Important legal information to consider before pursuing a fatal accident claim | Fieldfisher
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Important legal information to consider before pursuing a fatal accident claim

Often the last thing on the mind of a family whose relative has died as a result of negligence is seeking compensation, but damages can be pursued on their behalf for the loss of financial support provided by the deceased plus certain costs and expenses, as detailed below.

Fatal accident claims can be complicated, with certain variables to consider, which are different to pursuing a case for a living claimant.

The law governing fatal claims must be carefully considered. Here is a list of some key points and practical tips for fatal accident litigation:

1.    Time limits for claims

It is crucial to be aware of the time limits associated with fatal accident claims. As a starting point, limitation runs from the date of the accident and expires after 3 years. If the injured party dies within this 3-year period, limitation will then run from the date of their death. 

2.    Identifying your client

Following the death of a relative, it is common for their close family,  such as their children or spouse, to seek legal advice following the accident. It is important to identify the correct representative of the Estate. Obtain a copy of the deceased's Will (an original is preferable) and carefully consider the named Executor(s). 

Instructions must be taken from the deceased's Executor(s) and the funding agreement for the claim entered into with the Executors. The Executor(s) should also be advised of the need in most cases to obtain a grant of probate.

3.    Fatal Accident Act 1976 

This Act sets out who is eligible to claim for a loss of dependency on the income and services of the deceased. Both the dependency on income as well as dependency on services should be considered and valued. Dependency claims and claims for dependency on income can be technical and must always be considered on the facts of the case. 

What is important here is the definition of a 'dependent' under s.12, when pursuing a claim for dependency. This is because the Act is rather outdated, and its definition of a dependent does not take into account modern families and those who would now be considered a dependent outside of the law.  It is very traditional in its approach and excludes foster children, for example, or the child of an unmarried partner. 

It is also worth remembering that claims for dependency can only be advanced once. When you are considering a claim or claims for dependency, all potential dependents must be identified.  

4.    Law Reform (Miscellaneous Provisions) Act 1934

This Act allows the deceased's Estate to bring a claim following death and this claim survives the death of the injured person. The Estate can claim for the pain, suffering and loss of amenity of the deceased, the value to be determined by the JC Guidelines, as well as any past losses flowing from the injury such as medical expenses/treatment, care provided to the deceased during their lifetime, and travel expenses, for example.  

Funeral expenses can be claimed under either Act but not recovered twice. 

5.    Bereavement damages 

Bereavement damages are a statutory award available under the Fatal Accidents Act 1976. There is a limited group of people who can claim this award and it is a fixed sum of £15,120. There is only one award, which must be divided between the eligible claimants.  

A claim based upon the principles established in Regan v Williamson should also be considered, which is an award for the loss of the deceased’s love and affection or care and attention or an award for the loss of intangible benefits.

6.    Consider the involvement of the coroner

In claims where somebody has died in unnatural circumstances, for example, an accident at work where the cause of death is not known, or a claim for industrial illness, the coroner will be involved.

 In claims for industrial illness, where a diagnosis has not been confirmed by way of a biopsy in life, we advise clients on the need for a postmortem and the coroner should be made aware of any legal claim. Information can be shared with the coroner such as a witness statement or employment history, with the family's consent, to assist with their investigations. 

7.    Hospice care costs

In industrial illness claims, a hospice may well be involved in end of life care. Following Drake v Foster Wheeler, the costs incurred by the hospice (the % of costs which are funded by charitable contributions rather than NHS input) can be recovered as part of the claim and then paid back to the hospice. 

This information will be gathered during the claim and included as part of the claimant's schedule of loss. 

If you would like further information or would like to discuss a possible fatal accident claim, please contact Charlotte Thorpe.

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