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Damages Following a Fatal Accident

When negligence has caused a death, there can be a claim for compensation. The way the compensation is calculated is different to when the victim has survived. For instance, if the victim is still living, the compensation will include consideration of the level of care and support the claimant now needs, if any, and the impact that their injury has had on their lifestyle and employment. The law attempts to put the claimant in the position they would have been but for the accident.

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However, when someone has died, the calculation of the damages is all done under the Law Reform (Miscellaneous Provisions) Act 1934 and/or the Fatal Accidents Act 1976. There are specific losses that can be claimed as illustrated below.

Pain and suffering, Loss of Amenity and Losses to Death

This only covers the deceased’s pain and suffering during the period following the initial injury until their death. If they died instantly, they are unlikely to receive compensation for pain and suffering.

If alternatively the claimant lived for some time after the accident there may be a claim in respect of the services, care or assistance they received prior to their death, as well as loss of earnings.

Funeral Expenses

Reasonable funeral expenses can be claimed if someone died as a result of negligence. This will include the funeral directors’ fees, may cover the reception, depending on the expectations, and can include the expense of a headstone. However, the headstone must be reasonable, so you would not normally be able to claim for a very large extravagant memorial.

Dependency

Under the Fatal Accidents Act, a dependant can bring a claim following the death of somebody caused by the negligence of another. A dependant is anyone who had a reasonable expectation of financial benefit from the deceased, and falls within one of the categories listed until the Fatal Accidents Act. For instance, this includes spouses or former spouses, civil partners, a co-habitee that has lived with the deceased for at least two years prior to their death, a parent, a child or anyone who is treated as a child of the deceased, and some other wider family members. The claimant must be within the defined categories.

The dependant will then often claim for financial dependency. This involves a calculation based on the deceased’s income and the amount that they were likely to have contributed to the specific dependant eg their spouse or their children. The dependent’s income is also taken into account. There is considerable discretion when calculating the level of dependency. For instance it can often be argued that children are dependent on their parents until the age of 22 if they are in full time education, even though they become a legal adult at 18 years old.

It is often difficult to calculate what the deceased’s future income would have been. For instance if the deceased was struck down while they were only beginning their career, it can be difficult to calculate how much they would have earned over their working life. A trainee lawyer for instance may have gone on to become a fully qualified solicitor and then a partner. This uncertainty means that it is often a complex and difficult exercise to work out someone’s likely future income. Government statistics of average earnings in various careers assist, and evidence in more complex cases can be obtained from a forensic accountant.

In addition, it can be difficult to establish how long a person would have worked for. While the state pension age can be a good guide, in reality some people may have retired at a later age or have taken early retirement. Evidence will consequently need to be gathered to establish their likely retirement age.

A dependant can also make a claim in respect of the loss of services the deceased would have provided. For instance, if the deceased is a husband and father, they often would have provided a great deal of support to their spouse. This can be little things such as looking after the children, or it can be big things like doing all of the house maintenance, domestic chores and/or tending to the garden. Following the death of the deceased the widow may now need to hire people to assist them. For instance they may arrange for their children to go to nursery, employ a cleaner or hire a gardener or handyman. Equally they may rely on support and assistance from family and friends.

Bereavement Damages

Another head of loss under the Fatal Accidents Act is called bereavement damages. This is a fixed award which is given to the deceased's spouse or parent of a minor child to compensate them for the loss of a loved one. It is purely a nominal amount and is not meant to reflect the value of the deceased’s life, or the grief their family will inevitably feel. At the moment this is fixed at £12,980. This compares to £326,700 which is the highest award for a severely brain injured claimant for pain and suffering. Many would say bereavement damages have long since needed reforming to equate to the most serious type of personal injury.

It is also possible to claim for loss of attention of a parent on behalf of any children of the deceased. The purpose of this award is to compensate the children for the loss of attention and care they would have received from the deceased. Again, this is not meant to value the contribution that the deceased would have made to family life. Instead it is a nominal amount to acknowledge the loss the children have suffered as a result of the defendant's negligence.