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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.

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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 £12,980

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 £12,980 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.

Fatal Accidents Act 1976 – What Now?

Fatal Accidents Act 1976 – What Now?

The law under the Fatal Accidents Act 1976 is outdated and should be amended to reflect society as it stands today not in mid 1970’s.

The law under the Fatal Accidents Act 1976 needs updating as the family units have changed since the law came into force.

Death By Dangerous Driving: Fatal road accident

The Family Unit is Different Today

The law that was passed in the 1970’s dealt with a time where the family unit typically was white, husband and wife with 2.2 children.

The husband would be the ‘bread winner’ and thus go to work and provide for the family.  The wife would stay at home and become the house wife.  She will look after the children and the home.  Cook all the meals and generally clean the house.  The children would leave the home at an early age and go to work.  Not as many would go to university, that was for the privileged few.

The children will then repeat what their parents had done and the cycle is complete.

Family Unit Today

The family unit today is more multi-cultural, diverse, same-sex marriages, increase in divorces and more step-children etc.  Further women are more independent and are ‘bread winners’ in their own right.

The problem is that when a loved one is lost in a tragic accident the law can create unjust consequences. For more information in the unjust application of the Fatal Accidents Act 1976 click on the webpage.

Fatal Accidents Act – Bereavement Award

Following the tragic loss of a loved one in fatal accident claim the law provides what bereaved families must undertake to obtain justice and lastly compensation.

However the Fatal Accidents Act is pitiful and outdated.  There is not a great deal we can do as specialist solicitors in this area other than apply to law to the best of our ability and achieve the best possible result given the law at it stands.

What is the Fatal Accidents Act?

The Fatal Accidents Act is passes as law by the Government.  It is not judge made law.  All judges and solicitors do is apply and interpret the law in the given circumstances.  The 1976 Act governs all fatal accidents in England and Wales.  It does not apply to Scotland who have their own laws which provides greater justice to the bereaved families left behind.

What is a Bereavement Award?

A bereavement award is payable where the deceased was killed following an accident that as caused as a result of another persons actions or omissions.  The current award is just £12,980.

The most common fatal accidents claims that solicitors encounter in England and Wales arise out of:

Fatal car accidents – death by dangerous driving

Fatal car accidents – death by careless driving

Fatal cycle accidents  death by dangerous driving

Fata motorbike accidents  death by careless driving

Fatal accidents at work

Fatal Accidents Act – Value of Life

In this blog by the fatal accident solicitors we come to mention the unjust award of compensation in England & Wales when a person loses his or her life following a fatal accident.

Most fatal injury claim arise due to motor accidents for fatal injury at work claims.

In some detail we have discussed the inadequacies of the Fatal Accident Act 1976 to compensation close family members who lose a loved on following an untimely death to the negligence of another or due to an act of violence.

Value of Life?

The value of life ranges from what most members of the public consider a human being is worth, that is ‘priceless’ and from the law’s point of view ‘value-less.’

The compensation for a loss of life in a fatal accident if death occurs instantly is £NOTHING.  However if the victim suffers some pain then some compensation is payable.  The amounts are once again derisory and unfair.

Thus in when considering fatal accident claims on decided cases in the past, the following compensation is awarded where:

If the victim is fully aware of pending death, suffers severe burns and lung damage, fluctuating levels of consciousness between 4-5 weeks, the compensation to the victims estate is worth in the region of £14,000 to £18,000.

The price of an average SUV motor vehicle.

Its not enough but that is what we are faced with at the moment as the law currently stands.  However there are many other aspects to making additional compensation payments for dependents of the deceased and a bereavement award.

Fatal Accident Compensation – Can I Claim?

This question is often asked by family members who have lost a loved one. Usually common sense plays a part as to who can claim compensation following a fatal accident.  The person is usually the next of kin, who is the wife or husband (or surviving partner in a same sex marriage) of the deceased.  That obviously makes sense.

But who can make a claim will also be dependent upon whether the deceased left a will and that the person who is legally entitled to claim was also dependent upon the deceased at the time of death.

This can lead to unjust consequences not only as to who is entitled but also if the family member who wishes to make a claim for fatal accident compensation is also dependent upon the deceased in any way, that could be financial as well as non-financial such as being cared for by the deceased before death.

Non-married partners can also claim however.  This is sanctioned in the Fatal Accidents Act 1976, providing that the couple were living together as ‘husband and wife’ for a period of at least 2 years prior to the death of the other partner.

The harshness of this rule is brought into focus by the recent decision of Swift v Secretary of State.  In this case, an unmarried couple where the wife had gave birth to the deceased’s child just weeks after his death were unable to bring a fatal accident compensation claim due to the fact that they had only been living together for just 6 months prior to the tragic accident.

The Deceased was unlawfully killed at work due to an accident to which his employers admitted fault.  However the fatal accident claim valued in the region of over £400,000 could not be made due to the fact that they did not live together for 2 years prior to death despite the fact that the his partner was pregnant and having his child.

Fatal accident solicitors challenged the unfair law under the Human Rights Act but despite the Judge expressing sympathy for the surviving partner, with the inevitable unjust law that had to be applied to this particular tragic circumstance, there was nothing with the Judge’s power to change the law and grant any fatal accident compensation at work.

The fatal accident claim was therefore dismissed.

The law is totally unjust in this area and outdated like many of the laws following the untimely death of a loved one due to the fault of another.  It is time the law is updated and changes to avoid the tragic consequences that follow.

Nervous Shock and Fatal Accident Claims

The law in this area is outdated, like most of the Fatal Accident Act 1976, the law that has been made since the passing of the Act and everything before it.  The Fatal Accident Act 1976 is now 40 years old.  The family unit in the day, typical white ‘Christian’ Male and Female, married with 2.2 children has changed dramatically since the laws have been passed.  Today divorce rates have rocketed, there are less marriages, people choosing to live together, same sex marriages and so on.

The fatal accident laws however still are ‘back-in-day’ typically the claim for compensation following an unlawful killing in an accident at work or road traffic accident for instance, stems from the bread-winner (typically the husband) losing his life, the the wife and children claiming the dependency award and bereavement.  When things don’t fit in, there tends to be unnecessary heartache.

But what then on the question of nervous shock following a loved one witnesses the death of a loved one.  Often in road traffic accidents and in disaster cases such as airplane crashes and the Hillsborough Disaster.

Nervous Shock – Secondary Victim

Compensation for nervous shock is governed by old law passed before the internet and social media. A claim for nervous shock can be made if a close relative, normally the next of kin, witnesses the death of a loved one and suffers some form of psychiatric injury or ‘nervous shock.’ The law limits the family members who can claim by using the words ‘close love and affection between the person killed (primary victim) and the family member in shock (secondary victim).

As a result of witnessing the tragic events, (the court has in mind ‘eye witness’) due to the close proximity of the relationship and witnessing the event, if harm occurs a claim for compensation can be made against the party at fault.

However, what if the family member did not ‘eye witness’ the event but came to the scene of the accident in minutes after the fatal accident?  The closer in time and space following the accident and witnessing the scene the more likely the court will grant an award of compensation for the psychiatric shock.

The fact that a close family member may witness a disaster for instance on TV (Hillsborough disaster springs to mind) or on Social Media, unfortunately will not give rise to a claim.  The law is based on public policy not by rational understanding.  Once again the Courts have concerned themselves with opening the ‘flood-gates’ of claims.

The law under the Fatal Accidents Act 1976 needs updating quickly and so does the common law where nervous shock arises following a fatal accident so that proper compensation can be awarded to help the family, the victims of such tragic and catastrophic events.  Compensation is not a dirty word, we are getting to a point where people have to justify an award.  It is awarded to help the family not get into poverty, to help pay the bills and just relevie some of the stress following the death of a loved one and here, in addition a further family member also suffering a mental illness.

My Unmarried Partner Dies – But Still Married, Can I Claim?

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.

Fatal Accident Compensation Claims

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,
  • deceased’s estate.

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 award as 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.

Causing Death by Dangerous Driving

Causing Death by Dangerous Driving

The sudden loss of a loved one due to another causing death by dangerous driving is one of the most common fatal accidents that the fatal injury claim solicitors have to deal with.

All fatalities are a personal tragedy to the family, nothing can turn back the hands of time, nothing can cushion the hurt, pain and suffering.  No compensation for a fatal accident can ever be enough, can ever compensate the family left behind.

Fatal accident claims

The law is found in the Road Traffic Act 1988 substituted by the Road Traffic Act 1991, section 1.

The Court/Jury will have to consider very carefully if the defendant dangerously drove a ‘mechanically propelled vehicle’ i.e. motor car, motorcycle on a public road or in a place contrary to the Road Traffic Act as amended.  If so the defendant must be convicted of the criminal offence and the  Judge will apply the appropriate sentence.

If the defendant is convicted of causing death by dangerous driving there will inevitably be a claim for fatal car accident compensation under the Fatal Accidents Act 1976 and the Law Reform Act mentioned above.

What is a mechanically propelled vehicle?

 One major issue is that for the defendant to be guilty of causing death by dangerous driving and as such for the bereaved family to claim fatal accident compensation, the vehicle that the defendant was driving must be mechanical propelled.  So it can be more than just a car or a motorbike.  It can apply to a quad bike, or any vehicle that has been adapted for use on a public road.

Will it Result in a Manslaughter Conviction?

Unless it can be proven that the vehicle was deliberately aimed at victim and as such an intention to kill (i.e. murder) then the lesser charge against the defendant for causing death by dangerous driving will be manslaughter.

It has been reported in the conviction rate for manslaughter since the change in the law has reduced from 89% to 79% due to the possible reluctance of the Jury finding the defendant guilty of manslaughter where the fatal accident was ‘accidental.’

However, it does not lessen the ultimate hurt and grief that is caused the a loved one is killed due to death by dangerous driving.

Making a Claim With Fatal Car Accident Solicitors

Fatal injuries compensation claims can be difficult, complex and demanding.  It should not be left to an average personal injury solicitor.  You need a specialist to help you deal with the important legal matters, the investigations into the fatal car accident and deal with the compensation.

Fatal Car Injury - Contact Us

Advice and assistance is available under a no win no no fee solicitor service so you have nothing to worry about when instructing us.

Fatal Accidents Claims – Unjust Results

Why The Law Is Unjust

The Fatal Accident Act 1976 main form of legislation that deals with what can be claimed following the tragic death of a loved one.  Most fatal accidents claims we deal with are from road traffic accidents (drivers and passengers) and fatal accidents at work claims.

The law is unjust in a number of ways.  If you read this website you will see many examples of unfair and unjust circumstances that illustrate that the law is bias against bereaved families and in favour of insurance companies.  The legal profession that acts for families who have lost a love one have to deal with the uncaring and outdated law as best as possible.  The only way the law can be changed is by the Government, not the Judges.  The Fatal Accidents Act 1976 is Government made law.  Judge’s cannot change it, they must apply it.

Recent Call – Desperate Advice Over A Fatal Accident

For obviously reasons we are unable to provide the actual facts of the case and names but to illustrate the point of an unjust law, fatal accident solicitors consider it is worth mentioning here.

The father of an adult son called to find out what he can do and how he can be involved in the case against the other driver who killed his son in a fatal road traffic accident.  He was separated from his partner at the time.  They were not on good terms.  The son lived with his mother and he was over 18 years of age.

The mother would not communicate with the father.  She did not want him to pay toward the funeral expenses.  She kept from him details of the coroner and information provided by the police.  He had to find information from other family members.

The mother of the deceased son was making a claim under the Fatal Accident Actd 1976 for compensation for her dead son.  The father did not consider making any claim as no amount of money would compensate but on second thoughts he considered that the driver who killed his son should be made to pay something (albeit via his insurance company).  The other driver will pay something in so far a a loss of liberty and fines for say a charge for death by careless driving or death by dangerous driving etc.

However the fatal injury claim solicitors discussed his compensation entitlement and the loss of live for his son was effectively worth £NOTHING.  The following was considered:

  • Adult Child was killed.  As his son was over 18 years of age, the law says that to a parent the loss of life is worth nothing because he was killed instantly.  Had he lived for a few hours or weeks his parents may be able to obtain a few hundred or a few thousand pounds.  Not a lot.  Really an insult to the parents.
  • As an adult child was killed, the parents do not even receive a pitiful bereavement award of £12,980.  An award to a son or daughter of a parent is only payable if their child is under 18 years of age.  If there are two parents then the award is shared.  The award itself is simply not enough to to compensate for the loss.  We appreciate that no amount of money will never be enough but surely it is worth more than this?  Celebrities are being paid over £200,000 for hurt feelings.  How can £12,980 be justified with these sums to celebrities?
  • The father was not financially dependent upon his son.  That is the son did not pay his father any money for his keep or pay his father anything.  Therefore no claim for dependency on his son can be claimed.
  • His mother paid for the late son’s funeral expenses so the father sustained no loss.  His mother however can reclaim the funeral expenses providing such expenses are deemed reasonable.
  • Thus, the total compensation for the life of his son £NOTHING.
  • His mother, to whom the son was living, may be able to claim a dependency award for a limited period if he was paying for his keep prior to death.  But fatal accident claim solicitors understand that this was not the case as he was not earning any money.
  • Total claim for the loss of their son £NOTHING.  They just were only able to reclaim the cost of the funeral expenses.

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.

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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.

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