- July 30, 2012
- By Sam David
- 0 comments
Compensation for death due to negligence
It is always deeply upsetting for a family to lose a loved one, particularly if they have died as a result of another’s negligence. Unfortunately, the current law on compensation in fatal accident claims can produce some very unfair results.
Claims arising from fatal accidents can be brought both by the Estate of the deceased and by the deceased’s dependents under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 respectively. The latter claim is usually brought on behalf of each and all of the dependants by the Executor of the Estate or the Personal Representatives in the case of someone who died without leaving a will.
Under the Law Reform Act, the Estate can essentially bring a claim for the pain and suffering which the deceased experienced before death; for funeral expenses paid by out of the Estate; for care which the deceased required before death and for the loss of the deceased’s earnings which may have accrued between the date of the negligence and death.
Under the Fatal Accidents Act, the heads of loss under which claims can be made are broader and include bereavement damages, loss of dependency on the deceased’s earnings and pension and also on the services which he or she might have provided such as DIY, childcare and such like.
The award for bereavement damages is fixed under the Act at £11,800 and can often seem to families to be very little compensation indeed for the loss of their loved one. In addition, the classes of person who can claim bereavement damages are limited to:
- The spouse or civil partner of the deceased;
- The parents of an unmarried child under 18 if the parents are married; or
- The mother of an unmarried child under 18 if the parents are not married.
Therefore, an unmarried father whose young daughter died in a road traffic accident, for example, would not be entitled to bereavement damages whereas her mother may well be. In our modern day society, many couples live together and have children without marrying and unjust results occur because the law is so restrictive. Whilst no amount of money can compensate for bereavement, it is clear that an unmarried father is just as bereaved as a married one.
In respect of the dependency claim, the term “dependant” refers to several different classes of person but most notably:
- The spouse or former spouse of the deceased;
- The civil partner or former civil partner of the deceased;
- A person who was living with the deceased at the time of their death, and had been for at least two years prior to their death, as their spouse or civil partner.
Again, this narrow classification can and does result in unfairness. A spouse or civil partner does not have to show that they had been living with the deceased for two years prior to their death whereas a partner in a cohabiting couple does.
Therefore, it is possible that a woman who was married to the deceased for 6 months could bring a dependency claim whilst a woman who lived with her partner for 6 years and was pregnant at the time of his death would not be entitled to.
There have been calls for the law to be changed for many years. Proposals for reform were made following the Department for Constitutional Affairs 2007 Consultation Paper on the issue but despite receiving approval from the House of Commons Justice Committee, in January of last year it was announced that the reforms would not go ahead.
The issue was challenged again in the very recent case of Swift v Secretary of State for Justice which was heard before Mr Justice Eady earlier this month.
Miss Swift’s partner, Mr Winters, was killed in an accident in 2008. They had been living together for 6 months and their son was born after Mr Winters’ death. Miss Swift therefore did not qualify as a dependant under the Act and sought to challenge this as being in contravention of Article 8 of the European Convention on Human Rights – the right to respect for private and family life.
Whilst Mr Justice Eady sympathised with her situation, he did not consider that the Act was incompatible with Article 8 and therefore her claim was dismissed. He did go on to say that he had “little doubt that the law will at some point be changed so as to help others in a similar plight”.
However, until such time as the law on fatal accidents is changed to bring it up to speed with modern life, unfair and harsh results will continue to occur.