Who Can Claim From A Fatal Accident?

Suffering the loss of a loved one is devastating and can be even harder to process if that loss comes at the hand of someone else’s negligence or failings. In this guide we share:  

• When fatal accident claims may arise  
• The types of fatal accident claims  
• Bringing a claim on behalf of a deceased family member  
• What evidence is required to make a fatal accident claim  
• Statutory bereavement award 
• Time limits for bringing a claim 

When might a fatal claim arise? 

A fatal accident claim may arise when it can be shown that a person’s death was caused, or contributed to, by the negligence or wrongful act of another. It is important to remember that fatal accident claims only cover circumstances where a person’s death was accidental i.e. due to an error, mistake or omission (failure). 

At Fletchers Solicitors, our specialist medical negligence and personal injury teams have supported many bereaved families in various types of fatal accident claims. The most common types of fatal accident claims include:  

• Medical Negligence – when a patient has died as a result of negligent medical care or treatment. For example, due to a misdiagnosis or delayed diagnosis of a serious condition such as cancer, a failure or delay in carrying out medical intervention such as emergency surgery, or as a result of an error or failure during a surgical procedure.  
• Road Traffic Accidents – when a collision, which has been caused by the fault of another driver or pedestrian, has unfortunately resulted in the death of one or more parties. 
• Accidents At Work – when an employee has died through an accident at work, and their employer failed to take reasonable measures to prevent such an accident from happening. For example, where the death has been caused by a fall from height or contact with moving machinery due to a lack of safety equipment being provided. 

Types of fatal claims 

 When a loved one dies as a result of another’s negligence or failures, making a claim can feel like a step towards justice. The laws that explain the types of claims that can be brought, and in turn the compensation available, come from two different legislation:    

Claims Under The Law Reform (Miscellaneous Provisions) Act 1934 (‘the 1934 Act’) 

The 1934 Act allows for a claim to be brought on behalf of the deceased’s estate (also known as an ‘estate claim’). An estate claim allows the deceased’s family to pursue any claim which the deceased would have been entitled to pursue, had they survived.  

Equally, if the deceased had already started a claim but passed away whilst the case was ongoing, this law means their family could continue to pursue the claim on the deceased’s behalf. 

Claims Under the Fatal Accidents Act 1976 (‘the 1976 Act’) 

The 1976 Act allows for certain family members to claim a type of compensation, known as a ‘statutory bereavement award’ which seeks to recognise their grief and the loss they have suffered, separate from other financial losses.  

It also allows a limited number of individuals to bring what is known as a ‘dependency claim’, if they were dependent on the deceased for financial support and/or services.    

Claims under the law reforms (Miscellaneous provisions) Act 1934 

Who can bring a fatal injury claim on behalf of the deceased’s estate? 

Eligibility to bring a claim on behalf of the deceased estate, will depend on whether or not the deceased left a will. 

If your deceased relative died with a valid will 

If the deceased had a valid will, the person(s) who are appointed in the will as the executor(s) of the estate, will be legally entitled to bring a fatal accident claim on behalf of the deceased’s estate.  

However, if the will does not appoint any executors, or if the executors do not wish to bring the claim, any beneficiaries of the estate will be appointed as ‘administrators’ and they will be able to bring a claim on behalf of the deceased’s estate. 

If the deceased died without a valid will (‘intestate’) 

If the deceased died without a valid will, the person(s) who are entitled to administer the deceased’s estate under the rules of intestacy, will be legally entitled to bring a fatal accident claim on behalf of the deceased’s estate. 

However, this entitlement is determined by a strict order of priority: 

1. Surviving spouse or civil partner of the deceased 
2. Children of the deceased or grandchildren 
3. Parents of the deceased 
4. Whole blood siblings of the deceased, or their children 
5. Half-blood siblings of the deceased, or their children 
6. Grandparents of the deceased 
7. Whole blood uncles and aunts of the deceased, or their children 
8. Half blood uncles and aunts of the deceased or their children 
9. The Crown – where no living relatives can be identified under the intestacy rules and the crown inherits the estate.  

What evidence is required? 

In either scenario, the first step is usually to show that the person bringing the claim on behalf of the deceased’s estate, is legally entitled to do so. The only way to prove this is by making an application to the probate registry, for one of the following documents: 

• Grant of probate: if the deceased died with a valid will. 
• Grant of letters of administration: if the deceased died without a valid will. 

Once the application has been processed, the probate registry will issue a paper document which recognises that the person bringing the claim is indeed permitted to do so. It will usually be necessary to obtain a grant, before a defendant will agree to pay out any compensation, or before to issuing court proceedings (or as soon as possible thereafter).  

Families may have already obtained a grant, as they are sometimes required in order to manage and distribute the deceased’s estate, particularly if the value of the estate was a significant amount, the deceased owned property, had bank accounts in their sole name or if the deceased had significant debts.  

However, if you have not already obtained a grant, our specialist serious injury team can advise you as to the type of grant which is required and guide you through the application process. 

What compensation can be claimed in an estate claim? 

Under the 1934 Act, the deceased’s estate will be entitled to compensation for any losses, which the deceased would have been entitled to recover, had they survived. 

General damages are awarded for any pain, suffering and loss of amenity (‘PSLA’) which the deceased suffered in the period between the date of injury to the date of death. 

Special damages relate to any actual ‘out of pocket’ expenses and financial losses, which the deceased (or their family members) incurred as a result of the negligence, between the date of injury and the date of death (past losses). 

In an estate claim, families are not generally permitted to recover special damages for any losses which continued or occurred after the date of death (future losses).  

However, families may be entitled to claim certain funeral expenses, such as the cost of a wake, memorial service, cremation or burial services and a headstone, providing they were paid for by the deceased’s estate.  

The other types of special damages which a family may be entitled to claim, will depend on factors such as the cause of death, the length of time that the deceased was alive for following their injury, and the individual circumstances of the deceased and often their family members. 

Examples may include: 

• Damaged clothing or other items such as phones, bicycles or motorbikes (in RTA claims) 
• Care and assistance provided to the deceased, either by family members (gratuitous care) or professional carers (if not covered by the NHS). 
• Loss of earnings for the deceased or family members, such as the deceased’s spouse or partner, if related to the negligence. For example, if a relative had to take time off work to care for the deceased. 
• Medical expenses not covered by the NHS such as medication, prescription or private treatment costs. 
• Travel expenses relating to the negligence itself, for example, where the deceased had to attend additional hospital appointments. 

Time limits for bringing a claim under the Law Reform (Miscellaneous Provisions) Act 1934 

Generally, an estate claim must be brought within 3 years either from the: 

• Deceased’s date of death; or 
• Date on which the deceased’s family had ‘reasonable knowledge’ that their death may have been caused or contributed to by another person’s negligence or wrongful act (whichever date is later).  

The exception to this, is where the deceased would not have been permitted to bring their own claim, had they survived, because the relevant time limit (limitation period) had already expired, prior to their death.  

For example, if the deceased’s death was caused by negligent medical treatment which occurred more than 3 years before their death, and the limitation period had expired, it is unlikely that an estate claim would be successful. 

However, establishing the applicable limitation period often requires careful consideration and it’s important to seek legal advice as soon as possible.  

If you think you may be entitled to bring an estate claim on behalf of a loved one, but you are unsure about the limitation period, please contact us and our specialist legal team can help you to understand whether you are within the relevant time limit to bring a claim. 

Claims under the fatal accident act 1976 

Statutory bereavement award

Who can claim a statutory bereavement award? 

Under the 1976 Act, certain relatives may be entitled to claim a single one-off payment known as the ‘statutory bereavement award’.  

The eligible relatives are as follows: 

• A spouse or civil partner of the deceased 
• A cohabiting partner of the deceased, providing they were living with the deceased for at least 2 years immediately before the date of death 
• Where the deceased was a child, who was never married or in a civil partnership: 

1. 1. The parents of the deceased, if they were married at the date of death; or 
   2. The mother of the deceased, if she was not married to the child’s father at the date of death 

We understand that the very limited categories of eligible relatives can feel deeply unfair, as they exclude various other family members. For example, the parents of a deceased adult, the child of a deceased parent and the unmarried father of a deceased child. It is hoped that these may be extended in the future. 

How much is a statutory bereavement award? 

The amount is set by legislation and can be subject to change; however, it is currently £15,120 (as of 1st May 2020). 

Where there is more than one eligible relative, this amount must be split between them. 

Dependency claims

In simple terms, a dependency claim can be brought by a limited number of eligible people, if they were “reasonably reliant” on the deceased for either, financial support or services, immediately prior to their death. This could have been either complete or partial reliance, in order to bring a claim. 

Who can bring a dependency claim? 

Under the 1976, only the following people may be eligible to make a dependency claim.  

• Current or former spouses or former spouses of the deceased 
• Couples who had been living together in the same household for at least 2 years before the deceased passed away 
• Any parent of the deceased, or any person the deceased treated as a parent (such as a step-parent) 
• Any child or descendant of the deceased 
• Where the deceased was married or in a civil partnership, any person the deceased treated as a child or parent in relation to that marriage or civil partnership (such as a step-child) 
• Siblings, aunts or uncles of the deceased 

There is no limit on the number of eligible people (‘dependants’) who may bring a claim, however, only one dependency claim can be brought on behalf of all dependants. Therefore, it is important to ensure that all potential dependants are included in the claim from the beginning. 

It should be noted that only the deceased’s estate can make a fatal accident claim for the first 6 months following the deceased’s death. This means that in the first 6 months, the personal representative can bring a joint claim on behalf of both the estate and any dependent(s). However, after the first 6 months, any dependent(s) may bring a separate dependency claim, providing the estate has not already done so.  

Financial v services dependency 

• Financial Dependency: This applies to cases where a person was financially dependent on the deceased’s income or financial support, and they are now worse off than they would have been, had the deceased survived. For example, where a mother or father has passed away leaving a child behind, or where the deceased’s spouse or partner was financially reliant on their income. 
• Services Dependency: This applies to cases where a person was dependent on the deceased for services, which can no longer be provided. For example, where a spouse or partner was reliant on the deceased for childcare, household chores, such as cleaning or cooking, or gardening. 

Where an eligible dependent has suffered a loss of financial support or services, as result of the deceased’s death, a dependency claim can be made, provided that there is a reasonable expectation that the dependant would have continued to benefit, had the deceased survived. 

What compensation can be claimed in a dependency claim? 

Unlike an estate claim, compensation for a dependency claim is limited to special damages, but dependants could still be entitled to claim special damages for both past and future losses.  

The amount of compensation will depend on the circumstances of both the deceased and any dependent(s), meaning that every claim must be carefully considered on a case-by-case basis and individually assessed. The amount awarded should be proportionate to the particular loss or losses suffered by the dependent(s).  

Examples of losses which may be covered under a financial dependency claim may include: 

• Loss of income such as wages, pensions, employment benefits, savings and shares.  
• Loss of financial support such as child maintenance, university or tuition fees, driving lessons, birthday parties, holidays, gifts and weddings.  

Examples of lost services which may be covered under a services dependency claim may include: 

• Childcare 
• Household chores such as hoovering, washing, cleaning, cooking 
• Driving 
• DIY tasks  
• Gardening 
• Dog walking 

Other types of special damages in dependency claims: 

• Funeral expenses: Certain funeral expenses may be claimed, providing they were paid for by a dependent and have not already been claimed under the 1934 Act.  
• Loss of intangible benefits: A child or spouse/partner of the deceased may also be entitled to claim for the loss of the deceased’s love and affection, also known as a ‘Regan Award’. Whilst this is considered to be a type of ‘special damage’, it is actually an intangible loss i.e. a non-financial loss, with no fixed amount. However, previous case law suggests that awards typically range between £3,000 to £5,000.

Time limits for bringing a claim under the Fatal Accidents Act 1976 

Similar to the 1934 Act, the 1976 Act states that a dependency claim must be brought on behalf of all eligible dependants within 3 years of either the:  

• Deceased’s date of death; or 
• Date on which the dependent(s) had ‘reasonable knowledge’ that the deceased’s death may have been caused or contributed to by negligence (whichever date is later).  

Where there are multiple dependants, the date on which they first had ‘reasonable knowledge’ may differ and in which case, they may be subject to different time limits. 

This can make establishing the correct limitation period rather complicated, and it is very important to seek legal advice, as soon as possible. 

Why choose Fletchers solicitors for your fatal accident claim? 

At Fletchers Solicitors, our experienced personal injury and medical negligence lawyers specialise in all types of fatal accident claims, including those arising from road traffic collisions, accidents at work and medical negligence.  

We have been helping bereaved families for over 30 years, supporting them through some of the most difficult times of their lives and helping them secure the compensation they deserve. 

We’re proud to be ranked as one of the leading personal injury and medical negligence law firms in the UK.  We’re recognised for our supportive, client-first approach, ensuring that every family we represent is treated with the upmost compassion, care and respect.  

With Fletchers by your side, you have a trusted partner who will ensure your family receives the justice and compensation you deserve after experiencing the loss of a loved one. 

If think that your loved ones death may have been caused, or contributed to, by another person’s negligence or wrongful act, please contact our team who will listen to your experience and give you a free, no obligation case assessment. 

• If your claim is unsuccessful, you will not pay anything.  

• If your claim is successful, we will try to recover most of our legal fees from the Defendant, or their insurer. If there is any shortfall remaining, we will deduct a pre-agreed percentage from your final compensation figure.  

We will discuss full details of the available funding options with you, at the start of your claim. 

Alternatively, the personal representative may be able to instruct their solicitor to send the compensation to the relevant dependent(s) directly.  

However, if the dependent(s) have brought a separate claim, the compensation will usually be paid directly to them.