in the law of damages. The fundamental principle in personal injury claims is that the claimant should be compensated for his or her loss. Therefore a claimant needs to prove the loss, and an attempt to quantify it must be made. However, bereavement awards are subject to no such condition. Once the relative has proved he or she was within the specified class of claimant and that the defendant is liable, then an award is made. There is no need to prove any actual loss suffered by the relatives; the Court assumes certain people will inevitably be adversely affected by the death of a close relative. There is no right to seek to argue for any additional or higher sum in the event of extreme suffering. This may seem an arbitrary approach awarding damages, but the alternative has long been considered to be against public policy…”

Questions - Contact Us

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.

No Win No Fee No Worry Cycle Solicitors