Moore Blatch approach to brain injury
Niamh Hills | 10.04.2020
04.03.2019 Matthew Claxson
In cases of road death the victim is not only the person who has died but also those that they have left behind trying to cope with the unexpected sudden loss of a loved one.
After a road death the bereaved family are faced with tackling unwelcome legal issues of which they seldom have had any previous experience.
A solicitor specialising in compensation claims arising out of fatal incidents, if instructed, will be able to help the bereaved family by providing clear advice, representation, and guidance on the following issues:
The police investigate all cases of road death that may result in a defendant being charged with an offence. If there is a charge then there will be a formal Court Hearing to determine guilt and/or pass sentence. A solicitor may attend the Hearing to offer advice to the bereaved family on what is happening in the criminal process, and to also take a note of the evidence to support any later civil compensation claim against the defendant.
The Coroner is notified of all deaths. In the absence of any successful criminal prosecution following a road death then the Coroner is likely to hold an Inquest where witnesses will attend to give evidence to assist the Coroner to determine the cause of death. The defendant is often represented by a legal team funded by their insurance company which can be perceived by the bereaved family as unfair if they are not also legally represented. A solicitor instructed by the bereaved family may arrange for appropriate representation at the Inquest to ensure that there is an “equality of arms”. Furthermore, in absence of any criminal trial the Inquest affords the bereaved family the opportunity to raise questions of the Coroner to understand how their loved one died.
The media will usually print a story after a road death. This can be with or without the bereaved families consent or input. The media could obtain information, including pictures, from online social networking forums. A solicitor on behalf of the bereaved family could prepare a statement to provide to the media, and request that particular pictures are used.
The deceased may have held assets that can only be unlocked by the next of kin obtaining a Grant of Probate where the deceased had a Will, or Letters of Administration where the deceased did not have a Will. The next of kin can apply themselves for the Grant of Probate or Letters of Administration but may choose to instruct a solicitor to obtain this document.
In order for a civil claim to succeed, with payments made, fault in full or part must be established against the defendant. If the defendant is not found at fault then no payments will be made.
A civil claim against the defendant can be brought by the Estate of the Deceased and/or by those who depended upon the deceased for either financial assistance or services. A claim by the Estate will require a Grant of Probate or Letters of Administration.
The claim by the Estate is brought under the Law Reform [Miscellaneous Provisions] Act 1934 which represents what claims the deceased had between the incident occurrence and death. This can include for the following:-
- Pain and suffering
- Property damage (clothing/jewellery/vehicle)
- Funeral expense
The Dependents claim is brought under the Fatal Accidents Act 1976. This includes for a bereavement award, and sets out the criteria for a dependency claim which if successful is often a substantial payment.
The bereavement award is paid to the husband or wife or civil partner of the deceased. If the deceased is a child then the payment is made to his parents if he was legitimate or his mother if he was illegitimate. The award is £12,980 for deaths after the 1st April 2013.
The dependency claim can be brought by a stated class of person who depended upon the deceased for financial support and/or services. This is often scrutinised by a defendant insurance company to determine if the person bringing the dependency claim is entitled to do so and, if so, challenge the manner in which any loss is calculated. The type of loss that can give rise to a claim is typically (not an exhaustive list):-
a) Loss of income. This includes loss of the prospect of earned income.
b) Loss of gratuitous services provided by the deceased
c) Loss of fringe benefits, e.g. company car
d) Loss of gifts which were anticipated
e) Losses incurred because of death.
A solicitor will need to identify all of those who are a potential dependent because the defendant’s insurance company is only required to make a single payment for dependency that is then apportioned between those who are “qualifying” dependents. A solicitor can help by giving advice to ensure that all qualifying dependents have been identified with appropriate payments made so as to reduce the likelihood of dependents coming forward at a later date after the case has concluded.
An interim payment is a payment by the defendant insurer on account of the final settlement of a civil claim. A bereaved family will often find themselves in financial dire straits if they have paid out for a funeral and there has been a reduction of income into the household. A solicitor can help by making to the insurance company an early request for an interim payment that can be of significant assistance to the family.
It is important to realise that most claims for compensation are subject to strict time limits. The safest assumption, when the death was immediate, is that a 3 year limitation period runs from the date of incident. This can change where the deceased survived for a time after the incident that eventually caused the death. A solicitor can help by advising on the applicable time limit relevant to the particular circumstances.
A solicitor can help by exploring with the family the best method of funding for the case.
Matthew Claxson is a Solicitor and Partner at Moore Blatch Solicitors specialising in serious injury and fatal incidents.
Tel: 0800 157 7611
Profile available on LinkedIn. Twitter: @matthewclaxson