23 June 2015
Instructing the Right Lawyer in a Fatal Accident Claim
I recently attended a Crown Court trial of a HGV driver who, whilst on his phone and speeding, collided into the back of a paramedic car. The collision caused the car driver to sustain a brain injury and his passenger sadly died.
At the time, I was acting only for the brain injured paramedic driver in a personal injury claim against the HGV driver, who pleaded not guilty up until the jury at the Crown Court found him to be guilty.
At the end of the criminal trial, I was approached by the family of the deceased passenger. The family had a solicitor acting for them who did not attend the trial, and the family were concerned about the progress being made by this solicitor. The car passenger’s widow was disabled and at risk of losing her home due to lack of income to meet mortgage payments. I agreed to take over the claim from their current solicitor.
On taking over the claim, I met with the bereaved family at their home – something I was told their former solicitor had not done. A meeting in person with the bereaved family is, in my opinion, crucial to understanding a family's situation and what it is they want from any civil compensation claim. It is important to recognise that no financial compensation will change what has happened or bring back a loved one. However, correct legal advice can guide a family at such a difficult time through what may be seen as a legal labyrinth.
The family had been told by their former solicitor that very little could be done in the civil case until the criminal trial had concluded. This was clearly wrong as the deceased was a passenger in the car and there was no suggestion that he had interfered with the control of the vehicle. The family had also been told that the HGV driver’s insurance company had agreed an interim payment of £10,000 but this payment had not materialised. I could see no rationale for such a small interim payment and would expect an initial payment in such circumstances to be more substantial.
On contacting the HGV driver’s insurance company, I immediately secured an admission of liability. I also secured an interim payment of £20,000, on account of the claim that was received by Faster Payment to be sent on to the client within 7 days to help pay household bills. The£20,000 represented a statutory bereavement award of £12,980 (which is fixed and non-negotiable) and payment of funeral expenses, plus some minor costs incurred.
What is Included in a Fatal Accident Claim?
In a fatal accident claim, you have a claim for the deceased’s estate. This usually includes funeral costs, damage to clothing and property, and any pain and suffering of the deceased between the accident and time of death. For that claim to be brought, you need to have probate in place. The deceased’s family had not been advised of the estate's claim at all by their previous solicitor, and I had to put into motion the legal process to obtain the grant of probate.
Furthermore, you have a claim for dependency that is complicated by the Fatal Accident Act 1976, which stipulates who can be classified as a dependent and entitled to bring a claim. This involves mapping out family and friends to see who relied upon the deceased for financial support and/or services such as DIY.
In the family's case, the main dependent was the widow but no detailed advice by the former solicitor had been given regarding what she was able to claim. For example, the widow had been advised that her late husband’s loss of earnings claim was his annual pay multiplied by his lost years to retirement. This was wrong. The correct calculation crucially deducts a percentage from the deceased's pay to reflect the money he would have spent on himself in any event.
For example, a working person will use their pay for their own lunch before the remainder is given toward household expenses, etc. Also, had the widow worked, then her income is also considered when deducting a sum from the calculation. The inevitable outcome is a smaller claim for loss of income than simply multiplying the annual pay by the lost years.
The point to keep in mind is that the claim is one of dependency, thus what the dependent reasonably could have expected to have received from the deceased in the absence of death.
Additionally, consideration must be given for the deceased's salary increases, loss of benefits and impact upon pension for the widow who reasonably would have relied upon her late husband’s pension, had he lived.
The widow had also relied upon her late husband for care and DIY around the home, due to her disability. Since the fatal accident, she now has had to pay for these services. A claim exists for the care and assistance that would reasonably have been done by the deceased if the accident had not occurred.
Fatal Accident Claims Require a Specialist Fatal Accident Solicitor
When I took over the case, it had been going for 17 months with little progress. It was regrettably clear that the former solicitor had little or no experience of handling a fatal accident claim.
Fatal accident claims are complex because they often require the solicitor to have working knowledge of the following:
- Criminal law – for guiding the bereaved family through the criminal prosecution
- Probate law – for advising on the estate’s claim
- Coronial law – for advising on the Inquest
A fatal accident lawyer also needs the skill of navigating through the fatal accident claim to establish or evidence a dependency claim.
When instructing a solicitor in a fatal accident claim, a prospective client should not be shy about asking in which area of law the solicitor practices, and how many similar cases the solicitor has handled in the previous year. After all, you would not want a plumber to do your household electrics; you would want a qualified electrician.
It is also advantageous for a specialist solicitor to be instructed early on following a fatal accident so that the family's immediate needs can be addressed, for example seeking an interim payment to reimburse funeral costs and to arrange for representation at the Inquest.
For more information or a free consultation, call Slater and Gordon Lawyers 24/7 on 0800 916 9046 or contact us online.
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Wednesday 21st November 2018