The rules for proving liability for a fatal injury are much the same as those applicable to a personal injury claim made by a living person. Ordinarily, there is a claim based on the defendant's negligence and/or breach of statutory duty. And the evidence, such as an expert's report on the circumstances of the injury and a medical report on the injuries that led to death, may be similar to those that a living claimant produces for a non-fatal injury.
As explained below, however, there are some ways that a claim for fatal injury will differ significantly from a claim for a non-fatal injury. In particular, in relation to the parties who bring the action, some aspects of the law on which the claim is based, and the basis for determining damages.
Who may claim for fatal injury?
There are two main causes of action that arise when a person is fatally injured.
First, the Law Reform Act 1934 permits a dead person's estate to bring the claim that the deceased would have had had he/she not died. In effect then, what would have been the deceased's personal injury claim (had they survived) becomes their estate's claim.
Second, the Fatal Accidents Act 1976 allows 'dependants' to bring an action and recover:
- financial losses they suffer following the death;
- bereavement damages; and
- funeral expenses.
Ordinarily, the deceased's personal representatives (i.e., the executors of their will or the administrators of their estate if they died without a will) bring the claims under both of these causes of action, although they do so for the benefit of the estate and/or the deceased's dependants.
Who receives the damages?
For a claim under the Law Reform Act 1934, damages will pass to the estate. The estate will then distribute the money in accordance with the deceased's will or the intestacy rules if they died without a will.
For a claim under the Fatal Accidents Act 1976, damages are distributed in accordance with the strict terms of the statute. Note the definition of 'dependant' is fairly broad and includes a spouse or civil partner, parents, children, various other relatives and a cohabitee who, although not legally married to the deceased, lived with the deceased as a spouse or civil partner for at least two years prior to the deceased's death.
How much will the deceased's estate and/or dependants get?
Damages for a successful claim under the Law Reform Act are generally lower than under the Fatal Accidents Act.
Under the Law Reform Act, the estate can recover damages for loss of earnings and for pain and suffering, but those are the deceased's loss of earnings and pain and suffering. If the deceased was killed instantly in the accident, then those damages will amount to little, if anything. That is because there will have been no interval between the accident and death during which the deceased would have lost earnings or would have suffered pain. (Although if there were such an interval, there would be damages, and if the interval were lengthy they could be significant.)
Damages under the Fatal Accidents Act, on the other hand, can be considerable. If the deceased was a wage-earner, particularly if they were the sole breadwinner for a young family, damages may end up being very high. They are calculated in a somewhat complicated manner, which is designed to take into account the deceased's age and earning capacity, as well as the way that they typically shared their earnings with their dependants.
Note, if there is more than one dependant who can make a claim under the Fatal Accidents Act, the court will apportion the damages among the dependants.
The Fatal Accidents Act also provides for compensation for bereavement, but this is only for the spouse of the deceased or, if the deceased is a minor, his/her parents. In addition, compensation for bereavement is fixed, as of May 2010, at £11,800.
If you're a personal representative or dependant of the deceased, Contact Law can help you find a quality-assured local solicitor who specialises in fatal injury claims . There is no charge to you for using this service.