When the victim of a personal injury action has died prior to the case being settled or determined by a Court, there are two distinct claims that are possible as follows:-
- A claim for the benefit of the deceased’s estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934; and/or
- A claim on behalf of the dependents of the deceased pursuant to the Fatal Accidents Act 1976.
These claims can be brought in tandem.
Who can make a Claim?
In respect of a claim for the benefit of the estate of the deceased, the claim may be brought by the executors or the administrators of the estate.
In respect of a claim on behalf of a dependent of the deceased, a limited class are entitled to claim including the following:-
(i) The spouse or civil partner of the deceased.
(ii) The common law husband or wife of the deceased, provided the parties have been living together for a period of at least two years immediately before the deceased’s death.
(iii) Parents or ascendants of the deceased.
(iv) Any person who was treated by the deceased as their parent.
(v) Any child or descendant of the deceased.
(vi) Any person treated by the deceased as their child.
(vii) Any brother, sister, uncle or aunt of the deceased.
(viii) Any children of the deceased’s brother, sister, uncle or aunt.
If you are within one of these classes, then you will also need to show that you were, or were likely to become, dependent (financially or otherwise) upon the deceased.
A claim for statutory bereavement damages can also be brought on behalf of:-
- The deceased’s husband, wife or civil partner.
- If the deceased was aged 17 or less and had never married, their parents if they were legitimate/or mother if they were not legitimate.
What can be claimed?
In respect of a claim for the benefit of the estate, there are three types of compensation that can be claimed for as follows:-
- General damages for the deceased’s pain, suffering and loss of amenity before death.
- Special damages, i.e. any financial losses incurred by the deceased between the date of the accident and date of death (e.g. costs of medical care, loss of wages prior to death).
- Funeral expenses provided they have been paid for by the deceased’s estate.
In respect of claims on behalf of a dependent of the deceased, the following can be claimed:-
- Loss of financial support from the deceased which is either based on past support or where there is a reasonable expectation that support might be forthcoming in the future.
- Loss of dependency on the deceased’s services, e.g. things like the provision of help around the house, gardening, DIY, the provision of care etc.
- The loss of a mother’s services. This takes into account the extended hours, increased commitment and provision of love that perform part and parcel of the care a mother traditionally provides her children.
- Statutory bereavement damages. These are fixed by statute. Currently the sum is £12,980.00 for deaths occurring on or after the 1st April 2013.
- Funeral expenses if they have been paid by the dependent.
In respect of claims for the benefit of the deceased’s estate, assuming the death occurred within three years of the accident, the limitation period is three years from either the date of death or the date of knowledge of the deceased’s personal representatives, whichever is the later.
In respect of a claim brought on behalf of a deceased’s dependents, the limitation period is three years from the date of death or three years from date of knowledge of the dependents.
In short a claim on behalf of the deceased’s estate relates to recovering some of the losses that the deceased could have claimed if they had survived.
In short a claim on behalf of a dependent relates to a claim on behalf of someone who has been disadvantaged in some way by the death of a deceased (whether in direct financial terms or in terms of loss of care/services etc).
It might also be possible to bring a third type of claim under the Human Rights Act 1998.
If you want advice about bringing or defending such a claim then please contact Daven Naghen by telephone 01775 722261 or email firstname.lastname@example.org or arrange an appointment or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH. For those people considering the prospects of bringing a claim, usually we offer a free half hour interview.