The help of supportive specialist solicitors can however at least ease the financial burden that often follows the death of a loved one and can aid in starting to rebuild the lives of those who were financially dependent on the deceased.
Making a claim for fatal accident compensation at what will be a highly emotional time will obviously not be the first thing loved ones think about or even at all. But in many cases compensation will be financially essential for the family to make ends meet after the death, and we will try to understand the needs of the family and to secure an early interim payment where possible.
Interim payments will readily be agreed by the opponent’s insurers if they admit liability, and they will admit liability where the case is clear cut and there is compelling evidence that their insured was negligent and caused the accident. But unfortunately the evidence is rarely so clear cut and because of the amount of money at stake in many fatal accident cases the insurers are likely to fight the claim if they believe there is a chance of avoiding liability or achieving an apportionment of liability.
A liability apportionment occurs when fault lies with more than one party, for instance the defendant, a second defendant and possibly the claimant as well. So if, for instance, a passenger in a car is fatally injured when the car collides with a lorry, the claim may be directed to the insurers of the lorry and the car, and both may blame each other whilst arguing that the deceased passenger was partly to blame for not wearing a seat belt. In that scenario an interim payment would be likely because it is clear that there will be some liability on the part of the two drivers and any ‘contributory negligence’ will be a percentage reduction (25% or 15% depending on whether the wearing of a seat belt would have made a real difference in that particular case).
To take another example, if a worker if fatally injured in a construction site accident when he falls from an unsecured ladder on a scaffold, liability will need to be proved, by evidence, against the main site contractors or sub-contractors responsible for the scaffold. They in turn may bring in another party and may allege negligence against the deceased for failing to ensure the ladder was properly tied or footed.
Evidence will usually be available already in these cases because the police and in some cases the Health & Safety Executive would have carried out detailed investigations. We would obtain our own eye witness and expert evidence where necessary, and this may include expert accident reconstruction evidence.
In cases of sudden, violent or unexplained death there will also be an Inquest before a coroner. A coroner is a doctor or lawyer (often both) appointed by the local council to investigate deaths in the local area. The Inquest is a fact finding legal hearing arranged by the coroner to investigate the circumstances surrounding the death. The coroner will not apportion blame (that is the role of the criminal court and the civil court) but will try to establish the cause of death. He has considerable freedom in terms of the evidence he allows and the questioning of witnesses, but the family’s representative will usually be allowed to put questions to witnesses on their behalf. The coroner will return a verdict using a common form of words such as death by natural causes, accidental death, industrial disease, and where the case is more complicated will give a narrative verdict.
The bereaved family will often want to attend and be represented at the coronor’s inquest. Osbornes’ Stuart Kightley is experienced in attending inquests and is happy to discuss acting in any case with the family. Funding for inquests is not covered under a No Win No Fee agreement but it may be that there is cover under a legal expenses insurance policy.
From the point of view of liability in the civil claim it is very useful for the family’s lawyer to attend the inquest, because it will be an opportunity to get advanced sight of the police evidence and to assess and question the witnesses. The defendant will usually be represented as well, and so they too will be able to gauge the strengths and weaknesses of the civil claim.
Fatal accident cases can be complicated and the law in this area is gradually evolving but does not always recognise the trauma and financial hardship caused by the death of a family member.
For instance, there is a statutory fixed sum (of £11,800) for bereavement which is payable by the person who negligently caused the death (or his insurer), but only to fixed classes of claimant, including husbands, wives and children.
Children of a deceased parent, the parents of a deceased adult and more distant relatives are not currently entitled to recover compensation, however close in reality their relationship was with the deceased.
The Law Commission has recommended reform in this area, and whilst the last Government consulted on widening the category of claimants they did not go ahead and change the law.
Osbornes Solicitors supports the work of the Association of Personal Injury Lawyers and others in lobbying the Government to bring the law up to date in the field of fatal accident claims. The level of the bereavement award is far too low, and makes it cheaper to ‘kill by negligence’ than to injure in most cases. The award of bereavement damages, it is true, goes to the estate of the deceased, and so not necessarily to those who need the money, but the argument that it is a ‘windfall’ for family members is misplaced, and even if the deceased had no close family that is not something the defendant who brought about the death should benefit from. A substantial payment would at least mark the seriousness with which our society views the negligent killing of another person. At the very least, the Government should make sure that the fixed amount is automatically uprated for inflation annually.
Someone who was financially dependent upon the deceased may be entitled to recover damages for the loss of that dependency.
The class of people entitled to make a dependency claim is wider than for the bereavement award, and includes former spouses and civil partners, but in all cases the dependency has to be proved by evidence. So in a straightforward case, the deceased may have been the husband and he and his wife both worked as full time employees and they were paid monthly on a PAYE basis. They had no children. The ‘dependency’ is calculated by working out their joint net income, deducting a proportion to allow for money he would have spent on himself and then deducting his wife’s net earnings. The balance is the part of the joint income that the deceased contributed to the spouse. Future dependency gets more complicated, and involves projecting and plotting the deceased’s career progression. Retirement plans and life expectancy may also be relevant.
In addition to the loss of the deceased’s income there may also be loss of services, such as housework, gardening, DIY etc. which need to be proved, quantified and claimed.
Where there are dependent children, different calculations and projections are necessary, and there will be claims for loss of parental services and perhaps the cost of private childcare as well as for the loss of financial dependancy.
We acted for the widow and daughter of a man who was fatally injured in a road traffic accident. Osbornes Partner Stuart Kightley represented them at the coronor’s inquest and the contact he made with a witness there secured the evidence necessary to prove the liability case against the driver of the car involved in the collision, and liability was agreed after negotiation, with the insurers accepting the majority of the blame. The damages claim contained two main elements: what the lawyers call the Law Reform Act claim and the Fatal Accidents Act claim.
The Law Reform Act claim covers the pain and suffering element, which is negligible in a case where the deceased dies very soon after the accident, and funeral expenses. In this case the funeral expenses included repatriating the body to India and holding a funeral ceremony over there. The main part of the claim, under the Fatal Accidents Act 1976, was for bereavement, loss of dependency and loss of services. The bereavement award was fixed at £11,800, to be divided between the surviving spouse and child.
The loss of financial dependency claim was based on the fact that although husband and wife had the same job, as care home workers (in fact the wife was the more senior of the two), the husband worked night shifts to earn more money, and so the dependency amount was calculated by adding their net incomes together, deducting an allowance for ‘own expenses’ and deducting the wife’s income from that. The resulting balance (about £8000 pa net) was projected forward to retirement. For the daughter the dependency claim was to age 21, on the basis that she is likely to have attended university and would have been financially dependent until graduation.
The reason the deceased was working nights was because the couple had a baby and were sharing the childcare around the clock, with the wife working during the day. The dependency claim included the loss of the deceased’s childcare services. The mother relied on help from family and friends to look after her daughter after the accident and we obtained witness evidence from them to prove the extent of the unpaid childcare that was provided; the loss claimed was the value of that childcare. The rate was high in the pre-school years, reducing considerably after school until she no longer needed care. There was also a lump sum claim for loss of ‘parental services’ to reflect the love and affection that only a parent can give.
The case was finalised at a settlement meeting for about £275,000 gross.